Construction on Undivided Property by Co-Owners - Co-owners, including brothers and sisters, can make constructions on their undivided property out of their own funds, especially when they have a recognized share or interest in the property. Such constructions are often upheld if made in accordance with legal rights or prior agreements. For example, in case
Prakash, S/o. Namdeorao Changole VS Shriram, S/o. Namdeorao Changole - Bombay
, respondent co-owners constructed on the terrace with their own funds, and their shares devolved upon their heirs, supporting the notion that co-owners can build on their undivided interestPrakash, S/o. Namdeorao Changole VS Shriram, S/o. Namdeorao Changole - Bombay
.Partition and Rights to Construct - When property is partitioned among brothers or family branches, each can make constructions on their allotted share or undivided property, provided it does not violate legal restrictions. In 2025 Supreme(Online)(Bom) 4139, brothers made constructions on their respective allotted shares, and courts recognized their rights, especially when the construction was supported by prior partition agreements or court decrees.
Undivided Family and Property Rights - Under Mitakshara law, an undivided family holds property collectively, and individual members cannot claim a definite share until partition. However, members can make constructions on the undivided property, especially if they have a share or the property is jointly owned. As seen in 2023 0 Supreme(Del) 159, even if the property is undivided, co-owners residing together are considered part of an undivided family, and their rights include making constructions on the property they jointly own.
Legal Restrictions on Fragmentation and Sale of Shares - Sale or transfer of undivided shares is subject to statutory restrictions to prevent fragmentation below a certain extent. Courts have held that a purchaser from a co-owner of an undivided share cannot claim exclusive possession or rights over the entire property unless partitioned. In 2023 Supreme(Online)(MP) 27239, the sale of undivided shares without proper partition was contested, emphasizing that construction or transfer rights are limited unless the property is properly divided.
Construction and Litigation - Courts have often recognized that constructions made by co-owners on undivided property, especially when done with funds or prior agreements, are valid. However, unauthorized or wrongful constructions, especially after legal disputes or without proper partition, may be subject to removal or legal challenge, as in 2024 0 Supreme(Kar) 88 and 2024 0 Supreme(P&H) 968.
Analysis and Conclusion:A co-owner, including a brother, can legally undertake construction on their undivided share or property, especially if such construction is made out of their own funds and in accordance with legal procedures or prior agreements. Courts generally uphold such constructions when they do not violate statutory restrictions or infringe upon other co-owners' rights. However, unilateral or wrongful constructions without proper partition or approval may lead to disputes and are often subject to legal scrutiny. The key factors include the nature of ownership (joint, undivided, or partitioned), the source of funds, prior rights or agreements, and compliance with legal restrictions on sale or fragmentation of property.
References:-
Prakash, S/o. Namdeorao Changole VS Shriram, S/o. Namdeorao Changole - Bombay
- 2025 Supreme(Online)(Bom) 4139- 2023 0 Supreme(Del) 159- 2024 0 Supreme(Kar) 88- 2024 0 Supreme(P&H) 968- 2023 Supreme(Online)(MP) 27239
