• Cancellation of Settlement Deed

Sir,

My relative is a senior citizen and living in Chennai. He had built a 880 sq.ft house after buying a plot (880 sq.ft) from Tamilnadu housing board (Govt.). The land has been registered in my relative's name even though he was in a joint family at that time (30 years ago). 8 years ago his own brother forced my relative to give 50% share of this land (and part of the house in the 50% land). My relative has made a settlement deed to his brother to give him 50% share.

Recently, my relative wanted to sell his remaining 50% share, so he read the settlement deed document just to see if there is any problem in selling his own share. He found that there is a wrong information added in the document, i.e., the document says that he does not have any legal heir after him, but he has two daughters and they are married. Now, my relative is claiming that at the time of registration of settlement deed, it was not mentioned anything about his legal heir in the document, so now he feels that his brother has given him wrong copy of the deed to read, but changed the copy of document before getting his signature. This action is completely illegal.

1.	Is it possible for my relative to cancel the settlement deed in the register office after showing the wrong statement in the document? or
2.	Is it possible for him to win in the civil court if he files a case to cancel the settlement deed?
3.	If the settlement deed can’t be cancelled, is it possible to claim a monthly pension from his brother for the maintenance of family (of my relative – the donor) based on the settlement deed & Maintenance of senior citizens and welfare Act 2007?

Regards,
Asked 1 month ago in Property Law from Chennai, Tamil Nadu
Religion: Hindu
1) deed of cancellation of settlement deed can be made only with consent of parties 

2) your relative can move court to set aside settlement deed on grounds of coercion or fraud

3) but delay of 8 years in filing suit makes chances of success bleak  . 

4) relative as co owner is free to sell his share in property without consent of his brother 

5) under section 44 of transfer of property act co owner cans ell his share without consent of other co owners 
Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
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1. The settlement deed is a product of coercion and fraud, so your relative may file a suit for declaration of the settlement deed as illegal. No one ceases to have legal heirs by merely making a statement to this effect. The doors of succession can be closed on the heirs through a bequest or another instrument of settlement of property, but the existence of heirs does not vanish by a statement to this effect. 

2. The settlement deed cannot be transferred as it resulted in instantaneous transfer of title to his brother. The only remedy for your relative is to file a suit for cancellation of the deed.

3. He cannot claim maintenance from his brother.
Ashish Davessar
Advocate, Jaipur
18063 Answers
446 Consultations
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1. The settlement deed was executed by him which he had registered also. so, it will be difficult for him to rely on the ground that the deed copy was made and placed before him by his brother. the registered settlement deed can not be cancelled unless there is a court order to that effect.

2. He can file a declaratory suit praying for a declaration that the said settlement deed has been registered fraudulently by his brother or on any acceptable ground. In case his ground is strong to convince the Court about the illegality of the settlement deed, there is hardly any chance that an order for its cancellation will be passed by the Court.

3. No claim for maintenance of his family can be legally made to his brother.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
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 suit to set aside settlement deed ought to have been filed within period of 3 years 

2) relative should file suit 

3) your relative can during lifetime execute gift deed for his share in property 

4) suit may take over 10 years ti be disposed of 

5) you cannot directly approach HC if jurisdiction is of district court 
Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
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1. 12 years it is.
2. The daughters are likely to face problems due to the clause mentioned in the settlement deed. During his lifetime your relative should do all he can so that the doors of succession do not get closed on his heirs subsequent to his demise.
3. The suit can be filed by your relative alone.
4. It will take 2 to 3 years. It can be filed only in the court of competent jurisdiction. If the disposal of it gets delayed he can move the HC for a speedy trial.
Ashish Davessar
Advocate, Jaipur
18063 Answers
446 Consultations
5.0 on 5.0
1.	Is it possible for my relative to cancel the settlement deed in the register office after showing the wrong statement in the document? or

If the conditions imposed in the settlement deed is not complied with then the same may be cancelled by filing a suit before the court. 



2.	Is it possible for him to win in the civil court if he files a case to cancel the settlement deed?

The settlement deed document is to be seen for giving a proper opinion.





3.	If the settlement deed can’t be cancelled, is it possible to claim a monthly pension from his brother for the maintenance of family (of my relative – the donor) based on the settlement deed & Maintenance of senior citizens and welfare Act 2007?

There is no provision in law for claiming monthly pension from is brother. 
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
5.0 on 5.0
1) In this case, is it lawful to consider the article 64 of "Limitation Act 1963" (Part 5 - Suits relating to immovable property)? This section gives 12 years of time to file a civil suit. Is it 3 years or 12 years limit according to this act for my relative's case?. In this case the exact time of settlement deed is done 7 years 4 months back.

It is three years and not 12 years.





2)After the life time of my relative, if his daughters want to sell his father's 50% share, will there be any problem because of the wrong statement in the settlement deed (it is mentioned in the document that there is no legal heir for my relative)?

The daughters of the relative can acquire the 50% share in the property that belongs to your relative after his life time.




3) To be successful in this case in the civil court, what would be appropriate whether my relative himself should file a civil suite or his daughters ?

The affected person only can aproach court for seeking relief and not others. 





4) Approximately how much time would it take to get the judgement from civil court? Is it allowed to approach Madras High court if it takes more time in district civil court (only in case if it takes more time)?

Time taken cannot be predicted, it may take 3 years or more also. 
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
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1. In the instant case, the limitation is 12 years.

2. The settlement deed agrees for settling 50% share of the whole property in the name of your relative. So, that part is conclusive. The fact that he has mentioned that he does not have any legal heirs when he had two of his daughters does not make any difference in his claiming share of 50% share of the property. So, when his title on 50% share of the property is established, his legal heirs, being his daughters, will be entitled to sell his said share of the property legally.

3. Your relative should file the Civil Suit since he is still alive and after his demise, his daughters should file a substitution petition in the instant case to replace their father as plaintiff.

4. It may take around 2 to 4 years depending on the load on the Court and also the pursuasive skill of your lawyer to move matters faster in the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
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Will the wrong statement in the settlement deed can be considered as serious injury to my relative by court, and will the court cancel the entire settlement deed (or) only the specific part (wrong statement part) of the document? The "wrong clause" is the only evidence that my relative has to show it to court for "coercion and fraud" action of his brother.

The statement whether wrong or right will not be decided by the court on its own, it depends on how the parties convince the court about its righteousness. 
In fact the referred wrong statement in the settlement deed is not at all going to affect your relative at his moment because it has got nothing to do with his own 50% share in the property. 
He is still the absolute owner of his own share in the property and he can very well sell or transfer or execute a settlement or gift deed of the same to his daughters. 
There is no clause restricting him to do so.
In fact the words like no legal heirs cannot be called as coercion and fraud, your relative should have actually objected to that then and there itself whereas he slept over the subject issue and now he claims innocence about it.  The law will not dance to his tunes. 








2) Though this case will be declaration suit, this is to get back the title of immovable property, So I think it is 12 years time limit as per article 64 of "Limitation Act 1963" (Part 5 - Suits relating to immovable property).
If the judge in the particular court feels that it is only 3 years time limit, will he/she cancel my relative's petition at the starting of the hearing by saying that the pray is not acceptable? (here, I can see two different opinion from experts). If it only 3 years then there is no meaning in filing a civil suite as it may not be accepted by court.

By the above it appears you understand the law better than the lawyers, so you may proceed as per your understanding and proposed desire. 









3) One thing I can clearly understand that my relative/his daughters have 50% share without any doubt. The current thinking of my relative is that due to the wrong statement added by his brother, my relative is thinking that he has been cheated by his brother. 
So, if possible, he wants to cancel the entire document by showing the wrong clause in the settlement deed to the court. In addition to the illegal action, after the registration of the document, his brother has broken the joint family and he has moved to another city and he does not care about my relative anymore, but the settlement deed says that it is due to love & affection towards his brother the 50% share is given to him.

There appears no condition attached to the settlement deed hence it may not be possible to cancel or revoke the settlement deed which has already been acted upon by the beneficiary. 








4) If it is not possible to cancel the entire settlement deed due to the wrong clause in the document, then why should my relative file civil suite?

In my opinion the wordings in he settlement deed namely " he does not have any legal heir after him" do not make any sense to term it as wrong clause or wrong statement, it is an error and it can be rectified, thus this will render the settlement deed as null and void.  
If your relative feels that this is wrong then he should understand the law that the question of legal heirs will come only after the lifetime of an individual  and moreover if this was the only thing which is a cause of concern then I  opine that this is not a wrong statement or clause that will change the meaning of the settlement deed,however this error can be rectified by executing a fresh registered  rectification deed on this. 
There may not be a necessity to file a declaration suit. 










5) I asked my relative's daughters to get legal heir certificate from government, so that they can sell father's 50% share later, and this certificate can be shown as a proof as well in the court if they want to file civil suit.

If your relative is living then she cannot get a legal heirship certificate.
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
5.0 on 5.0
had your brother moved court immediately after execution of settlement deed he could have made out a case . the delay of 8 years in filing suit to set aside settlement deed would be fatal to his case . 

2) the court will not set aside the entire settlement deed 

3) suit to set aside settlement deed ought to have been filed within period of 3 years 

4) your relative should not file suit 
Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
5.0 on 5.0
1. The limitation is 12 years.
2. If the judge dismisses the suit at the threshold itself then this order can be assailed before the higher courts which can set it aside.
3. The settlement deed cannot be cancelled in part, the cancellation can be only of the entire deed. It is your relative's call if he is to file the suit or not.
Ashish Davessar
Advocate, Jaipur
18063 Answers
446 Consultations
5.0 on 5.0
1. As per your statement, the entire property stood in the name of your relative from where he has transferred 50% share to his brother through a registered Settlement Deed. In the said settlement deed it has been mentioned that he does not have any legal heir after him when he has two daughters.   Your understanding is that since wrong statement has been mentioned in the said settlement deed, it is should be treated as void and the settlement deed cancelled. As per me your said argument does not hold ground before the Court since the fact whether he has legal heirs or not has no consequence on enforcement of and legality of the said settlement deed since the said property was not an ancestral property and your relative was the absolute owner of his said property and is entitled to deal with his own property without taking consent of anybody including his legal heirs. the said wrong statement about his not having any legal heirs will not make the said settlement deed void at law. It would have been considered as void had the property been an ancestral property.

2. In the instant case the limitation period is 12 years as has been informed in my earlier post.

3. For mentioning in the settlement deed that your relative does not have any legal heir when he has two daughters he was in no way cheated. Had it been mentioned that he has two daughters, there would not have been any change in the outcome of the said settlement deed.

4. I find no merit in his argument that because of the said mistake made in the settlement deed about disclosing his legal hairs which is of no consequence to the deed, the said settlement deed is liable to be cancelled.

5. Legal heir certificate can be collected from  Tehshilder/Councilor of local BLRO/Panchayat/Municipality.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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