you can file an amended plaint under orderVI rule 17 and can bring on record those properties also and take a interim stay on those properties as early as possible
My right in the property of my father inherited from grand father
Sir, My father got his share of property by a court verdict in the year 1937 from his grand father. His father ( My grand father died ) died at an early age. My father had three sons later . In the Year 1963 he made a partition deed registered for his sons including me. Till date we live as a hindu joint family and no settlement effected between us. I went to the court in 2005 for my share of property and to severe the HUF status. My Lawyer left out some of the immovable properties in the list submitted to the court. The court has given a preliminary order appointing a Commissioner. But the commission enquiries are not carried so far. Now the sons of My eldest brother( Who is no more) are selling the immovable properties which are not submitted before the court claiming that this part of propert are in their father's name Which are highly valuable urban lands. Can i claim rights in this property which is in the name of my brother?
Asked 11 years ago in Property Law
20 Answers
amend your plaint to include list of immoveable properties left out by your lawyer . dont balme your lawyer as Plaint is signed by you . it is your duty to check whether all immoveable propeties have been included . you can obtain an injunction restraining sale of properties by your cousins .
Thank you sir. Its innocence(Ignorance) that brings problems . How to cancel the registration of the properties by my cousins since for a valid registration there should be root document specifying the mode of acquirance of property. They have not shown anything and only with the partition deed they done this . Is it valid? can i claim the partition deed by my father is invalid since these are anchestrol property??
Asked 11 years ago
it is your case that partition deed was made by your father in 1963 among all the sons . if as per deed your uncle is shown as owner of some properties his legal heirs would be free to dispose it as they desire . it is necessary to go through the partition deed and other documents to further advice
file a suit for declaration,declaring the sales as null and void
Casting the blame on your lawyer is not proper as the plaint has been signed by you, moreover there may be valid legal reasons for your lawyer to exclude mentioning those properties. Since we have not perused the plaint we cannot vouch if there is negligence or not on the part of your lawyer.
Having regard to the fact that your cousin brothers are attempting to sell the properties which to date are not a subject matter of the case pending adjudication before court it will now be prudent for you to apply for modification of your plaint and request a stay order over the sale after submitting for motion the list of properties left out by you. You need to act swiftly as in the event of properties being sold by your cousin brothers it will be difficult for you to retrieve them as impeaching third party rights is never easy in such proprietary matters.
Without perusing the court order passed in 1937 and the deed of partition made in 1963 it is impossible to apply legal mind, albeit in view of your own statement it seems that HUF status was no more in existence as on the date when you filed the case. The onus is on you to prove the existence of HUF in court.
Registration of properties can be got cancelled by challenging the same in court on the ground that the seller had no right to sell the property.
Thank you sir. The original petition is pending before the court after a prelim decree upholding the equal rights of mine in the list of properties submitted . Now can i approach the high court for an injuction and declaration to declare the sale is invalid by suit either by me or by my son ?.
Asked 11 years ago
You cannot approach High Court directly. Injunction and cancellation of sale has to be sought from the lower court itself. If the lower court rules against you then you may go in for an appeal in the High Court.
it woul depend upon the pecuniary jurisdiction of courts in your state . you have to on basis of legal advice file case for declaration and injunction . where is your original petition pending ? file application for amendment of plaint in same court to include these properties too .
amend your plaint under order VI rule 17 and add all the properties left earlier and file it in the same court where it is already pending
Thank you Respected Lawyers. A). Do i require to prove that the property under dispute is ancestrol ? since it is the other party also have to prove that it is not..!!( Since they only benefitted by this illegal sales) B). Do i need produce the copy of Original Suit by my father in the year 1937? sine it is very long time ago still the records are obtainable? c)In the event i am unable to get the old records from the sub court can i just mention the facts ? since it is the duty of the other party to disprove and claim rights??
Asked 11 years ago
thanks for your appreciation .
if you have xerox copies of suit proceedings you can rely upon them if original is not traceable in court records . you must be having certified copy of order passed by court In 1937 . you need to prove facts mentioned by you
1. You certainly have to prove that the property is ancestral. Your success is contingent on the property being proved ancestral.
2. A xerox copy will suffice.
3. Mentioning the facts will not suffice, you need to prove them.
You certainly have to prove that the property is ancestral.
My sincere thanks to the Legal fraternity. 1. Sir whether this is applicable to the opponent also to prove that the said property is self acquired & gifted to justify their sale? 2. How to get a copy from the sub court ? that too a document almost 80 years old? is it practically possible for me?
Asked 11 years ago
in case of immovable property who ever asserts that he is not the owner of the property in his possession, then it is upon that person to prove that he is not the owner of the property and similarly the other way round.
you can get it get from sub court
your lawyer will do the needful if court records are available of said year
1. In a nutshell, since you have filed the case you alone will have to prove that they are ancestral.
2. Your lawyer will assist you in procuring the required copies.
Incase the original document missing in the court or not traceble ( is it possible) can i produce other form of evidence as explained below: The respondent in the original suit file by my father (1937) did a partition in his family for the properties he received by court order. In that deed he clearly mentioned about the suit and the properties he acquired as per the order . will this evidence can stand..?
Asked 11 years ago
yes certified copy of court order
Thank you for your valuable answers sir. i will try my best to get it from the court.
Asked 11 years ago
my pleasure
certified copy of order will serve the purpose . . thanks for your appreciation
A certified copy of this will suffice.
Thank you for appreciating.