My father had signed a sale agreement in 2007 of two of the property - one is 4.20 acres (88 plots) and another 2.20 acres of farm land to a marwadi in our town. The 4.20 acres which is turned to 88 residential plots is in my name since the year 2000 and the other land 2.20 acres is in my fathers name. The mentioned properties are our ancestral properties. The said agreement of sale says Rs. 10,000 has been paid towards the purchase and the total sum of the sale is 45 lakhs. My parents and we children protested with this sell and refused to honor the agreement. Marwari went to court. My father was suffering from stroke and passed away 2 years ago and I was out of country. The court ruled in favor of Marwari in both my father and my absence (I was put Ex-parte). I have hired another lawyer to have him file civil miscellaneousness to reverse the previous judgement. Now what are our chances? Do we stand to lose? What if we refuse to honor the agreement of sale? Does my father have the right to sell the property (ancestral) that is in my name? What about the other property (ancestral as well) that is in his name? I will really appreciate your answers.
if exp arte order was passed you can make application to set aside exparte order . if you were owner of 4.2 acres of land since 2000 your father had no right to sell the said land . you have good case but you have to explain the delay of 7 years in taking out application for setting aside exparte decree .
other property if it was in father name he could dispose of only his share . you would have to prove property was ancestral
Hi. you have to prove before the court in spite of service of summons you have to show good cause for non appearance before the court. then only your mis petition will be allowed.
Thanks fellas! Much appreciate your answers.
thanks for your appreciation
you can go for setting a side exparte decree along with a application for condonation of delay,your case will be definetly heard after payment of cost.
your father has no right to sell the property which was not in his name.he can sell property which is in his name,for the rest you can file suit for declaration,declaring the sale as null and void
If the plot measuring 4.2 acres was in your name then your father could not have sold it. A property can be sold by only its legal owner. Since you were the owner of 4.2 acres of property you alone had the right to sell it. The second property could have been sold by your father as it was in his name. If, however, you can prove it to be ancestral then court will cancel the sale of this property as well.
The prospects of winning can be told by only your lawyer as he has the privilege of having perused all the documents including the case filed by the purchaser, albeit at first blush you seem to have a good case as you are on the right side of law. The only seemingly weak link is the delay in seeking restoration of the case.
Thank you so much for all the response. They were very helpful. This was in the civil misc. filed in the court, - "defendant No. 1 (*My father*) CANNOT execute alleged agreement of sale to the property of defendant No. 2 (*Myself*) without proving that, defendant No. 2 is the Joint family member of defendant No. 1 and land standing in the name of defendant No. 2 is Joint family property between defendant No. 1 and defendant No. 2 and defendant No. 1 is manager of joint Hindu family." So my question obviously is, If my father is considered a "kartha" or the "manager of joint Hindu family", Does he have the right to sell it? Please note that both the properties involved are ancestral properties. It's just that My father made this 4.20 acres in my name in the year 2000 for some reason and the other 2.20 acres bears his name. My father passed away 2 years ago. So even if my father is allowed (by law) to dispose off his share in 2.20 acres then who is going to receive the money from his share of sale?! Since he is no more and we the rest of the family members are stubborn not to sell any part of our land to the Marwari.
kartha can sell joint family property for the benefit of family . if your father had disposed of his share of 2.20 acres of land it is necessary to peruse agreement signed by him . was the agreement duly stamped and registered ? what were clauses regarding payment ? frankly without going through the documents it would be difficult to advice .
yes he has right to sell.On the death of your father, his HUF can continue and you (being his oldest child) shall be the karta after his death.
Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, states that a coparcener is entitled to bequeath his share in a joint Hindu family property by testamentary disposition (by executing a will) or intestate succession. Thus, your father can bequeath only his share in the joint Hindu family property and not the entire property of the HUF, as the entire property doesn’t belong to him and he is entitled to only a particular share in the said property.
He can bequeath his share in the joint Hindu family property to any person of his choice by executing a will—to you and/or to his grandsons and/or to his great grandsons to the exclusion of your sisters if he so desires. In the event that he does not execute any will, the property will devolve as per the rules of intestate succession applicable to Hindus under the Hindu Succession Act, 1956—his share in the joint Hindu family property shall devolve upon his Class I heirs (being his wife and all his children, including his daughters).
However, it must be noted that we have not come across any provision of law or any case law, which permits a person to bequeath property to another HUF. Thus, it would be advisable if your father bequeathed his share in the joint Hindu family property to you and your sons as individuals and not to your HUFs, respectively.Your father is entitled to bequeath his personal property to any person, including his son, his grandsons and great grandsons or to any other person who he desires in any ratio whatsoever by executing a will which reflects his intention.
The will must be in writing, the testator must sign the said will in the presence of two or more witnesses, who should also attest (sign) the will. Your father can’t bequeath any part of his property to a signing witness. It is advisable that your father appoints an executor to the will—if for any reason the will is challenged, all the property bequeathed under the will shall vest in the executor prior to the dispute being settled.
No. The agreement was not registered. The agreement is written on Rs. 100 each (1 for 4.20 acres that is in my name and the other for 2.20 acres which bears my fathers name). The clauses is simple - Rs. 10,500 paid for each of these property during agreement and the rest which is 35 Lakh (for 4.20 acres) and 12 Lakh (for 2.20 acres) to be paid upon execution of sale deed.
@ Rajiv Bari You misread my Qs sir. My questions are not about the will or the law governing that aspect. They were about property, specific performance of agreement of sale of real estate / land, agreeements / contract, HUFs and property etc.
as far as property standing in name of your father is concerned if your father had signed agreement it would be binding on the legal heirs . if your father subsequently failed to execute sale deed in favour of purchaser he could sue for specific performance of the contract . as far as 4.20 acres are concerned you are on better footing . your father had no power to sell property standing in your name . you have a long legal battle ahead .
agreement in this regards have to registered,in case it is not registered then fighting becomes tough and take time
He has sued us for specific performance of the contract. As the legal heirs what if we refuse to execute sale deed? What would happen? We do agree to pay back his Rs. 10,500 with interest. Since this is ancestral property, what remedy do we have?
It is almost impossible to state anything with precision by applying legal mind unless a threadbare perusal of all the documents is made. To put it succinctly, if your father had made the agreement and then dishonoured it the purchaser could have sued you to honour the agreement and pass over to him the legal rights intended to be conveyed originally by the agreement he made with your father. Now the only way you can repel any such legal attempt by the purchaser is by proving that your father did not have any right. Every thing hinges on the documents which form an inextricable part of this case, and how the law is applied thereto.
If the property is ancestral then prove it to be ancestral in court. The agreement can be cancelled by the court if it has been made respecting a property which is ancestral in nature.
the agreement executed by your father as mentioned earlier would be binding on legal heirs . you cannot take the defence that you are willing to refund only Rs 10,500 with interest . you have to prove that it is ancestral property and that your father had no right to sell the property staning in his name .
It's not difficult to prove that the property is ancestral. I could get the property documents from Registrars/Tahsildar's office. I would like to know - if the property is ancestral, then my Father has no right to sell it even if it's in his name? Even as Kartha? What does the law says?
He can sue for specific performance of the contract only if it states that agreement is binding on legal heirs also. and he can prove that an agreement was entered by him and your father ,irrespective of the fact it is registered or not
kartha can sell the property owned in the name of HUF only in case of legal necessity for family needs and for benefit of the estate.
as a kartha he has right to sell the property ifor the benefit of family members.
@Rajeev Bari The agreement doesn't state that it's "binding on legal heirs". I thought it automatically binds legal heirs regardless of whether "binding on legal heirs" is specifically mentioned in the agreeing document. The contents of the agreement is very simple - Rs. 10,500 paid at the time of agreement and the rest which is Rs. 45 Lakh to be paid upon execution of sale deed. Also, who is suppose to prove that the selling of property was for the benefit or family members or estate? I suppose the buyer?
you are contesting the suit for specific performance suit . it is your case that your father had no powers to sell the ancestral property . you will have to prove sale was not for benefit of family members
What does the "benefit of the estate" constitute? Could you please give me some examples?
@ Mr. Sethi Yes indeed you are right. But as for the court, isn't it common sense that the entire family is against the sale of this property and therefore it is obviously not for the benefit of the family members! If the selling was beneficial to family then why would family oppose it's sale? They would have certainly agreed for sale if the sale was beneficial for them.
anything done which is of positive benefit, will amount to benefit of estate. The test is that anything which a prudent person can do in respect of his own property
alienation made by karta without legal necessity / benefit of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any coparcener.
In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Gauhati High Court was called upon to decide whether the Income-tax Officer can challenge the validity of an alienation by the karta of a Hindu undivided family. The High Court held that under the Hindu Law, the karta of a Hindu undivided family has an unfettered right to alienate the joint family property for legal necessity and for the benefit of the estate or the family. It was further held that even if a transfer by the karta were not for legal necessity or for the benefit of the estate, but if it is done with the consent of the coparceners, it would be only voidable and not void ab-initio. It is clear that alienation by the karta or manager of a joint family is voidable, but not void. Hence, a third party cannot repudiate it, except in cases where there is a suggestion that it was in fraud on creditors.
As I have already stated, if the property is ancestral your father could not have sold it. There is nothing such as ''common sense'' in a legal proceeding. A court operates within the law. Even if all the family members were opposed to sale of property your father could still have gone ahead and sold it if necessitated in the benefit of family. In your case the proposition is not sale for the benefit of family, it is whether the agreement has been rightly made. You have to prove that it is illegal.
You have been advised sufficiently now. Discuss the issue further with your lawyer.
Thank you all for your answers. They were extremely helpful.
thanks for your appreciation
Thanks you for appreciating.