• How could I claim rights on the property?

My Grand Mother Bought a property X long time back and she executed a will in 1976 stating that Property X is a life interest property that his son(i.e My Father) could Enjoy only rents until he lives and then after it would belong to his Son(i.e Me) after my father where I have every right to enjoy\sell the property.  My Grand Mother Passed away due to diabetes in 1978.(The Will She wrote is registered). 

In the year 1980 My Grand Father placed this property documents in the bank to avail some business loan  for a partner ship firm (Where my Grand father and his two sons are partners) and my dad age is about 17 years then.  Later the partner ship firm in 1985 could not honor the amount and became a NPA. 

In the year 2014 September Corporation bank issued a notice that they are going to auction all the properties to get the money back in which Property X is mentioned as my fathers property and some buyer actual bought this property for a decent amount.  Till 2014 sep my father has been enjoying rents on the property. 

Until the corporation bank had issued notice I was not sure that this property is with bank and they are claiming the property X as my father. 

My Concern here 
Can i fight legally to claim my property right? As this property neither belong to my father nor my grand father and purely my grand mother!!!

If so what is the right approach to fix the problem? Can i claim that my father and bank have cheated me and misused my property to get back?

What are odds that i could win this case? 

Is it time taking process?
Asked 1 year ago in Property Law from United States
Religion: Hindu
1) litigation is time consuming 

2) your grand father  could not mortgage property to bank as he had no interests on the property . 

3) your father had only life interest in the property . 

4) file declaratory suit that you are absolute owner of property and obtain injunction restraining bank from auctioning the property . 

5) you must reply to legal notice and enclose the will of yopur grand mother . 

6) contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
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1. The mortgage created by your grandfather after the demise of your grandmother is illegal in as much as he had no right in the property which he had mortgaged. The bank also did not carry out due diligence it seems.

2. You have to challenge the mortgage deed executed by your grandfather in favour of the bank as it was without the sanction of law. On the basis of the challenge laid to the mortgage deed you also have to challenge the subsequent auction made by the bank. Since third party rights have been created by the bank they have to be impeached. 

3. Act swiftly as the delay in challenging third party rights strengthens the rights so created. 
Ashish Davessar
Advocate, Jaipur
18054 Answers
445 Consultations
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1. The buyer would also have to be named as third party rights have been created in his favour. If you impute fraud to your father you will have to prove it in the court. Without evidence of commission of fraud the court will not declare your father guilty. 

2. You do not have to appear in the court except during your testimony. For the filing of the case and all other subsequent hearings the presence of lawyer alone in the court should suffice. So engage a lawyer without any further delay.
Ashish Davessar
Advocate, Jaipur
18054 Answers
445 Consultations
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1) you ought to have taken legal proceedings for stay of the auction proceedings

2) what were you doing for period of one year ? 

3) when did you come to know of the grandmother will?

4) you ought to have  filed suit within 3 years of attaining majority challenging mortgage made by your grandfather firm 

5) delay in moving court  has to be explained 

6) contact a local lawyer . You need not remain present in court on each date 
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
5.0 on 5.0
My Concern here 
Can i fight legally to claim my property right? As this property neither belong to my father nor my grand father and purely my grand mother!!!
This property belonged to your grandmother hence she has rightly bequeathed the same to the beneficiaries as recited in the Will.  The will being a registered will, cannot be disputed about its validity.  When the Will came into force, your father was a minor and naturally the property was under the care of his natural guardian by an arrangement within the family, but in no way  authorised your grandfather to mortgage the property belonging to the minor son (whether for the purpose of business r anything), so basically assigning the property to bank for loan purpose on mortgage was illegal and invalid in the eyes of law.
Further your father has only life interest in the property to receive the revenue from it and not authorised to mortgage the property for loan purpose, therefore in any manner it is illegal and no binding on the end beneficiary, i.e., you.



If so what is the right approach to fix the problem? Can i claim that my father and bank have cheated me and misused my property to get back?

The question is not about cheating you but you have to reclaim the property on the basis of your entitlement made as bequest in the registered will and can obtain an injunction also on the same lines. 



What are odds that i could win this case? 
You have merits in your side, if fought well, you can easily win the case. 


Is it time taking process?
Yes.
T Kalaiselvan
Advocate, Vellore
13906 Answers
127 Consultations
5.0 on 5.0
Thanks for the advice Sir.  This property has been auctioned by the bank in sep 2014 and buyer who bought this property has been enjoying the rights. Now that this property is in his possession. should I have to involve the buyer in the declaratory Suit? 
Yes, if you are aware of the subsequent purchaser details, you have to implead him as a party.



I understand my grand father cannot mortgage property to the bank. Which he did and he is no more now and When I questioned my father about this he claims that he was minor in 1980 and has no idea on legality.  Can I claim that my father has perform fraud in the current context? 
Ignorant of law was your grandfather who is not alive to explain the show cause notice or the legal case before the court.  Your father was a minor that time hence the mortgage itself was invalid, the bank only has to give explanation that how it accepted the property lying on minor's name.  Whether the legal department of the bank has not verified or traced the title properly/  The bank can be held liable for the lapse.



Also I am located abroad can I hire a lawyer fighting the case on behalf of me or should I have to physically present for all the court hearings? Also what % is the case in my favor?
No doubt you have to engage a lawyer to fight out your case, at the same time if your cannot travel to India for the purpose of this litigation, you may authorise any representative in India by executing a special power of attorney deed in his favor for this purpose alone who can be available for the regular court proceedings and can represent you during your absence.  You have bright chances o win and take back the property but remember that you can acquire proper title only after the first beneficiary's life time.
T Kalaiselvan
Advocate, Vellore
13906 Answers
127 Consultations
5.0 on 5.0
1) you can file appeal along with condonation of delay application before DRAT against order passed BY DRT for auction of property chances of success are bleak as you failed to file an appeal against order passed BY DRT in 2013 

2) further even after sale proclamation was issued in Sept 2014 no steps were taken by you to challenge said order 

3) you could easily have given POA to  your father for filing case on your behalf . 
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
5.0 on 5.0
The HC relegated you back to the statutory remedy of filing an appeal which has not been filed. You could not have approached the HC directly without first having availed your legal remedy before the DRT. Now the option is to file an appeal by seeking condonation of delay in filing it. Get all the case related documents including the order passed by the HC and the pleadings before it vetted by a lawyer to chart out your further recourse,
Ashish Davessar
Advocate, Jaipur
18054 Answers
445 Consultations
5.0 on 5.0
What options i have right now? Can i file any reverse counter part to save my property if so where should i do and how should i follow up this matter?
Basically this property was bequeathed by your grandmother in your favor and upon her death this property devolves on you by operation of the registered Will.
However your father hurriedly done a mess after mess by filing a claim petition and not following it properly and got it dismissed as well as getting the writ petition also dismissed without properly filing the writ petition.
The option before you is that the documentary proofs to prove that you were not in the country during the period the said petitions were filed, they were done by your father by forging your signatures, hence it is not binding on you and also since you came to the knowledge of this very recently, you may seek the court's permission to condone the delay in referring appeal.



What are the chances that  my case would succeed?
Dont approach the issue with negative thoughts, put your best efforts and correctly this time



Can i say that I was not in India when Recover officer\Presiding officer served notices and i have my passport and visa a evidence to show?
Yes, this is how you have to create a defence to your approach to this case including a petition to condone delay in preferring an appeal. 
T Kalaiselvan
Advocate, Vellore
13906 Answers
127 Consultations
5.0 on 5.0
Hi,  You have to file a suit for deceleration and possession against the bank and also subsequent buyer that  you are the absolute owner of the property by virtue of the will executed by your grandmother and also seek cancellation of the sale deed executed by the Bank infavour of Subsequent buyer.

2. As the matter involved is little bit complicated you have to fight before the court you will get the justice.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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1) you are wasting your time and money in litigation 

2) the issue would be that your claim petition dismissed in 2013 By DRTand no appeal filed by you before DRAT within 45 days .

3) your petition before HC has been dismissed in June 2014 and auction concluded in september 2014and you did not take any legal proceedings for 18 months for setting aside auction of property 

4) as far as your grand mother will is concerned it is necessary to peruse the will to advise. 

5)Transfer to unborn persons is invalid. 
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator.

6) In Sopher v. Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an unborn person and the Court held that since the vested interest was transferred when the grandsons were born and only the enjoyment of possession was postponed till they achieved the age of twenty one the transfer was held to be valid. 
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
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Your grandmother was cognizant at the time of execution of will that you were not born. It can thus be concluded that she intended to confer absolute rights on her grandson who would be born subsequent to the execution of the will. It is not a HUF property. 
Ashish Davessar
Advocate, Jaipur
18054 Answers
445 Consultations
5.0 on 5.0
If the Will contains the bequest what you have state then it can very well be acted upon.  this property is not HUF property that you uncle is quoting some irrelevant sections and rules which are not applicable to this subject.
You can challenge his objections in the court of law.
T Kalaiselvan
Advocate, Vellore
13906 Answers
127 Consultations
5.0 on 5.0

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