• Family property dispute

My Father had bought plot in association in Maharashtra 20 years ago. After his demise the papers were transferred to my mother. My mother had transferred shared certificates to my younger brother and he registered property on his name. We are three brothers , thus our share is not given. My mother regret her decision now. What can we do now ? Can we ask association to revert the decision ? Can we file a lawsuit of forgery, cheating ? Can we write to registrar to revert the decision ? Since this property was bought by our father. Do we all three brothers have legal right on it ? How can we get our share by legal ways ?
Asked 3 years ago in Property Law from United States
Religion: Hindu
1. Unless and until a relinquishment deed was executed by you in favour of your mother or younger brother your share in the property of your deceased father is enforceable through the process of law. You can file a lawsuit to cull out your share in the property.

2. A criminal prosecution for cheating and forgery can also be launched against your brother as he registered the property in his favour in spite of not being the owner.

3. The registrar has no authority of law to reverse his decision. Only a court of law can set aside his decision as illegal.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

1) how were papers transferred to mother ? 

2) did other legal heirs execute relinquishment deed in favour of mother ? 

3) how did your mother transfer flat in your brother name . Was it by gift deed? 

4) if your mother executed gift deed brother would be absolute owner of the flat 
   5) association won't revert the decision 

6) your mother has to move the court for necessary reliefs to set aside gift deed 

7) if no relinquishment deed was executed by you. Your mother could not have executed gift deed in favour of your brother  
Ajay Sethi
Advocate, Mumbai
45573 Answers
2677 Consultations

5.0 on 5.0

If after death of your father the property was transfer to your mother by a registered deed and and you have consent.Thereafter your mother transferred the said property to your brother by a registered deed then it can not be return back or revoke the said deed.
Minansu Bhadra
Advocate, Kolkata
384 Answers
28 Consultations

4.9 on 5.0

A. Have you executed any release deed or relinquishment deed  in favour your mother?

B. After the demise your father without a will that property must be inherited by class I legal heirs i.e, mother, wife, children. Mother only will get the right to alienate in case all the children or mother of the deceased released their rights in favour mother by registered the deed.

C. You can challenge the registered property and claim your respective right through filing partition suit before the Court.
B.T. Ravi
Advocate, Bangalore
833 Answers
56 Consultations

5.0 on 5.0

Hi, you have to file a suit for partition before the court simply transfer of share in the Society it does not amount  transfer of property so all the legal heirs including your mother has right over the property.
Pradeep Bharathipura
Advocate, Bangalore
4551 Answers
203 Consultations

4.5 on 5.0

If the property was your father's self acquired property, how was it transferred on your mother's name?
have all other legal heirs executed a registered release deed in your mother's favor due to which the property was transferred on her name?, if yes, then the property becomes absolute property of your mother.  It means she can transfer or settle of execute a registered gift deed in favor of anyone including your brother, this is very much valid and it cannot be revoked at fancy and whims at a later stage by the donor or executor.
However, if the transfer of property on your mother's name was made without observing the rules in this regard or any other formality as mentioned above, then the transfer on her name itself will be invalid and all the subsequent transactions on the property can be held invalid. That way all the legal heirs of your deceased father will be entitled to an equal share in the intestate  property.  If this is the situation,you may file a partition suit seeking your share and separate possession of the same.
T Kalaiselvan
Advocate, Vellore
35750 Answers
388 Consultations

5.0 on 5.0

1.Things are not very clear in your query,

2. You have stated "After his demise the papers were transferred to my mother. My mother had transferred shared certificates to my younger brother". What do you mean by stating 'papers were transferred?'.Did your father execute a will favouring your mother or gift deed favouring her? Was she the nominee of the plot? How the papers (i.e. title) of the plot was transferred in her name?

3. However, if the title of the plot was lawfully transferred in favour of your mother  who in turn has conveyed the title in favour of your brother who had registered the Deed in his name then you can not lay your clzim on it now,

4. However, if your mother has not acquired the property of your deceased father in a lawful way then she can not convey the title of the plot to your brother and in such cae you can challenge the said registration and file a partition suit of the property praying for an order directing the registrar to cancel the aid registration. 

Krishna Kishore Ganguly
Advocate, Kolkata
18510 Answers
448 Consultations

5.0 on 5.0

1) nominee is only a trustee for legal heirs 

2) your mother had only one third share in said plot on your father demise 

3)nominee cannot transfer plot without consent of other legal heirs 

4) you will have to file suit of partition to claim your one third share and to challenge transfer of plot in favour of your brother 

5) suit has to be filed where plot is situated 

6) summons will have to be sent to your brother and he will have to file detailed reply in the partition suit filed by you 

7) suit would take some years to be disposed of 

8) legal fees vary
Ajay Sethi
Advocate, Mumbai
45573 Answers
2677 Consultations

5.0 on 5.0

1. My mother is regretting her decision, What can be done now ?
She should not have transferred the share certificate on his name alone, being a nominee she has no right to do that. In fact the transfer without the consent of other legal heirs is invalid.

2. Can we and my mother sue Co-operative housing society and challenge registry ?
You cannot sue the society for transfer  because it was done in connivance of your mother, however you can file a suit for cancellation.

3. We live in Punjab and the plot is located in Maharashtra. Do we need to file a suit for partition in Maharastra or Punjab ?
The jurisdiction will be in Maharashtra.

4. Since the registry deed is on my brother name, Can he sell the plot now ? We can write a letter to association but can association stop him to sell the property ? Do association have any authority now ?
Since the property already stands registered on his name, he is very much eligible to sell the property, the society cannot stop him, only court has power to stop him from selling the property by an order of injunction.

5. My brother can be decisive, can he give power of attorney to his friend/lawyer to sell the plot or he is restricted to give power of attorney only to his blood relatives ( which is us ) ?
There is no restriction on this, a power of attorney can be given in anyone's favor. 

6. My brother lives in Singapore, can we send him summon and drag his physical appearance in local courts.
Suit summons are to be served on him whether he lives in India or elsewhere.

7. Do we need to hire lawyer at Maharashtra or Punjab ? The plot costs around 90 lakh now. How much is the lawyer fee to represent this case from start to end and how much time it will take ? What is the duration if we choose to fight the case ? OR is it worth fighting for with time and money we have ?
You can engage a lawyer of your convenience, the fee and other aspects will depend on the lawyer whom you desire to engage.

8. What if my brother sold this property already. Can We sue our brother for our share or third party ?
You have to file a suit for cancellation of the sale deed and also a declaration suit to declare the transfer of share and registration of property in his name as null and void in view of the fraudulent transaction as well as the legitimate shares of other legal heirs have been deprived by him. 
If he has already sold, then apply for cancellation of the sale deed. 
T Kalaiselvan
Advocate, Vellore
35750 Answers
388 Consultations

5.0 on 5.0

1) you will have to hire local lawyer 

2) hiring an outside lawyer will be an expensive proposition as you will have to pay his air fare his hotel bills plus legal fees 

3) you don't have to travel to Maharashtra on court dates 

4) no case of chaeating forgery is made out against brother 

5) if your brother does not appear In court inspire of service of summons you can apply for exparte decree 

6) it may take a year

7) you can when you file suit seek stay of your brother selling the property 

8)in Maharashtra we have ready reckoner  rates which reflect the market price at which stamp duty had to be paid on sake of property . So your brother selling property at less than 50 per cent market value are remote 

8) your brother can engage lawyer to defend case 

Ajay Sethi
Advocate, Mumbai
45573 Answers
2677 Consultations

5.0 on 5.0

1. As advised here, jurisdiction will be in Maharashtra not Punjab. Do we have to hire lawyer in Maharashtra to handle this case OR a lawyer from other state/city can be hired ? How would the court dates/ commute shall be billed and performed if we hire an outsider lawyer.
It is a mutual arrangement between the lawyer and his client. If a lawyer is brought from other place, it becomes the duty of the client to bear the conveyance expenses and other incidentals besides the sitting fees  towards the lawyer.

2. Do we  ( Me, my elder brother, my mother) have to travel to Maharashtra to attend court dates ?
This being a civil case, it will not become a necessary for them to attend the court on each and every hearing, they may make themselves present during the evidence deposition before the court.

3. Can we also file a cheating, fraud case in Punjab also OR only the case in Maharashtra can be filed ?
Since your mother transferred the shares on his name, where is the offences for cheating? No criminal complaint  is maintainable. It will become fatal to your civil case too if you proceed with a criminal complaint against him.

4. My brother is at Singapore, Can I force him to come to India via court Order ? 
He can comfortably defend  his case through his lawyer without making his presence before the court, his appearance is not necessary, if he chooses to stay away, the court cannot compel his presence. 

5. If my brother ignore the summon, After how many summons the judgement is given in our favor ?
If he refuses to receive  the summons or chooses to not appear before court or represent through his lawyer after receiving the summons, the court may set him exparte immediately on the next date of hearing itself and upon the plaintiffs deposing heir evidence for exparte decree, the court may pronounce judgement too on the next hearing.

6. If property is sold by my brother meanwhile we work on court injunction, I don't think we can fight with 3rd party. What options we have to Sue our brother ? 
If there is no injunction operative, then he may try to sell the property during pendency of the case, in that case the plaintiff may file a petition to imlead the subsequent buyer also as a party to the suit on the basis of the registered sale deed or transaction  encumbering the property. 

7. Our brother can claim that he received only 40 lakh ( Government rate) instead of 90lakh after sale of property. The sale papers may represent 40lakh instead of 90lakh. So, How can seek share of 90lakh than 40lakh ?
What is your concern about the sale consideration amount, are you interested in getting back your legitimate share in the property or worried about his wrong figures of sale consideration amount, basically you are opposing his acquisition of the property itself, therefore all subsequent activities with regard to the property are illegal as far as you are concerned then what is the concern about the sale consideration amount, this is not going to make any difference t o your claim.

8. Can my brother hire defense attorney and what strategies defense attorney can play to keep us out ?
What do you mean by this?, do you want to bribe the defence counsel to act in your favor, this is illegal, I cannot give any opinion to this nor can I suggest any step to this.
T Kalaiselvan
Advocate, Vellore
35750 Answers
388 Consultations

5.0 on 5.0

Defense Lawyer -  We wanted to know what strategies defense attorney can play to defend him. This is not related to bribe.
This cannot be predicted, he may have his own strategy, who knows what is there in the minds of others?

 The plot property papers are with my brother. We don't have any papers related to the plot. He claims he lost papers of the plot but we know he kept at his home.
  What kind of lawsuit we can file which compel him to turn in the property papers  or any information related to it?
- Can we issue a warrant to search his flat in Delhi ?
No search warrant will be issued.
You can get the certified copies of  the documents from the registrar's office.

 If my brother sells the property as registered deed to a third party , Can we along with third party sue my brother ?   Yes, you can implead the purchaser as a party to the suit. 

 He also stole gold from home too. Can we file cheating case in Punjab for the same ?
What is the evidence you possess to make this wild allegation against him? If you have clinching evidence, you may lodge a complaint with the local police

He lives in Singapore currently but can we file a summon to him at his permanent address in Delhi OR we have to send summon at Singapore ?
The purpose of sending summons is to inform him that a case has been filed against him, he needs to be present before the court either in person or through his authorised representative or a lawyer. Therefore to solve the purpose you can think about it judiciously. 

He took cash from my mother and returned it via check. Can he claim that he paid her plot share ? The amount is 10 lakh. There is no document saying the purpose of   money.
Why do you want to educate him such things, he may not be prudent enough to think about this in that angle. 

*What kind of case we can do in Punjab against my brother.** 
- How can we drag him in Punjab court ?
For both the above  questions  your advocate may be having a better answer

So, if my brother sold the property, it could be a cheating/criminal case right ? This has to be filed in Maharastra only or can be done in Punjab ?
Rightly understood.

My father was govt employee and I think he had some provident fund money which we used on his illness. Can he do any counter case on us claiming that money ? There is no document regarding that.
- My mother beneficiary of my dad pension which is around 20k per month. Can he seek share on it ?
No is the answer for both the above questions 
T Kalaiselvan
Advocate, Vellore
35750 Answers
388 Consultations

5.0 on 5.0

1) you can obtain certified copy of the sale deed from sub registrar office where sale deed is registered

2)you dont need any warrant to search his flat in delhi or file any law suit to obtain property papers 

3)you can file case against your mother and brother to claim your share in property 

4)if your brother stole gold from home file criminal case against him for theft at local police station where theft occurred 

5) summons have to be served to him at singapore 

6) your brother has to be served before court will pass orders in your case 

7) refusal to accept summons is good service

8)brother can claim he paid your money her share of property 

9)your brother has no share in mother self acquired property or maternal grand mother property 

10) mother can execute gift deed of her self acquired property in your favour 

11)to drag him to punjab court you have to file case of theft of valuables 

12)you have not mentioned whether your father died intestate or left a will 

13) if he died intestate your brother has share in father movable and immovable properties . 

14) brother has no share in pension received by mother from govt on her husband demise 

Ajay Sethi
Advocate, Mumbai
45573 Answers
2677 Consultations

5.0 on 5.0

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