• Injunction

In 2007 my grand mother gifted a house to my mother (the gift was dully registered).  My Uncle is a rogue guy(mother's brother).He was waiting for my grand mothers death. After her death in dec 2013 , he filled a case claiming that the deed of gift was faulty and wanted share in the property. He somehow managed to get an injunction. But before he could do that my mother gifted the property to my father, prior to the date of injunction( Again gift deed was duly registered) . Now my Uncle set to throw another injunction to my father. My Father want to sell this house now.1) will he be able to get a restrained order if my Father want to sell this property? will he get injunction as The Specific Relief Act, 1963 sec-41 says that no injunction is granted when  the plaintiff has no personal interest in the matter.It is to be noted that my maternal uncle is no way related to my Father .It is my father's property now.2)Can he do anything  to delay the sale.3)What he can probably do in this situation? 4) What precaution we can take.




Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
Hi
1 .Your Uncle has initiated the proceeding and you will  have to defend  on the same facts that now the property has nothing to do with him as it was gifted to your dad absolutely.

2. Sec.41 of the act, will not disqualify him approaching the court as the property basically belonging to was his mother and he had aright where inheritance takes place in the normal case of a legal heir.
.
3.His injunction suit  will not sustain ,  as  the gift deed by your mother was absolute and legal and there is nothing to worry about it.
4. If he moves a suit and get an interim injunction , the sale can be stopped and it will delay
if your father is planning to dispose the property he should proceed with the sale as of now there is no order restraining the sale.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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1. The injunction was initially granted against your mother who has now gifted it to your father, so the prospects of getting an injunction are bleak to say the least. However, anything is possible in the court as the result of a courtroom battle is uncertain. To rebut his claim your father can fittingly contest the injunction as and when your uncle seeks it.

2. If your father sells the property the subsequent sale can be challenged in and set aside by the court.

3. Your maternal uncle, in order to succeed in getting a stay, will have to show that the gift deed is vitiated by use of force or fraud.

4. Your father as the owner of the house is at liberty to sell the house.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) once gift deed is made duly stamped and regd your mother is absolute owner of property

2)  your uncle is entitled to move court to set aside gift deed 

3) since your mother had already gifted property to your father your uncle can amend suit and seek stay

4) court will grant order for maintenance of status  pending hearing and final disposal of suit 

6) the reason being suit would become infructous if properly is allowed to be sold pending trial 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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A. The said property was the absolute property right of your grandmother, hence the gift deed is valid.

B. On the basis of Gift Deed that your father can transfer the property to any third parties. However, it may be delayed due to your uncle's interim application may be considered for not alienate the property till the disposal of the suit.

C. Therefore, You can file a an objection over the Interim application and make a strong argument on the basis of non merits in this case. The Court will hear the interim application on the basis merits of the case.
B.T. Ravi
Advocate, Bangalore
736 Answers
30 Consultations
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Your father is the absolute owner of the property right now.

The injunction granted by the court is only temporary. Contest the case properly.
Is the case filed by your uncle is to set aside gift deed? What was the injunction order? If the injunction order is silent from alienation of the property, then your father can sell the  property  to any body. 

If he know about the sale, he will file stay petition regarding not to alienate the property to others .then the  sale can be stopped and it will delay
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1) court will direct maintenance of status quo as advised earlier . 

2) if you are able  to produce declaration signed by your uncle it will help you in convincing court not to grant stay 

3) you can seek expedited hearing of case as your father is a senior citizen 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. The declaration made by the uncle can be used in the court to rebut his case.

2. Your mother being the owner of the property in the question after the gift deed was made in her favour was at liberty to gift it to her husband. We cannot foretell the judgment of the court though.

3. The only step you can take to counter is to contest his case as and when he seeks an injunction.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
What was the relief asked in present  case ?The details is important for providing a correct legal opinion. As per the earlier query Your father is the absolute owner of the property which got from your mother as a gift. Age is not a matter for contesting a case .He can give power of attorney to you for contesting the case before the court if he is unable to attend the court .
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. Your Uncle certainly has pernal interest in the said property for which he has claimed share and got injunction from the court against your mother's dealing with the property,

2. He can file an application  challenging the gift deed executed and registered by your mother and also apply for the stay order from the Court against your father's dealing with the property on the ground that thet gift deed registered in his favour has already been challenged and pending to be disposed off,

3. Your father can sell off the property before any stay order is passed restarining him in selling the said property but he shall have to refund the saled proceeds to the buyer in case it is ordered by the Court that your uncle is also co-oener of the said property. 
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
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1. If he has made such declaration, then collect certified copy of it and produce before the Court to negate his claim on the property gifted to your mother,

2.What DVC has to do in this matter?

3. You shall have to find out the address of the said property gifted to your uncle and collect the certified copy of the said gift deed wherein he had declared that he has no claim on your mother's property,

4. However, I have strong doubt such declaration by a donee in a gift deed executed and registered by a Doner since in gift deeds such declarations from the donees do not feature. Donees just accept the gift,

5. Your Uncle can get injunction on sale of the property by your father the way he got it against the dealing with the property by your mother after it was gifted by her to your father, if your lawyer does not contest it fittingly with valid arguments.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
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1) housing loan taken by your gran father from DVC is immaterial 

2) it is  at court discretion to grant stay or not   

3) declaration made by you uncle wherein he declared that  he would have no claim on mother property will help you in your case
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. As I said earlier, your uncle cannot backtrack from the declaration given by him in writing. He was gifted another property for renouncing his rights in the property gifted to your mother who has subsequently gifted it to your father. 

2. If you have proof of the property being gifted to your uncle by his father then it can be used to defeat his claim in the court. 

3. You are free to approach DVC. Whether or not it can help you will be known to you only after you request it for help. So you can issue a lawyer's notice to DVC.

4. Your uncle may or may not get the stay from the court. The utmost you can do is contest his claim in the court. What the court will do cannot be predicted by any one.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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It will not be contempt of court. You can produce the document to rebut his claim. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) in your reply you have to sate these detailed facts and oppose grant of stay 

2) it is not contempt of court as it is not willful disobedience of court order . 

3) your stand should be that your uncle has not come to court with clean hands has suppressed material facts and is not entitled to any reliefs 

Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
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1. You were to bring this fact before the Court and prayed before the Court for a direction upon your uncle to submit the said Gift Deed evidencing that he had no objection for the said gift deed in favour of your mother,

2. Was the said declaration on Rs.10/- stamp paper a part of the gift deed? If no then where is it? Your Uncle will surely deny existance of such declaration and it will be your responsibility to discover it in your interest,

3. For suppressing the fact, the judgement in the case filed by your uncle is expected to go against him,

4. It is not a case of contempt of court.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
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