• Injustice Demand by father's brother for sake of property

Hello All, 

I am writing this appeal to the master minds here in the domain of Law after being vexed up by the cruel mind of my relatives who are in a determined state to grab the property from my father. 
I am working as a software professional in Hyderabad and hereis the story of my father’s biggest headache. 

They are 4 Brothers. They thought of constructing a house by demolishing the old house. Among the 4, my father is elder one followed by 3 younger ones. 
Their professions are listed below.
1 - Elder One (my father) - Working as Assistant Sub-Inspector in Police Department. Shifts to a different place every 3 years. 
2 - First Brother - No fixed job. Does Finance, Real Estate, Insurance Agent and whatever to earn money. Stays in home town. 
3 - Second Brother - Working as a Judicial Clerk in District Magistrate Court. Shifts to a different place every 3 years. 
4 - Fourth Brother - Working as a technician in local citi cable office. He too does finance. Stays in a city (vizag) since he was brought up there. 

                 As they had money deficit during the construction phase, they thought of applying for housing loan. Since, my father is a government employee and there is a lot of scope to get loan easily, all of them agreed to write the property on my father's name under the clause of "Daana Patta". Once after writing the property on my father's name and registering it, they applied for House Loan and it was sanctioned. They also agreed upon the condition to pay the EMI divided by 4. 
                The construction was completed. Once after the inauguration, the house was occupied by 2nd brother since he is residing in the home town from his birth and on the other side, it is not possible either to my father or his 3rd brother since they are relocated every 3 years. 4th brother travels once in a month to home town and it is neither possible for him. During the first 15 months, everyone paid their shares for EMI's without fail. Due to some financial reasons, my father and 3rd brother paid less amounts among their shares for couple of months.                    
                My father was transferred to nearby place of his home town since the land was cheap at outskirts (Year 2004) and he took forward the step to construct a house for ourselves by applying another housing loan. We constructed the house and we stayed for 6 months. We got severe problems and after many consultations with Astrologers and vasthu experts, we found that there is a big flaw in the plan. My father had sold that property and we encountered a very big loss financially. Even the relations between the families of the 4 brothers were not that great. 
During that time, 2nd brother called up for a meeting (without families) to discuss about the extra interest that is levied due to less payment of EMI's. All of the 4 met and discussed about the future payments. 3rd brother decided to quit the scheme because he is not earning enough money to meet his needs. Then, my father suggested remaining two of his brother to take the ownership of the house by paying amounts that others had paid. The 2nd and 4th claimed that they don't have amount to take the ownership. Then, my grandmother conveyed her last wish not to sell the property and should be owned by any of the four.
My father sold the other house which we constructed and said that he will take the owner ship of this house. 2nd brother got the site valuation and they made their calculations and my father paid the amounts to all. Papers of those calculations are available with my father. There is no written agreement or something stating that my father cleared off the debts / my father didn’t clear off the debts. 2nd brother is staying in that house without from its inception. We didn’t ask to pay any rent since my grandmother’s maintenance was being bared by him. 
My father took loan and constructed one more floor which was let out to rent now. Due to raising prices, the property value increased to 60 Lakh. Now, 2nd brother is asking my father to write that property on his name. There was a discussion and during the discussion, 2nd brother claimed that my father had forced all the 3 brothers to write the property on his name. They are false propaganda on us with our relatives. 
My father is really worried about this. Even me. Please suggest me what I should do to get this property!
                 
Thanks,
Krishna Chaitanya
Asked 2 years ago in Property Law from Tuni, Andhra Pradesh
1. You have stated that the house was gifted to your father by his 3 brothers. Who was the original purchase of the house prior to the gift deed being executed? If your grand mother was alive at the time of execution of gift deed did she also sign the gift deed?

2. Your father became the owner of the property after the gift deed was executed in his favour. He was the applicant for the loan which was applied to and sanctioned by the bank/financial institution. So EMIs had to be paid by him alone. Now if he stops paying the EMIs the bank will attach the property. 

3. In terms of the gift deed executed by your father's brothers, your father is the owner of the house. He cannot force his brothers to contribute to the EMIs of the housing loan. Since your father's brothers are not contributing to the EMIs he can evict them from the property by filing a suit for eviction against them in the court. They need his permission to even live in the property of which he is the owner. This is the only legal remedy available to your father.

4. The brothers of your father may file a case for cancellation of the gift deed which they had made in favour of your father. However, they will be on a very sticky wicket in the court as they had executed the gift out of their free volition.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) since gift deed has been executed by all brothers in favour of your father as on date your father is baolsute owner of the said house . 

2) the housing loan has been applied for in your father name . responsibility of paying EMI falls on your father . 

3) further your father has paid X amounts to his brothers . you have not mentioned how was payment made by cash or cheque . 

4) if your father had forced his brothers to write property in his name what were the other brothers doing for so many years . even if they file suit for setting aside gift deed it is very doubtful whether court would pass any orders in their favour
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Hello,
1) As all the other brothers executed a Deed of Gift in favour of your father he is the absolute owner of the house that was constructed.

2) Now that the loan was taken in your father's name he is liable to pay the EMI each month regardless of the arrangements among brothers.

3) You or your father need not be much worried about the baseless allegations of the brothers that the they were coerced into making a gift deed as by the very essence a Gift is given with free will and without any kind of consideration or inducement. It would be nigh impossible for them to prove that there was any  use of force  in getting the Gift Deed.

4) As your father has made a settlement by making a payment as you mentioned your father must file a petition to evict the brother who is in possession.This should be done immediately even before the uncles think of making any legal steps.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
Hi,
If your father can prove that he has paid the said amount o his brothers, their claim will not substantiate.
2. There is not much possibility that they can get an order to cancel the gift deed .
3. The previous loan as well as new loan will be a favouring thing to prove your father that he has the intention to own the property and he invested his money ,irrespective of the disposition of the EMI contributed by the by the others.
4. Your father should actually evict him from the property by filing a suit. Legally and technically everything for a good case /merits  are favouring your father. He does not have to worry about the accusation that he has forced them to sign a gift deed. This can only be lame excuse
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1) once gift deed is executed duly stamped and regsitered your father is absolute owner of property . 

2) repayment of loan was made by your father .

3) even if your father dosent have evidence of cash paid to his brothers he still remains absolute owner of the said property .

4) your father should file suit for eviction against his brothers if they make his life miserable
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1. After the demise of your grand father who was the original purchaser of the property his legal heirs i.e his widow and children succeeded to his property in equal shares. Since all the legal heirs of your grand father had executed the gift deed in favour of your father the latter became the absolute owner of the property.

2. As the absolute owner of the property your father can evict his brothers from the property by filing a suit for eviction against them.

3. Any challenge to the gift deed by your father's brothers will have no legs to stand on in the court.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Hi,
1. your father should send a legal notice demanding them to vacate premise and then  file an eviction suit and the occupants, they will not be able to hold on to their claims .
2. The money paid to them can be established as he can show there was a source of money as he had sold his property.
3. The gift deed will be treated and will stand legal and any plea to cancel it will not be  allowed.
4. The loans are a favouring aspect to support your father in terms of documentary evidence so , he should go ahead to establish his absolute right and should evict the illegal occupants, his brother
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
1) In the light of the explanations you provided it is still the fact that your father now in the absolute owner of the property in virtue of the Gift Deed that the other heirs executed.
2) It is but imperative that the question of a consideration being paid would not arise as the very nature of gift does away with the aspect of any consideration received. Hence your father is in no way obligated to prove that he paid the brothers.
3) As your father is being tormented for being good natured, you need to prompt him to shed his soft nature for now and move a petition to evict the encroacher.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. The share of the property of all other brothers have already been conveyed to your father through Gift Deeds,

2. The loan for constructing the house has also been taken in the name of your fatjer,

3. Your father is now the absolute owner of the said property,

4. Hope mutation has already been done in the name of your father,

56. The claim that your father had forced his other brothers to execute the said Gift Deed has no merit since had it been so they should have reported the matter to local police which they have not done.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. make sure that when your uncles had executed the Gift Deeds in favour of your father, they did not have entered in to any agreement with your father in connection with the said property,

2. The property now belongs to your father. His brothers can not claim that they had gifted their share of the propertry to enable your father to avail loan for constructing house thereupon,

3. Your father can now file an eviction suit to evict his brothers.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
your father is the absolute owner of the house because of execution of gift deen in his favour. but there is some flaws that EMI is paid by all four brothers for several months. valuation is conducted and there was a proposal to sell the house to the real owner by rest of three brothers. if your father is absolute owner then how can valuation is conducted and how a real owner is ready to buy his own property. 
you should file civil suit for the specific performance of contract on the basis of agreement among the all brothers to pay emi jointly( if all dues are paid by your father then claim recovery od emi amount with interest from your uncles). it is sure that your uncles will refuse to pay it. then your father get that house in his name and evict all brothers from the house.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0

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