Selling my allotted share in family property without physical possession – Brother refusing to vacate

This is a common predicament where legal ownership and physical possession are at odds. Since you already have a Court Compromise Decree, your legal position is significantly stronger than a typical "undivided family" dispute. Here is the legal breakdown of your situation: 1. Right to Sell Without Consent Yes, you can legally sell your share. Since the 2023 Court Decree has already identified your share and mutated your name in the revenue records, you are the absolute owner of that portion. Under Section 44 of the Transfer of Property Act, a co-owner (or in your case, an owner of an allotted share) can transfer their interest without seeking permission from others. You do not need your brother's consent to register the sale deed. 2. Validity of "As Is Where Is" Sales A sale of immovable property is legally completed under Section 54 of the Transfer of Property Act once the sale deed is registered and consideration is paid. Physical possession is not a mandatory prerequisite for a valid sale. You can explicitly mention in the deed that the property is being sold on an "as is where is" basis and that the buyer is responsible for seeking physical possession. This does not make the sale "conditional." It simply transfers your legal "Right to Possession" to the buyer. The buyer can then use the 2023 Decree to file an Execution Petition or a Suit for Possession against your brother. 3. Ownership vs. Occupation Because of the Court Decree, your share is legally divided but physically unpartitioned. Your brother is not a co-owner of your share; he is technically a "Licensee" (someone staying with permission) or an "Occupant in Possession." However, until a physical wall is built (partition by metes and bounds), the law treats the possession as joint. This is why the buyer must be made aware that they are buying the legal title and will need to handle the physical separation later. 4. The "Preferential Right" (Pre-emption) Under Section 22 of the Hindu Succession Act, Class I heirs (siblings) do have a preferential right to acquire property if one heir intends to sell. However, this is not an absolute right to force a low price. The Market Value Rule: Your brother's right only exists if he is willing to match the fair market price offered by the outsider. He cannot force you to accept a lower price or installments. Recommendation: To protect yourself from future litigation, send your brother a Formal Legal Notice via Registered Post. State the price the outside buyer is offering and give your brother a specific timeframe (e.g., 15 days) to match that exact price in full. If he fails to do so, his preferential right is legally exhausted, and you are free to sell to the outsider. Final Advice: Ensure your Sale Deed drafted very carefully. It should clearly reference the 2023 Compromise Decree and the fact that the buyer is accepting the property without current physical possession. This prevents the buyer from later claiming you "concealed" the fact that your brother was living there. Once the deed is registered, the buyer legally "steps into your shoes" and can evict your brother through the court.