We are two brothers having joint ownership of the property after death of our father. We have one-half share each in the property. Both the brothers and their families are living in the house which is big house. I am in need of money for my business and I want to sell the house, but my brother does not want to sell the house. I asked him to purchase my share and give me money, but he does not want that also. In these circumstances can I sell my 50% share in the house without the consent of my brother, who is co-owner? Can he object to my unilateral sale of my share?
Being a co-owner of 50% share in the property, you can sell your share. Under the provisions of Section 44 of the Transfer of Property Act, 1882, a co-owner can transfer his share in an immovable property and this section lays down as to what rights are acquired by the buyer / transferee in such case:
“44. Transfer by one co-owner.— Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him of joint possession or other common or part enjoyment of the house.”
In your question, you have mentioned that the property co-owned by you is a residential house, therefore, in view of (the second part of) the above legal provision, the buyer will not get a right to joint possession of the house or right to part enjoyment of the property if he is not a family member, but he will get all other rights of co-ownership as provided in the main part of the above section.
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