• Dismissal of case and some general property questions

Hello sir,
1) A judge in Hyderabad has recently dismissed our case on the grounds that none of our lawyers were present at the court hearing. This case was pertinent to a property dispute between our family members. I was just wondering if in this situation I could register my house with my dad's will who is deceased. 
2) Furthermore, I was wondering if any of my family members could potentially reopen this case and what its status would be once the said case is reopened? 
3) Due to the unforeseen circumstances of my father's death, my mom is currently left as a widow. So I was wondering if my mother can write a will pertaining to properties on my father's name and if the said will would be viable?

Thank you and have a great day!
Asked 4 years ago in Civil Law

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13 Answers

The case is dismissed for the default an application for restoration of.case on same number can be filed if the application is.accepted then the order of dismissal will be set aside and case will be restored to its stage it last running on before.dismissal. if the case was running on your.fathers name than the legal heirs can be brought on record and along with the restoration.application.

The case will be restored.to it's original position it was on before dismissal.

No your mother.cannot dispose of your father's properties by will the properties will.n distributed by the law of succession among all legal heirs. A will can be made.by.the person having title.of.property your.mother cannot make it on your father's name. In this.case your father has demised imtestat and the laws of Succession shall apply

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Mother cannot write will pertaining to your father properties unless she is absolute beneficiary as per father will

2) dismissal of suit can be set aside by trial court or in appeal

3) you can apply for mutation of property as per father will but better apply for probate

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1) If a suit is dismissed for "default" on any reason, you have to file a petition under Order 9, Rule 9 CPC before the court, where the suit was dismissed. In case of non filing the said petition within the stipulated period, you can also file a delay condonation petition under Section 5 of Limitation Act.

2) If the property is in name of your deceased father's than get registered all legal heirs name on the property.Than you will be able to make a WILL from your mother.

3) If your father had made any WILL and if that is registered deed than it can be excuted.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1.It is not clear you were plaintiff or defendant in the suit which was dismissed for default or decree was passed ex parte.

2.in either case if proper explanation can be shown for absence of the advocates then judgement would be set aside and the case would be reopened.

3.ANother option is to prefer an appeal beofre the higher court and if there is merit of the appeal the case would be again reopened.

4.Your mother can execute a Will only in respect of proeprty standing in her name of inherited by her from her husband. With regard to any other proeprty her Will would be ineffective.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Querist

my opinion on your queries are as under:-

1) A judge in Hyderabad has recently dismissed our case on the grounds that none of our lawyers were present at the court hearing. This case was pertinent to a property dispute between our family members. I was just wondering if in this situation I could register my house with my dad's will who is deceased.

Opinion:- if your father executed a Will in your favour then you can do what ever you want to do without any restriction, as the case has been dismissed in default so no need to worry.

2) Furthermore, I was wondering if any of my family members could potentially reopen this case and what its status would be once the said case is reopened?

Opinion:- only the plaintiff or any of the plaintiffs may file an application for restoration of case which has been dismissed in default and not other.

3) Due to the unforeseen circumstances of my father's death, my mom is currently left as a widow. So I was wondering if my mother can write a will pertaining to properties on my father's name and if the said will would be viable?

Opinion:- as your father is no more hence a will in his name will not be valid as can not be executed.

Feel free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

Hi

What exactly you want ? What is the nominclature of the case dismissed by court ?

You can get the case restored to its last position and contest it.

It is always better and advisable to obtain a contested decree and go ahead.

The options you wanted to check does more harm than good to you. The same leads to multiple litigation.

The option of WILL does not solve your problem but it creates more problems and complications.

Other way:

You get the case restore to its last position and talk to all the contesting members to the case and get a compromise decree.

Good Luck

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

Even if the case is dismissed due to non availability of the lawyer in the court, the case may be filed again in the court and some lawyer must be present when the case is called for hearing.

Normally in case the lawyer could not be there he can send massage to the court by any of his associate for the reason and request time for the same day or a new date.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. If currently there's no Court order into operation, restraining you from doing so, you are free to register this house.

2. Yes, it can be opened. Once restored, it will proceed from the same stage where it was left, the matter having been dismissed.

3. Any such properties that have been inherited by her post demise of your father, can be bequeathed by her by means of a will.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Client,

What is the actual dispute in court, who filed it ?

On the basis`s of WILL, property inherit in your u and so the title. Get it transfer.

How can advise the status of case, without knowing the nature of dispute, well if it reinstate, it will assume same stage/status and orders effective before dismissal.

WILL cannot be executed in dead person favor.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

Answered your questions as follows:

1) A judge in Hyderabad has recently dismissed our case on the grounds that none of our lawyers were present at the court hearing. This case was pertinent to a property dispute between our family members. I was just wondering if in this situation I could register my house with my dad's will who is deceased.

Ans: In such case before it is reopened or appeal/revision is preferred you have every right to act according to your wish and get transfer the house in your name as per Will of your father.

2) Furthermore, I was wondering if any of my family members could potentially reopen this case and what its status would be once the said case is reopened?

Ans: Yes, by filing a miscellaneous application by other party it can be reopened but only after serving a copy upon you.

3) Due to the unforeseen circumstances of my father's death, my mom is currently left as a widow. So I was wondering if my mother can write a will pertaining to properties on my father's name and if the said will would be viable?

Ans: No, your mom cannot write Will pertaining to properties standing in the name of your father. For more issues please call me.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. In furtherance of the will you may get a probate and then may dispose off the property.

2. yes a recall application can be moved and the case can be reopened, if it reopens then the same will re open from the stage from where the same was dismissed.

3. Without getting the title of the land she can not make a will, though she can make a relinquishment deed in advance and relinquish her share.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. It is not known that why did you approach court and what was the nature of suit you have filed or what was the relief you sought through court.

However the dismissal of the suit has nothing to do with your personal acts on the property.

If you have a will in your favor reportedly written by your father then you can very well act upon it to enforce the bequest made accordingly.

If it was not a registered will then you may have to obtain a legal heirship certificate from the revenue department confirming the list of legal heirs and their no objection to transfer the properties to your name.

Alternately you can get the will probated through a court competent.

There is no registration needed to be done on your name for acquiring the properties through a will.

2. If the plaintiff decides to reopen the suit, he/she may file a petition seeking to set aside the dismissal order under order 9 rule 9 of CPC, the court will reinstate the suit to the same status after allowing the petition.

3. Your mother cannot become owner of the entire property, she can writ a will in respect of her share of property alone

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Hi,

This can be restored on filing suitable application.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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