A civil suit has to be filed in a district court by her or through a person holding a power of attorney on her behalf. A stay has to be taken so that the shareholders do not sell the property and a partition suit has to be filed.
Dispute land
Hi, My mother struck in Australia, who is Indian citizen. My mother came to know her brothers selling ancestral agriculture land in India without her consent. She want to file a dispute case on that land as she never received her share of land, she have 5 brother and 3 sisters, her sisters refusing to file a case , can my mother herself file a case as she struck in Australia bcoz of covid 19. Question : what are the ways to file a case on dispute land as she is not in India? Thank you for your time!
Asked 3 years ago in Property Law
Religion: Hindu
16 Answers
She can engage an advocate in India who on her behalf can file a suit for partition and injunction.
She should give a POA to her relative who can conduct the day to day hearing of the case on her behalf.
Your mother can execute POA in favour of family member for filing suit for partition on her behalf
POA should be attested before Indian consulate
seek injunction restraining sale of property by her siblings
Hello,
- Your mother can appoint a Power of Attorney in India, it could be you or any one who she can rely on. The PoA can file suit for partition in India without her being present in person.
- The suit for partition can be filed along with a Suit for Injunction, preventing the uncles or aunts from alienating or selling the property.
- The suit for injunction must in fact be filed immediately to prevent the sale. This would bring the uncles to come to a compromise and if they are not willing the partition suit can be taken forward.
For filing suit she need not come to India, she can file a suit and obtain stay against sale by brothers. Draft a GPA in favor of her friend/relative on 100 rupees bond paper or even on white paper giving him power to file suit on her behalf. Take that GPA to Indian Consulate/High Commissioner and get it attested by official there. The GPA has to be in specific format. Send it to the person named in India. He can do everything like appointment of Advocate, filing case, defending case etc. She has to issue lawyer’s notice to all legal heirs seeking partition and separate possession of property. After that file a suit in district Court for partition and separate possession. She will get her share. All this can be done through GPA.
She must approach the Civil Court having competent jurisdiction in the matter and file an injunction suit against his brother, retraining him from selling the property.
Hi Mathew, Thank you for your quick response, 1) My mother have issue finding a person in India for power of attorney , in that case what options we have to stop the sale of land? 2) If we find a person for POA what information should be on that letter. 3) If we file a suit , how many days it will take to send message to her brother or stop the sale. Thank you!
Asked 3 years ago
Hello,
- Your mother can get a legal notice issued to the uncles and aunts immediately by engaging a lawyer here in India. If they go ahead with the sale despite the Notice, you can always get the sale cancelled and the buyer and the seller will land in legal trouble.
- The PoA must authorize the person to appear in court, engage a lawyer and take all actions necessary to protect your mother's interests while she is away in Australia.
- This can be accomplished within a couple of weeks of filing the suit, especially when you are seeking an interim injunction.
She can execute specific POA in favour of her lawyer
2) specific POA should be for filing suit , engaging attorneys , filing affidavits , written statement etc
3) you need to obtain stay order restraining sale of land by her siblings
Your mother can execute specific POA in favour of her lawyer for taking legal proceedings
in suit for partition seek injunction restraining sale of land
Dear Sir / Ma'am,
1. Your mother can execute a PoA in India and the person can be anybody who can be relied on.
2. The PoA can file the suit for partition and your mother's presence is not required.
3. This PoA should be attested before the consulate preferably.
4. POA are of two types General and special. The executor/Principal of a General Power of Attorney authorizes the Power of Attorney holder to perform any nature of activity in the context of his immovable and movable property in his name and on his behalf. In a Special Power of Attorney, the Principal authorizes someone to perform limited activities on his/her behalf or confers limited rights.
4. Apart from this a suit for injunction can be filed to ensure restraint and avoid encumbrances in the possession of the property and as soon as possible avoid the sale of the property.
Thank You
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1. Let your mother bring an injunction from the jurisdictional Court to stop selling of the property by her siblings, without your mother's consent.
2. Let your mother send a legal notice to her siblings to claim for share in the property.
3. Your mother can give POA to one of her friends or relatives or to an Advocate by signing the Vakalath.
4. Your mother can obtain the services of an Advocate for preparing the POA.
5. Your mother, through POA holder, can file a suit for Partition declaration and separate possession of the property by metes and bounds.
U R Welcome.
Dear Sir
On the first day of filing of partition suit through POA may result into passing of ex parte orders restraining her brothers from selling or otherwise alienating the property. Such orders can be served on her brothers and office of sub registrar within 24 to 48 hours.
Your mother can first issue a legal notice demanding her rightful share in the ancestral properties with separate possession and this notice is to be issued to all the shareholders through a lawyer .
You can engage the lawyer of your choice in India and have this notice served on all the shareholders including her own sisters.
After that she can file a suit for partition before the jurisdictional civil court of law praying for division of properties equally with metes and bounds and good and bad soil and to allot one such equal share to her with separate possession.
She can execute a power of attorney deed in favor of any close relative back in India to represent her in the court for this case during her absence.
The power of attorney agent in turn will engage the services of an advocate and institute and prosecute the partition suit on her behalf.
She can make herself comfortable to appear before court at the time of deposing her evidence as prosecution witness.
1. The only option before her to stop the alienation/sale of the property would be obtaining an order of injunction against her brothers restraining them from alienating or encumbering the property in any manner till the disposal of the main suit for partition.
But she has to look for someone to represent her case as her representative through a power of attorney deed in case she is not able to come to India for this purpose.
2. It is a deed as per the format, your lawyer will explain how a power of attorney deed would be drafted and how to get it attested from a notary of that country or by an official of Indian high commission of the country of her current residence.
3. If the suit is taken on file of the court after completing all the formalities, the court may send the summons to her brothers immediately and they should receive the summons within 10 days.
1. Your mother has to file a suit for permanent injunction to stop her brothers from selling the land. She does not have to come to India to file the case. She just has to sign the suit papers and post to her lawyer in India who can then file the suit.
2. Alternatively, she may also execute a GPA in favour of a blood relative in India to authorise him to file the suit for and on her behalf. The GPA will have to be attested.
3. Ad interim temporary injunction can be granted against defendants on the first date of hearing.
Without a power of attorney you may engage a lawyer who will represent your mother as a party to the proceedings. A stay application has to be filed. For that you need someone who can sign on her behalf.
- As per law, an ancestral land cannot be sold without the consent of all legal heirs , hence the said sale by her brother is invalid.
- Further , any of the legal heirs can claim his right after filing a suit before the court
- If your mother is unable to move India for the same, then she can execute a POA in favour of any relative or nearest person to appear and approach the court on her behalf.
- She can issue a legal notice to all the legal heirs and thereby ask for her share in the property.
- If refused , then only she can file a suit for Partition and Permanent Injunction before the court.
1. She should approach a local lawyer for the same where this property is based.
2. She will have to give that person the power of appointing lawyer , file the case and reply etc in the court
- Lawyer to whom you engage , will help you in this regard.
3. Injunction will be allowed on the first date of hearing when her brother will appear before the court for filing his reply
- Further, if he has already sold any part of the property , that will also declared null and void .
