• Partition suit, recovery or any other civil/criminal proceedings

Dear Sir,
Below is my query:
What are my legal options - Civil and/or Criminal?

TOPIC:

My father expired in 1987 and during life time purchased one house property in the name of my mother in the year 1978. The source of funds for purchase are unknown. My father expired leaving behind - Wife and four children as legal heirs (I am one child).

After death of my father, we have purchased one more property in 1992 in the name of mother again. Some funds contributed by maternal grandfather & maternal uncles and some funds from selling another property which was in the name of father.

Overall one property was purchased (1978) during my father's life time and another property after his death (1992) - both in my mother's name. Mother is uneducated & unemployed during her life time. 

In 2016, one of the child has issues with her husband and filed matrimonial petitions and police complaints under 498A & Bigamy. 

My family members have requested me to take care of civil & criminal proceedings. I have invested my time, money and efforts in filing and defending the cases since 2016. I have records. The cases were filed/contested in Australia as well as India. I have invested time, money and efforts out of trust. The monetary value will include around INR Fifty Lakhs. I have records as evidence. 

The property purchased in 1978 was subject to government acquisition to build double bed room houses in that area. The government has sent notice to acquire the property. Again family members requested to care care of legal proceedings. I defended the matter before MRO/RDO/Collector and even I obtained two Hon'ble High Court Stay orders and protected the property. Now the government has completed double bedroom houses and the value of the property is more than 1 Crore (previously it was slum area and was valued 10 Lakhs). I have invested time, money and efforts and solely responsible for protecting the property. I have records as evidence. 

The other property which has been purchased in 1992 values more than 1 Crore.

I have been taking care of Mother since 2000, as she was dependent on me (other siblings left to USA & Australia for living). Most of the Mother's expenses were from my pocket since 20 years. 
 
Now the intention of the family members, i.e., Mother and other three siblings have changed and they want to share the properties among themselves and they deny my legal rights/claims. Mother supports the other three siblings I have no other option except Civil or/and Criminal Proceedings. 

Out of worry, I suffered recent heart attack. I incurred financial loss and presently in debts, due to investments made for benefit of family members. Now they are not recognizing my time, money & efforts. I have no other assets. 

I fear they might do transfer of property including will, gift, sale, GPA or any other mode of transfer of property.

Request your kindness to provide me options both civil & criminal.
Asked 6 months ago in Property Law
Religion: Hindu

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25 Answers

1) file suit for partition for division of property by metes and bounds 

 

2) take the plea that property bought in mother name for benefit of joint family 

 

3) that mother is uneducated had no source of income for purchase of property 

 

4) seek injunction restraining sale of property by mother 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

No case of cheating is made out 

 

yiu spent money on your own accord .

 

yiur family members never gave in writing that it was a loan and that they would repay you 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

If the property is on yor mother's name, then she would be considered as an absolute owner of the entire properties.

As you say that you invested in the property purchase, on the basis of the records and evidences in your possession you may file a suit for declaration to declare the title to the property since it was funded by you for the purchase.

The expenses you incurred for litigation and other incidentals cannot be claimed or can seek reimbursement. 

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

There is no question of breach of trust neither any criminal proceedings are maintainable.

The amount whit you had spent for your home was a voluntary act from your side and in the absence of any contract or agreement with the other members of the family for such expenses, you may not be able to claim any money from others 

Hence there is no concept called breach of trust involved in this.

You cannot expect a reply or opinion which is against law nor which is not maintainable, if you are not able to understand the actual opinion then the loss is yours, the appeasing replies given by others may be nice to you now but it would be sheer misguidance when it is into practice.

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

You can only intitiate civil proceedings in the said matter. You can try to file criminal proceedings of cheating but it mostly not be maintainable as same emerges from a civil activity

Prashant Nayak
Advocate, Mumbai
26974 Answers
83 Consultations

4.4 on 5.0

Both the properties acquired in 1978 and 1992 are now ancestral. It not clear whether compensation of 1 cr is computed for property acquired by government. If that is the case you need file an application under Section 30 of Land Acquisition Act, 1894 before  Land Acquisition Officer seeking reference  to dispute to Court for distribution of award amount among legal heirs. So far as your apprehension regarding disposal of property by other legal hers is concerned you can prevent by filing a suit for partition  of properties and obtaining an injunction against transfer of property to third parties by other legal heirs. You can also issue a public notice  warning general public not to purchase the property the same being ancestral. You can also file an application for recovery of expenses incurred by in legal proceeding and family necessities before division of property.

Ravi Shinde
Advocate, Hyderabad
2477 Answers
41 Consultations

5.0 on 5.0

Criminal proceedings cannot be made out, it will waste of money and time. 

Ravi Shinde
Advocate, Hyderabad
2477 Answers
41 Consultations

5.0 on 5.0

Emails are admissible in evidence 

 

2) you can rely upon email to claim your expenses 

 

3) partition suit is maintainable 

 

4) no criminal case is maintainable 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

Yes partition is maintainable. 

Suit Recovery of monies us maintainable

Criminal proceedings not sure

Prashant Nayak
Advocate, Mumbai
26974 Answers
83 Consultations

4.4 on 5.0

1. both the properties stand in the name of your mother

2. she is still alive

3. she can do whatever she wishes with her property

4. you have got no locus whatsoever till the time your mother is alive

5. as of now you are only a presumptive legal heir who may or may not inherit the property of your mother since she is at full liberty to deal with her property in any manner she deems fit. it does not matter that these properties were actually purchased benami in her name. 

6. when your father's properties were sold after his demise, you did not object to it. in fact you were one of the parties who alongwith your siblings purchased another property in the name of your mother

7. just because you were maintaining your mother would not mean that you automatically get any right over her property when she is alive. maintaining the mother is the moral obligation of the son for which there can be no consideration or something in return which the son can legally expect from his mother

8. similarly if you defended the various legal matters that was out of your own Will and volition. nobody forced you to do that. if in the process you incurred expenses then that also was out of your own free Will. you cannot say that just because you incurred expenses you have a right or claim over the mother's properties. if you claim any such right then it is for you to prove that all the expenses that you spent for defending the legal proceedings was in return of some share in the property of your mother. you can very well file a declaratory suit for that

9. however no criminal offence is made either by your mother or your siblings. if you file any criminal complaint then that will backfire against you and you may become liable for initiating malicious prosecution and frivilous litigation and the court may also impose heavy costs on you

Yusuf Rampurawala
Advocate, Mumbai
6851 Answers
75 Consultations

5.0 on 5.0

if you have made up your mind then do what you think is correct

why then post questions here ?

care least about your ratings

1. What if I prove both the properties are purchased by selling ancestral properties and bought in the mother name for the benefit of joint family? - I have evidences

the properties cannot be called ancestral or HUF properties. They were the self acquired properties of your father purchased in the name of his wife

2. What if I prove that all the other family members have promised to reimburse all the expenses incurred by me? - I have evidences

so file a money recovery suit! how can you stake claim over the properties when your mother is living ?!

Further when the properties were sold & purchased, I was minor (aged 8 years) & I am not party to transactions.

under the law within 3 years of attaining majority did you file any suit to claim your share in these properties? law mandates the minor to file a suit within 3 years of attaining majority....you did not do that!

As you said, maintaining mother is moral obligation. I point out that as per HINDU LAW, if I have fulfilled moral obligation I have right in ancestral properties. There are Supreme Court Judgements on this issue. Do you agree?

you have NOT fulfilled any moral obligations. Moral obligations are without any consideration. Here you expect something from your mother from her properties in return for whatever you did for her!!! You call that fulfillment of moral obligation?!!! It would be interesting to know which Supreme Court judgment you find support from on this aspect!

Finally, initiating malicious and frivolous litigation will apply to them as well since they have wrongly filed civil and criminal cases against the family's son-in-law.
that is for the son-in-law to say...how are you concerned

the above are my honest views

if you do not like them please skip and take advice from any lawyer who says comforting things to you

all the best!

Yusuf Rampurawala
Advocate, Mumbai
6851 Answers
75 Consultations

5.0 on 5.0

You have share in property boughten mother name  out of sale proceeds of ancestral properties 

 

2) you can sue family members to recover expenses incurred by you 

 

 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

For all your three questions above, the answer is no partition or recovery suit or criminal action is maintainable.

You have clearly stated tht the properties were purchased on your mother's name, therefore she becomes an absolute owner of the properties that are lying on her name.

You have mentioned that you undertook expenses towards litigation on your sister's matrimonial cases both under civil law and criminal law.

Have anyone or your own sister told that you will be reimbursed the litigation expenses?

In the absence of any such agreement within the family circle, you cannot claim it as a right, even though you may have evidences for the expenses you had met.

In the absence of any right that accrued on you for a claim that you desire now unfortunately you may not be able to pursue any case whether civil or crimninal against anyone including your mother or your own sister. 

 

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

1. Any property that came through your mother side cannot be considered as ancestral property.

If you have proof top prove that the properties were bought after selling ancestral properties only then you can proceed.

2. If you have evidence in writing about the reimbursement arrangement then you can proceed with a suit for recovery.

Last piece of advise is that do not fall prey to any misguiding advise/opinion/suggestion.

Practical issue is different to that of the oral advises given by many to appease you or without knowing the underlying law.

 

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

1. The said properties stand in the name of your mother as of now.

 

2. Your mother, being the owner of those properties, have the legal rights to deal with those properties in any way she feels like, including selling the same, as per law, without being encumbered by the fact that you hd spend a fortune on her treatment, maintenance, court cases etc.etc.

 

3. For claiming any share on the said property, you shall have to establish that the property was purchased from the earnings of your father for which you shall have to file a declaratory suit to that effect.

 

4. Thereafter you shall have to file a partition suit claiming your shares on those two properties.

Krishna Kishore Ganguly
Advocate, Kolkata
26513 Answers
726 Consultations

5.0 on 5.0

1. The question of criminal act or breach of trust arises in the instant case.

 

2. It will be a Civil Case only.

Krishna Kishore Ganguly
Advocate, Kolkata
26513 Answers
726 Consultations

5.0 on 5.0

1. Who had sold your said ancestral properties? Your father? If yes, then you can claim that those properties are actually owned by your father since consideration were paid by him for which you shall have to file a declaratory suit as suggested in my earlier post.

 

2. If all the family members had promised to reimburse you the amounts you had incurred on account of your mother's treatment, maintenance and also the Court cases, you can file a Money Suit claiming reimbursement for the said amount, which will be decided by the Court. However, you can not claim share of your mother's properties for the assurances given by your relatives that they will reimburse the above amounts till the Court decides on the matter.

 

3. You can file the Money Suit now and also file an application under Order 39 Rule 1 & 2 praying for an injunction order restraining your mother and other relatives to deal with the said properties till the Suit is disposed of.

Krishna Kishore Ganguly
Advocate, Kolkata
26513 Answers
726 Consultations

5.0 on 5.0

Do as aforesaid. Good luck

Prashant Nayak
Advocate, Mumbai
26974 Answers
83 Consultations

4.4 on 5.0

You should execute specific power of attorney get it attested by Indian consulate . Mere notary would not be sufficient 

 

2) don’t execute GPA 

 

3) your personal presence is not necessary in each date in civil cases . Your lawyer would appear on your behalf 

 

4) you can issue public notice in local newspapers 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

1. Yes

2. Yes

3. It may

4. Injunction stay. 

Prashant Nayak
Advocate, Mumbai
26974 Answers
83 Consultations

4.4 on 5.0

1. If you are not able to appear in person befor the court, you can always delegate powers to a power agent to represent you before court during your absence.

2, No such  exemptions available except that you may have to sign the vakalatnama either in India or sign it in yor country of current residence and get it notarised or attested by an official of the Indian embassy and send it back to your advocate, he will manage your absence till such time it would be possible after which yo may have to be present or to be represented by an authorised representative.

3. Even a notary of that country can attest your signature 

4. In the suit you propose to file you may file another application seeking temporary injunction to restrain the opposite parties from alienating or further encumbering the property in any manner till the disposal of the main suit.

 

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

1. You shall have to  file a Money Suit  and also file an application under Order 39 Rule 1 & 2 praying for an injunction order restraining your mother and other relatives to deal with the said properties, including selling the same, till the Suit is disposed of. 

 

2. For filing the Suit, you shall have to execute a GPA by getting your signature before the appropriate officer of the local Indian Consulate and then the GPA holder can file the said Suit.

Krishna Kishore Ganguly
Advocate, Kolkata
26513 Answers
726 Consultations

5.0 on 5.0

1) for filing suit for partition SPA duly notarised is sufficient 

 

2) you should not mention limited period reason being suit take years to be disposed of 

 

3) you can mention that holder has no powers to compromise / with draw the legal proceedings 

Ajay Sethi
Advocate, Mumbai
87566 Answers
6125 Consultations

5.0 on 5.0

1. Yes

2. Yes

3. You can

You can file and then appoint someone to handle

Prashant Nayak
Advocate, Mumbai
26974 Answers
83 Consultations

4.4 on 5.0

1. You are right. 

2. You can mention that the SPA is given for a specific purpose only after which it becomes 8infructuous. 

3. You can do so 

T Kalaiselvan
Advocate, Vellore
77722 Answers
1506 Consultations

5.0 on 5.0

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