• Recovery of debt

My elder brother two sons took loan from me for agricultural land development and my brother given surety for that amount. Later my brother sons not returned money and so went into court and in the court my brother agreed that “he need to pay money for my sister and all such things recoded in the court”. 
But my brother also stated that he do not have any money to pay for me since he do not have any income and as such, he requested the court to attach his properties but at present in none of the properties he is possession including house or in agricultural land. 
My brother properties consists of ancestors properties of his share received through registered partition from my father and also one of the property which he received from his wife family through “pavati khata” but not changed into his name through any of the recognized mode of transfer like partition deed or sale deed or gift deed. 
However, the two sons comes to know that his father has given such above statement in the court to attach properties of their family and as such, they filed partition suit against their father with wrongful allegations (my elder brother) and included all the properties of their family in which we were in process to get attachment from the court to recover our money. 
The main reason behind filing partition suit by my brother two sons is to trouble and delay our money recovery case and not to give money for me. 
Now our case is in execution stage to arrest my brother for recovery of money but since he is my own elder brother I do not want him to send for jail but I am struck with recovery process of our money even though he is ready to give money but his two sons are not allowing for the same through filing unwanted partition suit. 

Questions 
1.	Even though if the partition suit is pending for partition among my brothers family, can I attach any one of the property of agricultural land of my brother which he received through partition deed from my father for our money recovery case. 
2.	Whether such property attachment can be restricted by those two sons of my brother through producing their suit for partition in our court of law in execution case by claiming that it’s an ancestor’s property and should not be attached till disposal of the partition suit. 
3.	Or else can we directly get sale deed/lease agreement for the consideration amount of our case from my brother through court itself with the permission of the court after following due process of law. 
4.	Please suggest what is the best way to recover our money or get any worth of the property from my brother for my due amount?
Asked 2 years ago in Civil Law

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11 Answers

1. If there's no stay order by the court conducting partition suit,  you may go ahead with the execution petition as per provisions of law. 

2. See the above answer. 

3. Yes 

4. You may pursue the Execution petition properly. 

T Kalaiselvan
Advocate, Vellore
84724 Answers
2172 Consultations

5.0 on 5.0

1.If it's not subjudice then yes you can

2.Yes they can oppose the same

3. Yes

4. The aforesaid way is good

 

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

1) court can order attachment of agricultural property 

 

2) sons can oppose attachment on grounds it is ancestral property 

 

3) if partition suit is pending court would not order sale of property 

 

4) your brother share in ancestral property can be attached 

Ajay Sethi
Advocate, Mumbai
94523 Answers
7486 Consultations

5.0 on 5.0

Dear Client,

As per the facts which have been provided, yes such property attachment can be restricted by those two sons of my brother if it is an ancestral property. Yes, you can directly get sale deed/lease agreement for the consideration amount of your case from your brother through court itself with the permission of the court after following due process of law.

Thank You.

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

1) make application for attachment of one third share in property 

 

2) second property is not ancestral property and can be attached by court 

 

3) sons will not get share in property 

Ajay Sethi
Advocate, Mumbai
94523 Answers
7486 Consultations

5.0 on 5.0

1. If anyone is making a claim before court, then it becomes the duty of the claimant to provide the details of the claim including the details of the properties proposed to be attached, how you procure the details is your problem, you may have to arrange to get the details through your own source otherwise the court will not entertain your claim. 2. Without mentioning the schedule of property and proof of absolute  title to the defendant the court will not entertain petition seeking attachment of proeprty before judgment.

3. It depends on how it is proved by the plaintiff before the court, the court will not go into the details on the basis of vague information, it will simply reject your claim until the plaintiff provides substantial proof of the defendant's title to the property.

 

T Kalaiselvan
Advocate, Vellore
84724 Answers
2172 Consultations

5.0 on 5.0

1. yes , you can move an application for the attachment of his property 

2. Yes, if no partition taken place then they can oppose 

3. If the  partition suit is for the same ancestral property , then without passing decree , court cannot order for selling his share in the property . 

4. Court may order for attachment his other property /assets if any ,otherwise he will go behind the bar.  

Mohammed Shahzad
Advocate, Delhi
13105 Answers
195 Consultations

5.0 on 5.0

The aforesaid answers is proper and suitable for you. 

If the 2 sons are legal aid then they will have share

Yes it will be criminal case

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

Dear Sir,

My answers are as follows:

 

1. Even though if the partition suit is pending for partition among my brothers family, can I attach any one of the property of agricultural land of my brother which he received through partition deed from my father for our money recovery case.

Ans: Yes, first it goes to your brother and since no partition took place as such it can be attached but Civil Courts are very slow in taking such steps unless judge is pro-active.

 

2. Whether such property attachment can be restricted by those two sons of my brother through producing their suit for partition in our court of law in execution case by claiming that it’s an ancestor’s property and should not be attached till disposal of the partition suit.

Ans: Since shares of two sons not determined as such now it is in the hands of your elder brother as such it can be easily attached.

 

3. Or else can we directly get sale deed/lease agreement for the consideration amount of our case from my brother through court itself with the permission of the court after following due process of law.

Ans: Without attachment you cannot get such deeds because the shares of children of your elder brother also involved however he can sell his undivided share in the said whole property.

 

4. Please suggest what is the best way to recover our money or get any worth of the property from my brother for my due amount?

Ans: First get the property attached and put to public action as loan was taken for discharge of family liabilities as such shares of children also liable to discharge such debts.

 

5. Now as per the law of partition my brother will also get his share of 1/3rd from ancestors property along with his 2 sons but before partition we can not get to know which sy no property will be allocated to his name through court in partition case & as such, how to approach the court for attachment of property of ancestors ?

Ans: It is very difficult to determined the share of your brother as such better option is attaching all the properties.  

 

6. Can we get just at least attachment of property till partition suit gets settle

Ans: Yes, definitely.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

1. yes can be attached in absence of any stay order passed in partition suit

2. yes they can very well obstruct the execution proceedings

3. looks difficult

4. your brother's share in the ancestral property can always be attached though. the 2 sons are not the exclusive owners. they are co-owners with their father. at the highest the 2 sons share in the ancestral property may not be attached 

 

follow up

1. the judgment holder will be entitled to 1/3rd undivided share. partition is not necessary then

2. in my view it would be a trust property since your brother was appointed as a trustee by his wife's sister

3. no

4. may be. file a complaint for abetment of suicide 

Yusuf Rampurawala
Advocate, Mumbai
7485 Answers
79 Consultations

5.0 on 5.0

Dear Client,

As per the facts which have been provided, you can directly get sale deed/lease agreement for the consideration amount of our case from my brother through court itself with the permission of the court after following due process of law.

Thank You.

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

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