Son's ownership on mother's self earned property
Me and my mum bought an apartment in Chennai back in 2003 under our names. I have a elder brother who didn't want to contribute so decided to not be part of the property back then. We are in the process of selling the property and now my brother has filed a suit at munsif court against me and my mum asking for the injunction and not to alienate him against the property.
Does he have any legal claim on the property ? It's not an ancestral property, it's registered under my and my mums name.
Asked 2 years ago in Property Law from Australia
Your brother's case is absolutely vexatious. It is not maintainable in law or in facts.
He has no right in the property.
He will not succeed in the case.
Let him get disappointment if he still gets misguided on the words of some fanatics.
Thanks for the prompt response Sir. I'm currently based overseas and the court has ordered me and my mum to appear at the munsif court on the 21st of March. Will there be anything against us if we don't make it on that day. My mum would be able to be there but unfortunately I won't be able to attend. Any advice would be greatly appreciated !!
Asked 2 years ago
1) your brother has no share in property
2) it is self acquired property of yours and your mother
3) no stay would be granted by court
1) you can appoint an advocate to appear on your behalf
2) engage a local lawyer and he can forward vaklatnama for your signature
1. He does not have any share in the property as it is registered in your and your mother's favour. Unless he can prove that he also contributed partly to the sale consideration of the property he cannot expect to get a favourable order. Be that as it may, you have to contest his case on merits.
2. When the court orders the parties to appear it implies that they are at liberty to engage a lawyer who can appear on their behalf. So you are not required to appear personally in the court.
First the properties are in the name of your mother and yourself. So they are your absolute properties. your brother has no right on them. He will lose the case.
You and your mother need to file a vakalat to your lawyer.. Also you and / or your mother need to sign the written statement, counter affidavit which can be done at the convenience of your home . A good lawyer will send you the draft by mail and once you approve, will prepare the written statement and counter affidavit and the obtain your / mother's signature.
You or your mother will not be required to attend the courts on a regular basis.
However you and your mother will need to come once or twice at the time of evidence stage( your lawyer can tell you on the dates you are required to attend the court atleast 30-45 days in advance.
hope this helps.
as stated by you the property is the self acquired property of you and your mother. Now if both of you being the joint owners have decided to sell the property then your elder brother cannot object because he has no manner of right, title or interest in this property in any manner whatsoever.
If he has filed an injunction suit seeking an injunction against both of you from trying to alienate this property this is highly illegal and both of you must decide to fight this out. Since you are overseas your mother can engage an advocate in Chennai for herself and you, on 21/3/16 she can be present in court, opposing the grant of any kind of stay or injunction as sought by your brother. The court will dispense your appearance as you are duly rep by your advocate and because you stay overseas.
Further provide all proofs of payment and copy of the sale deed explaining to the court in writing that this is the self acquired property of both you and your mother and that your brother in no way claim rights over this property.
It is your (both) exclusive property. Your brother has no right in the property. But you have to wait for the result in the court. Finally you will win the case.
It is better if your mom attend on that day personally and ask the court some more time. If your mother is not able to go to the court, atleast send some of your near relatives to the court to take some more time may be 15 days or 30 days to file vakalat. Then you approach some reliable lawyer. You need not come to India immediately. It is enough if you can send your GPA in favour of your mother or any reliably person. She will sign on your behalf. But you have to come to India to attend the court at the time of your evidence (Chief and Cross). The rest your lawyer and your GPA will look after.
On the date of hearing i.e., 21.3.2016, if your mother is available locally she can appear before the court and can represent you too stating that since you are at abroad, she is representing you and shall engage an advocate for both of you shortly and to adjourn the hearing accordingly. Alternately she can engage an advocate who will file vakalat for her and shall undertake to file vakalat for you shortly after you return to India.
This will solve the issue.
In fact you can send a vakalat to your advocate from abroad itself with your signature on it and getting it duly attested by a notary public of that country or by an official of the Indian embassy or High commissioner and send it across which shall solve the problem.
1. If you and your mother has bought the property from your own earnings and have registered the sale deed in your name, then you are the absolute owners of the said property,
2. Your brother has no merit in claiming share of the said property.
1. Execute a POA in favour of your mother authorising her to represent you in the said case duly notarising the said POA before the authorised officer of your local Indian Consulate,
2. Based on the said POA, she will be able to represent you in the said case and also will be able to submit written statement for and on your behalf in addition to that of hers.
Thank you very much all for the response, much appreciated ! We have engaged a lawyer now and have filed a vakalat, the next hearing is on the 8th is April as we have asked for the affidavit and the other docs which we haven't received when we got the notice. Couple of quick questions if I can....
From what everyone has said above, I clearly see that I will win this case but my in laws want me to get compromised with my brother as they are worried that this will take 10-15 yrs to settle in court. Is that true ? If I did that, my brother is going to demand and he will get what he wanted and I'm not really prepared for it. He has not done anything to my mum for the last 15 years. He is an Alcoholic, doesn't have a good relationship with wife and doesn't have a proper job.
My mum is 64yrs old, my dad passed away 11yrs ago so she doesn't have any support back in India as I work and live here in Australia. She needs to go through all this stress, case and court etc, which is going to have an effect on her health, time and also mentally
Do you all recommend to fight it at the court ? From your experiences how long do you think it'll take to finalise.
Asked 2 years ago
1) if your brother does not get any stay from court he would lose interest in the litigation
2) it is doubtful that he would be able to afford litigation if he has no steady job
3) suits take 15 years to be disposed of depending upon pendency of cases in court
If you are not giving a fight back there are chance to lose your property, hence your mother to avoid frequent visits to court can give a power of attorney deed to anyone close and confident to her. For that matter her lawyer also can take care of the issue during trial. Why at all a compromise?
Do not be so clear in your vision as the outcome of a courtroom battle teaches one to expect the unexpected. If you are on the right side of law then fight for your rights. It is likely to take time as equal opportunity of being heard is to be given to your adversaries.
1. The case may run for 3 to 4 years and 10 to 15 years may be a far fetched assumption,
2.This is a simple case where you have all the chances to win,
3. I find no reason for going for a settlement with your brother in connection with the property co-owned by you with your mother.