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My grandgrandfather had a self aquired property which he named it to his 5 sons.my garndfather was one of the son amongst dese 5 sons according to my grandgrandfather' will the property can not b sold to any stranger witout mutual consent of 5 brothers and if any brother wants to sell his property he can olny sell it to remaining brothers not to ny stranger. my grandfather also died and he transffered his all rights to my grandmother. my grandfather has three sons out of which my father is one of them.
now 11 years before out of those 5 sons 1 of them sold his share to my mother. now remaining 3 brothers are challenging d will dat dis sales deed is null and void and my mother is not the remaining brothers. I want to know wether sale deed in my mothers name is valid or not and if not den what can be the consequences in case sale deed is null and void. and one more thing we also issued public notice in newspaper 11 years back we have orignal copy of dat.
Asked 1 year ago in Property Law from New Delhi, Delhi
Religion: Hindu
1. The sale to your mother, in the absence of a clause to the contrary, is illegal as it violates the condition laid down in the will. 

2. If the sale deed is declared as illegal by the court then your mother will lose the property which she has purchased. If she has already been put in possession of the sold property then she can be evicted through a lawsuit for eviction.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1) as per the will property could be only sold to the brothers . 

2) if sale has been made in contravention of conditions raised in will sale can be set aside by court 

3) in case sale is set aside your mother can seek refund of money paid to  the seller . 

4) the issue would be what were they doing for 11 years . is the delay in moving court for 11 years explained byu the brothers . 

5) the fact that once public notice was issued brothers should have objected to the sale
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
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The case filed by one your cousin grandfathers is just vexatious without any rhyme or reason.  The Will deed states that the property cannot be sold to a stranger meaning thereby an  outsider, your mother is one of the family members belonging to the same family descent hence cannot  be called as a stranger and the said sale cannot be challenged.  Moreover, the said Will cannot be enforced legally to the full extent till the end owing the changing circumstances everywhere hence there is no legal binding on the Will on the aspect of the condition imposed therein.
The suit prima facie lacks maintainability and not tenable in law. After discussing at length with your lawyer, you may file an application under order 7 rule 11 for rejection of plaint on the same grounds. 
T Kalaiselvan
Advocate, Vellore
14136 Answers
127 Consultations
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For all your subsequent questions my previous post has an answer either directly or indirectly.  However, shall clarify that    Your mother is not a stranger to the family hence the condition imposed in  the will for alienation shall not be applicable for this transaction and  it can be very well argued that your mother being the wife of your father who is a descendants of the family,  she is not the stranger hence the property was sold to one of the family members only and it is proper and within the ambit of the condition imposed in the so called Will. .  

Further why do you say that  the court will  reverse the sale transaction?, the court has no business to entertain any relief that has not been  sought by any of the parties to the suit. 

Fight and challenge the case on merits in your side.
T Kalaiselvan
Advocate, Vellore
14136 Answers
127 Consultations
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1) if plaintiff was aware about sale deed has he explained delay of 11 years in moving court 

2) if sale deed is set aside brother who sold share would be the owner of the one fifth share and will have to compensate your mother by refunding sake consideration received by him . Your mother will have to sue the brother who sold his share for recovery of amount paid by her with interest 

3) consent of all bothers was not obtained and property sold  by one brother in contravention of conditional laid down in Will . Hence court may set aside sale 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
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Hi, as per the terms of the will the property has to sold among the brother itself so your mother has no right to purchase the property so the sale deed becomes null and void and your mother has reserve the right to ask for refund of the amount.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
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1. Merely being aware does not suffice. They had to consent and their consent had to be reduced to writing.

2. What the court will do I cannot prejudge. Your mother is entitled to defend the case in the court. Let her engage a lawyer who may be able to repel the claim.

3. Your mother will have to file a separate lawsuit to get back her money. The court will not give her an option to 'retransfer' the property. This is not how the courts function.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0

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