• Misusing the Will

Hello All,

My grandmother bought a property X on her own in 1960. And executed a will in 1976 and got this will registered the same year before she died. In the will she mentioned that the property x can be enjoyed my father as life estate and vested reminder to me i.e his son. My father knowingly\Unknowingly  pledged the property in nationalized bank and bank approved him some loan for his firm. Along with it he also pledged many properties that belong to him. Slowly his firm became NPA and bank has filed suit against him. 

In this process bank had auctioned the Property X which belong to me and i came to know about this later and filed a declaration suit against 3 defendants. 
1) My Father
2) Bank
3) Purchaser

Just after filing the suit i got injection stay from court stating that not to alienate the property. 

The purchaser destroyed the property and started constructing new building and looking forward to give the property to lease.  

(My mother died when i was 8 years and my father happened to marry a another women and from then on he was never cooperative and liking us)

As I am living in abroad since a very long time I doubt if My father has colluded with Bank and Purchaser to got this property sold. 


Few questions 

1) What are the strength of the Purchaser or bank ? Why would purchaser still going ahead with construction without fear? If he loses the case then can he claim that he had invested so much money in the construction and also mortgage the X property for same ?

2)  Suppose if i win the case then is it possible that my father would get Life interest in the property again? what measures should be taken to make sure that he should not get Life interest as he has misused my grand mothers Will. 

Is there any law or case examples that mis using of will will result in loosing the rights of the property.

Regards,
Ajay
Asked 4 months ago in Property Law from United States
Religion: Hindu
Dear Ajay
My opinion on your queries are as under:

What are the strength of the Purchaser or bank ? Why would purchaser still going ahead with construction without fear? If he loses the case then can he claim that he had invested so much money in the construction and also mortgage the X property for same ?
Opinion: he may claim his money from your father who mortgage the property or sell the property to him, purchaser may file a civil suit for damage against your father and also file a cheating case.

2)  Suppose if i win the case then is it possible that my father would get Life interest in the property again? what measures should be taken to make sure that he should not get Life interest as he has misused my grand mothers Will. 
Opinion: as per Will he will be the interested in the property and entitle to use the same but can not sell the property, no law of india can restrain him to enjoyed the property.


Is there any law or case examples that mis using of will will result in loosing the rights of the property.
Opinion: what is the misuse of Will, as per your information the will she mentioned that the property x can be enjoyed by father as life estate and vested reminder to you. Then he has all rights to use the property, let out the property, mortgage the property, construct the property but your interest can not be denied, after him this property will goes to you, hence the property can not be sell by any means by him or any body till he alive.
Feel free to call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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Hi Ajay
1) Your father has got only life interest in the property.
2) However banks do provide loans against life interest in the assumption that the borrower has good intentions to repay. Banks do not get in to personal issues of borrower.  
3) Technically the purchaser has purchased the property from the bank and hence his interests are protected as he has no connection whatsoever with you or your father. 
4) Probably the purchaser would also have availed bank finance by mortgaging the property and hence his interests would have been double protected on the grounds that he had initially purchased the property through bank auction and also that he must have obtained loan against the said property. 
5) with reference to your interest in the property, it appears that in all probability you will fight a long and tough legal battle as it is apparent that your father has abused the life interest vested on him on the said property by mortgaging the said property in lieu of a  loan and then handing over possession of the property to the bank, subsequent to which the auction was done by the bank. 
6) i sincerely agree that your rights have been tampered / Destroyed by your own father and this has caused great injustice and financial loss to you.

Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
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1) if father had only life interest in the property he could not have mortgaged the premises to bank . It was duty of bank to do due diligence before sanction of loan 

2) you have good case on merits . The contention of purchaser woukd be he was bonafide purchaser of value .it was purchaser duty to check whether bank had clear and marketable titje to property 

3) if you win the case bank will recover the amount from your father 

3) your father has life intetest as per grand mother will 
Ajay Sethi
Advocate, Mumbai
23351 Answers
1221 Consultations
5.0 on 5.0
General principle is life tenant cannot missuse i.e sell take loan on the property without the consent of reminder benfeciary.

The impunged injuction order  passed as exparte can be challenged in superior court. You have to take stay orders if u have fear of loosing property. 
You can also contact to the nri cell of the same state state the facts.

As i have read above said it is also come to my onowledge that ur father has mortgaged property to the bank. He uas the power to sell the property .
You need to take some quick steps and morever u r lucky its civil case u dont have to ohysically presence in much time.

There are soo many cases misusing the rights like a life estate has the right of posession only till his life.
Shivam Sood
Advocate, Ludhiana
80 Answers
0 Consultations
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1) From your description the bank and the purchaser do not have a case to defend as they acted without due diligence. If the Will clearly states that the property should ultimately come to you, your father was right in mortgaging it but the bank had no right to auction or alienate as technically that would go against the Will, on whose guarantee the loan was sanctioned. He is constructing because if the court verdict is against them he can sue the bank. That he invested would be no acceptable plea. He is taking a calculated risk.

2) As per the Will of the grandmother the rights will accrue to you only after the lifetime of your father and hence if you get a favourable order from the court, he will continue to have life interest. You can move a petition in the same court  seeking to place restrictions on the life interest of father in the light of the history of abuse.

3) You should have moved a petition in the court to maintain status-quo of the property through injunction. Alternately, now you can to get the construction arrested.   

S J Mathew
Advocate, Mumbai
1953 Answers
65 Consultations
5.0 on 5.0
1. The said mortgaged property did not belong to your father. He was just allowed life interest on it. Nobody can mortgage (or deal with) the title of a property more than what he has. So, he was not authorised to create security in interest on the said property for which the said mortgage is bad, hence not enforceable. The ideal situation would have been to approach DRT after seeing the sale notice which could not be done by you for staying abroad. Since it was a bad mortgage, the subsequent purchase was also bad for which the buyer can claim refund of his money from the Bank,

2. You are certain to win the case. Even if you win the case, the life interest of your father as per the will of your grandmother stays. So, he will be legally entitled to stay in the said property.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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1. If injunction was issued before the sale of the property then the bank and the purchaser were bound by it. However, if the injunction was ordered only against the bank then the purchaser was not bound by it. The court order needs to be read threadbare to ascertain the further remedy.

2. Your father can enjoy the life estate even if you win the case as life estate continues so long as the life estate holder lives. You can file a fresh suit for injunction against him to restrain him from alienating the property.

3. Consult a lawyer with a copy of the court order and the declaration suit filed by you.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) What are the strength of the Purchaser or bank ? Why would purchaser still going ahead with construction without fear? If he loses the case then can he claim that he had invested so much money in the construction and also mortgage the X property for same ?

The bank has done an error by not obtaining proper legal opinion to the title of the property mortgaged with it as collateral security.

Therefore the bank cannot claim any excuse at this stage and they cannot be able to defend themselves properly.

The buyer has to depend on the bank's stand in the court.

If bank loses the case then the buyer has to return the property, he cannot claim the cost of investment in the property. 

The bank will be held liable to return the property, your father is liable for criminal action for cheating the bank by pledging the property that did not belong to him or in which he just had lifetime interest alone and no marketable title.








2)  Suppose if i win the case then is it possible that my father would get Life interest in the property again? what measures should be taken to make sure that he should not get Life interest as he has misused my grand mothers Will. 

It is on the basis of life time interest only you are going to fight this case so you cannot deny him the right vested in the bequest.






Is there any law or case examples that mis using of will will result in loosing the rights of the property.

There are plenty of settled laws in this regard, you may browse through internet looking for one in this regard. 
T Kalaiselvan
Advocate, Vellore
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