• Declaration and injunction suit

Dear Sir,
My father has filed 2 special civil suites of Declaration and Injunction against me in Thane court S.D.

Cases are as under:

Case-1

I am an NRI and Decided to purchase the Flat in year 2007 worth value Rs. 34,00,000/- in Thane.

Despite of refusing to take any help from my father, he went to builder's office and made payment of Rs. 7,00,000/- through his account towards this flat and asked builder to put joint name (my name and his name) on the payment receipts. 
I was not aware of this as i was staying abroad. So later i was left with no other choice but to pay the remaining amount of approx. Rs. 27,00,000/- from my NRI account to builder.

Later i understood that my father tried to meet builder and asked him to do registration of entire flat on his name as he was my POA holder. I was shocked by this and immedietly came from Dubai and did the registration of said flat entirely on my name. 

Agitated by my this move as i understood his intention, he made my mental harassment by police and other ways for last 6 years and now he has filed the declaration and injunction suit against me claiming 20% share in said flat and demanded 20% amount of the market value of flat and have asked for separate possession of the flat and also asked court for releasing injunction order for creating third party interest. I stay in Dubai so he now has dragged me into this mess for financial gains.

Due to my self respect, Out of his Rs. 7,00,000/- i have already repaid him Rs. 2,00,000/- by Cheque, Rs. 3,00,000/- by Cheque to mother upon his verbal instructions and balance amount was withdrawn by him through my ATM card when i was in Dubai as i gave my card to him with trust.

Now i wish to ask, Whether still i am liable to pay him? If yes, how much and Why? is he liable to get 20% share as per market value? is he liable to get possesion of my flat? whether money withdrawn by him by using my ATM card can be proven in court? and Court can issue injunction order in this matter in his favour? whether money given to mother by cheque can be proven as my money returned to father?

Case-2

In year 2001, My father put some cash amount in bank accounts of my mother and myself respectively to enable us to buy a 1 bhk flat in thane. this cash was deposited in our account by my father was black money earned by him and he wanted to divert it it was approx. 4 Lacs each. During that period, i was doing job and having income of Rs. 10k pm.
My mother was housewife and no source of income.
Flat was bought on joint name of myself and my mother and payment was made by cheques to builder through my account and my mothers account respectively. 
Now he/father has filed a declaration and injunction suit against me and prayed to court for Removing my name from property as he deposited cash in my account and it  was more than my income for that year so according to him i am not liable to be in property. Whether court will order to remove my name from this property? My mother is also Co-plentiff along with my father in this case.

Regards
Asked 1 year ago in Civil Law from Thane, Maharashtra
Now i wish to ask, Whether still i am liable to pay him? If yes, how much and Why? is he liable to get 20% share as per market value? is he liable to get possesion of my flat? whether money withdrawn by him by using my ATM card can be proven in court? and Court can issue injunction order in this matter in his favour? whether money given to mother by cheque can be proven as my money returned to father?
Since you have made it clear that you ave repaid his entire amount you cannot be held liable to pay him any amount.  However the burden to prove it lies on you.  The cheque amount paid though your mother may not be taken into consideration.  Since he has filed a suit against you, it becomes your duty to defend yourself and challenge his allegations. 





Case-2
The property was purchased in the joint names of yourself and your mother. Thus it becomes your joint property.  Your father might have deposited the amount to your account but it is not necessary that this amount was utilised for purchase of property and even if it is,  your father has no right to claim a share in the property and he cannot ask you to vacate the property in any capacity. 



T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1. The injunction is issued to prevent the breach of a right. One who seeks injunction against the creation of third party rights has to prove that he has a share, fixed or fluctuating, in the property, which may be disposed if injunction is denied.

2. Here is a case where your father volunteered to pay x Percentage of the consideration of the property, but the title deed is in your favour. The title to a property flows from the title deed thereof regardless of whether the consideration has been paid by the owner or someone else at his instance. As a corollary thereto, you are the owner of the property in question.

3. You should engage a lawyer to fittingly contest his lawsuit lest he walks away with a favourable order from the court.

4. The legal position mentioned above would apply verbatim to case 2. What the court will eventually order cannot be foretold by anyone. You should enter defence in both the cases to contest the claim of your father.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) flat cost was Rs 34lakhs . your father paid Rs 7 lakhs and balance was paid by you 

2) your father has 20%^share in said flat 

3) in your reply you should take the defense that you have already repaid Rs 7 lakhs 

4) payment made to mother would not be regarded as repayment made to father 


5)it would be difficult to prove that Rs 2 lakhs was with drawn from ATM card by your father 

6) injunction can be granted by court against sale of flat by you 
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
1) in second case has your father declared in his income tax retrun that Rs 4 lakhs was given as loan to you 

2) you can deny that Rs 4 lakhs was given by your father 

3) you can state you had deposited part of your savings in bank for purchase of flat as your cinome was Rs 10 lakhs per annum 

4) better reach an out of court settlement with your father 

5) it is not advisable to wash dirty linen in public
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
Case -1:

1.It was your mistake not to pay the promoter the full amount and directing him to refund the amount paid by your father,

2. Alternatively, you should have directly refunded the said amount to your father,

3. You are liable to pay him the amount which you have not paid him till date as per records. payments o your mother will not be considered as payment made to him and cash withdrawal through your ATM card will not be accepted by him,

4. He is liable go get the money back with appropriate interest or share of the market rate of the property as decided by the Court. Possession of he property also will be decided by the Court but it is unlikely that he will get a favourable order since the flat has been registered in your name for making the majority of payment,

5. Court can pas any order as prayed by your father if it is convinced about the plea of your father,

6. You are required to engage a local lawyer to defend you in the said case filed by your father against you.

Case-2:

1. He has to specify as to who will replace you as the co-owner, if your name is replaced,

2. Benami transaction has been prohibited after enactment of Benami Transaction (Prohibition) ct, 1988. So, your father can not claim that he had purchased it in your name along with your mother,

3. Rest assured, he won.t be able to do much in this matter,

4. Engage a local lawyer to contest the case fittingly to defend yourself.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0

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