• Release of property

My case is regarding recovery of money under order VII Rule 1 and 2 read with sec 26 of C.P.C. 
My father was a government employee who expired in the year 2018. Few people from his friends have filed the suit amount recovery case on legal hairs i.e., on me(married), my sister(unmarried), my mother. Court has given the property attachment saying not to dispose property or give third party assurance for the total amount. case is being held in court since 2018. i have few questions regarding this case could you please assist on this.
1. my whole property gifted by my grandfather is held in court which i cant disclose it.
i wanted to dispose a part of property which is court gifted by my grand father for my sisters marriage to bear the financial expenses.
2. As my father is government employee the profs submitted by the opposition members are fake once where no signature matching. It is a false acquisition case.
3. Is it possible to request the court to release the part of property for my sisters marriage. the other one which held in court will meet the claimed amount. total 3 properties 1. commercial building, 2. open plot, 3. open plot. I want to sell one of the scheduled property of open plot for my sisters marriage.
4. this question is for the other case Is it possible to file the suit after 3 years of my fathers demise.

please assist on this.
thank you
Asked 15 days ago in Property Law
Religion: Hindu

8 answers received in 1 day.

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11 Answers

1. If the property as gifted to your father then it becomes your father's property which cannot be sold by you during the pendency of the money recovery suit.

If it was gifted to you by your grandfather by a registered deed, then it is your own and absolute property, which cannot be attached by court for the purpose of security towards suit amount for the loan borrowed by your father.

In that case can file a revision petition before high court to set aside the orders of the trial court for attachment of the said proeprty and once the orders are set aside, you can sell the property.

2. This is a matter of trail, you can challenge their claim in the trial proceedings properly with the ability and skill of your advocate. 

 3. The court will not accept your request once an order has been passed in this regard.

You may have to challenge4 the trial court's order only before high court by filing a revision petition, you may discuss with your advocate and proceed if recommended 

4. If the claim was barred by limitation then the court would not have accepted the case nor it would have taken the case on its file.

Since it is not barred by limitation, the case is taken up for trial. 

You may first ascertain the facts through your advocate or furnish proper details if you are really interested in getting a proper opinion from this forum. 

T Kalaiselvan
Advocate, Vellore
72170 Answers
1078 Consultations

5.0 on 5.0

Hi 

Given that the property has been gifted by your grand father, the court cannot attach the same for settlement of your father's liabilities .

Also, in your case, legal heirs are responsible for settlement of dues of father if and only if the money borrowed is used for settlement of family expenses. 

In your case, you should challenge the order attaching properties during the pendency of lis (civil suit) on the grounds that 

a) Legal heirs have not inherited the attached property from the father 

b) Legal heirs are not liable for the dues of the father as the said dues were not for family purposes.

c) since you have 3 properties, value of 1 property is sufficient to discharge the liability

d) any such property is a gift from grand father which cannot be attached. 

e) yes. the legal heirs can file a suit after 3 years from father's demise (provided they came to be aware of the dispute 3 years prior to filing of case)

 

Please note that order 38 Rule 5  of CPC (attachment of properties before judgment ) is a rule of exception. It should be demonstrated to the court that legal heirs are disposing of the property to escape judgment. courts cannot as a matter of routine pass orders for attachment, please file an appeal against the order of attachment by the court and get the properties released.

hope this information is useful. 

Rajgopalan Sripathi
Advocate, Hyderabad
2115 Answers
394 Consultations

5.0 on 5.0

You can make application to court to permit you to sell one property to meet sister marriage expenses 

 

draw attention of court that other properties are sufficient to meet claim of creditors 

 

take the plea that claim is barred by limitation 

Ajay Sethi
Advocate, Mumbai
82096 Answers
5157 Consultations

5.0 on 5.0

Dear Sir,

 Now the principle of "Pious Obligation" is no more recognized. You are not liable to discharge your fathers debts.

Kishan Dutt Kalaskar
Advocate, Bangalore
5788 Answers
283 Consultations

4.8 on 5.0

1. On such type of cases order of attachment before decree is very rare and I wonder what is the merit of this case.  Anyway file a petition to  vacate the order of attachment. 

2. Highlight the fake documents to vacate the order of attachment. 

3. Highlight this part.

4. Raise this issue. 

Devajyoti Barman
Advocate, Kolkata
22341 Answers
343 Consultations

5.0 on 5.0

Please refer to Para 3 of your query: You may file objection stating that only a lesser extent of property needs to be attached to satisfy plaint claim. You may also produce fair value of lands and commercial building fixed by the state government. The court may consider such documents after duly applying its mind and come to a conclusion regarding the sufficiency of security. Based on such application of mind and materials on record, the court can determine whether a lesser extent of land is required to satisfy the plaint claim or not.

With respect to Para 4 of your query: As per the Limitatin Act, 1963, the period of limitation for the institution of civil suit to recover the possession of the immovable property is 12 years, and for the recovery of money is 3 years. However, condonation delay is possible where a meritorious case be heard by the court after providing a sufficient cause when the prescribed period has ended. 

 

Muraleedharan R
Advocate, Trivandrum
22 Answers

5.0 on 5.0

- Under the Hindu Law, a son is under a pious obligation to discharge his father's debts out of his ancestral property regardless of the possibility that he had not been profited by the debts.

- Further, if the debt is purely personal debt of the father, then it cannot be passed over to the legal heirs.

- Further, they cannot get order of attachment property of legal heirs for the debt of your father, because father and legal heirs assets will be treated as their respective separate properties.

- Moreover, if you got property of father both movable or immovable properties through inheritance then only, your liability to pay the debs, after selling those inherited property.

- The property which was gifted to your father will become his self acquired property and that can be attached for the recovery of the amount. 

- Further, if the valuation of the property is more than the claimed amount , then you can move an application before the said court for selling the same for sisters marriage. 

- Further , if the recovery suit was filed after 3 years from the date of loan or last date of payment of some amount , then this suit is not maintainable on the limitation ground. 

- Hence , if suit is filed after 3 years of your fathers death , then it is also not maintainable and liable to be dismissed . 

I have one case dismissed on this ground .

 

You can contact me , if further suggestion needed . 

Mohammed Shahzad
Advocate, Delhi
6719 Answers
71 Consultations

5.0 on 5.0

Properties of legal heirs are not liable for the debt of deceased  ancestor. Only to the extent of the share of deceased  ancestor can be attached. Attachment of property belonging to all legal heirs is not sustainable. The order of court is illegal and liable to be set aside.

Ravi Shinde
Advocate, Hyderabad
797 Answers
7 Consultations

5.0 on 5.0

Dear Querist

the properties belong to your father or not? if yes, then you may file an application before the court for submitting the third party assurance/security for the total amount and the court may allow you to sell the property for the marriage of your sister.

 

remaining points are a matter of trial and you should fight the same with the help of an advocate who deals in civil matters.

 

As per section 50 of CPC, all the legal heirs are responsible to pay the debt of the deceased person

Section 50 CPC Description

(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

 

 

 

Nadeem Qureshi
Advocate, New Delhi
5976 Answers
282 Consultations

4.9 on 5.0

Dear sir,

the court believes in evidence. here, you require to show that you want the property because you have a sister for whose marriage the property is required.

the court can not pass a verdict in one direction. since it was your property gifted by your grandfather and not of your father, you require a better lawyer who can contest your case backed with solid legal pointers

  • For more assistance, you can book a consultation with me.
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Anik Miu
Advocate, Bangalore
1125 Answers
10 Consultations

5.0 on 5.0

It will not be released unless the dispute is settled or till final decree.

Prashant Nayak
Advocate, Mumbai
23361 Answers
49 Consultations

4.4 on 5.0

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