No mere affidavit is not sufficient to transfer properties
2) gift deed or relinquishment deed has to be executed duly stamped and registered
My mother signed as witness on her brothers partitions
Dear sirs, My grandfather and grandmother was expired after 2005 Hindu succession act, without making any will or sale deeds. They are having their anisiter properties and some of self aquir properties also. Now their sons prepared documents and they bring the documents last pages and took signature from my mother and her sister as witness number 3 and 4. then got registered. Even they dose not attend to register office. As my mother and her sister dint know even about 2005 amendment, they simply signed on those papers. Requesting you sirs, Can immovable properties can be transfer by witness or affidavit to co-owners ? Lot of brothers doing to their sisters this in India, so please give me a valuable information. it is not only for my mother, I hope it can be helpful to all women over india. Yours sincerely, prasad..
Asked 4 years ago in Property Law
Religion: Hindu
46 Answers
Hi
Your mother and her sister can file a suit for partition and also challenge the documents signed by them as a witnesses stating that
a) their signatures were obtained by fraud , coercion and undue duress.
b) that they have not signed any partition/settlement deed before the sub-registrar.
Also, mere signing as witness in a deed of conveyance does not mean that they have consented to the terms of partition/settlement between the other family members. Their signatures should be reflecting in their capacities as claimants/legal heirs.
So, next steps are
a) Issue notices of partition to all the legal heirs of your grand father and grand mother and
b) File a suit for partition and declaratory title under Order 6 CPC in the court and also ask for injunction under Order 39 so as to restrain your uncle's from disposing the property.
Hope this information is useful
- As per law, after the death of your grandparents intestate after 2005 , then their property/asset would be devolved upon legal heirs i.e sons & daughter equally.
- Further , without the appearance of witness or the parties , a document cannot be registered from the office of registrar legally.
- Further , if they have prepared any affidavit or sale agreement after receiving the signatures , then also having no value in the eye of law.
- Your mother and her sister should issue a legal notice , and thereby ask for their equal share in the property .
- If refuse , then fie a Partition & Permanent Injunction suit before the court for getting respective shares and to restrained him to sell the property .
No, immovable properties cannot be transferred by witness
or affidavit to co-owners.
At this stage, we do not know which documents they have taken
them witness and what for the affidavit is executed. Even
otherwise, in case they have partitioned the property by getting the
signatures of the mother and sister, it can be challenged in the court.
Now, the best option is to hire a civil lawyer. File a suit for declaration,
mandatory and permanent injunction, possession and consequential
relief, just as cancellation of partition deed which has been done by
fraud and cancellation of other subsequent deeds, if any. In reply
to the suit, they would definitely file the documents relief upon and
then we can amend the plaint accordingly. But at this stage action
to be taken immediately and a stay can be obtained from the court
restraining them from further sale, gift, etc. of the property after
partition. Immediate action would bring good results. Good luck.
Hello,
- As such your mother and aunt did have equal shares in the properties left behind by your grandfather and grandmother. Your uncles have obviously deceived your mother and aunt and made them to sign on some document thereby transferring the properties in their favour.
- Your mother and aunt must demand their share of the properties by sending a legal notice referring to what happened after the death of your grandparents.
- You will need to file a suit for appropriate re partition and cancellation of the previous document registered.
- You might as well press criminal charges against the uncles for cheating and using unfair means to create documents.
Since both of them expired after 2005 , both the daughters and sons have equal rights.
This right of shares can not be extinguished in any manner except with consent of daughters- circumstances sharers.
Therefore if the daughters are deprived to get their respective share they can file suit for partition and injunction.
So do accordingly.
No immovable property can be only transfered through registered sale deeds
Sir, is their any limitation period ?
Asked 4 years ago
Your mother can file suit for partition for division of property by metes and bounds
she can claim her share in property
her claim would not be barred by limitation
Limitation period for what?
Not without registered release deed. Your father alive ?
To transfer share of mother, registered release deed or gift is necessary. Ownership in the immovable propriety dose not transfer through/by witness or affidavit to co-owners
- No limitation would be applied in your case
- Better send a legal notice for asking the share of your mother , and hence the limitation will run from the date , when her brother refuse to give share after receiving the notice.
You can connect me via kaanoon.com , if further advise needed.
There is no limitation for partition suit. It as concurring cause of action.
Please file suit for partition of shares of property before the Court for division of property.
They got signatures on NOCs,
File a suit for specific performance suit for cancellation of the registered deeds.
Than file a partition suit
It is not a matter of limitation but any delay can amount to complications of litigation. For example, in case after partition, they sell, gift, mortgage, lease, etc., they would have to be added as necessary party to the suit and by the time we file the suit the third party would have already created further third party interest and there is no end. In my opinion, immediate stay or status quo order should be obtained to get the property back legally. You have a good case and need to be contested forcefully. Even otherwise, the witness should have been present before the Sub Registrar concerned. That is not the case. Something is missing. Rest upon you. Discuss the matter with local civil lawyer immediately
Hi
Limitation period is 12 years or whenever the fraud / forgery comes in to light. In your case, even assuming your mother has signed the document somewhere prior to 2008, still she can file the partition suit.
No worries.
your mother can challenge it both before the Civil Court and in the Criminal Court on the ground that your signature was obtained under misrepresentation, fraudulently and by cheating. It is also possible to file a case for breach of trust. For the civil case: You can file a Suit for Declaration for declaring that the Deed is null and void and your mother can also seek a Permanent Injunction. For the criminal case: You can file a case under the provisions of the Indian Penal Code with regard to misrepresentation, fraud, cheating and breach of trust.
no limitations. Call us through the website for further assistance.
1. Under Hindu Law a property attains ancestral character only and only if it remains undivided for up to at least 4 generations.
2. Hindu Succession (Amendment) Act, 2005 applies to only ancestral properties, not self acquired and separate properties.
3. If your grandparents died intestate then on their demise their properties devolved through intestate succession on all their children including daughters equally.
4. Unless your mother and her sister have signed the release deed in favour of their brothers they can still claim their share by filing a suit for partition in the civil court.
The limitation period is 3 years, but don't wait anymore.
Your mother is entitled to a legitimate share out of her parents property.
Just merely signing as a witness to the partition deed will not deprive her rights in the property.
She can file a petition suit seeking proper division of property by metes and bounds with separate possession of her entitled share in the property.
You can consult a local advocate and proceed as suggested.
1. Yes immovable properties can be transferred to legal heirs by consent of legal heirs giving up their share.
2. Limitation for challenging the transfer is 3 years from date of transfer or from date of knowledge to aggrieved party in this case date of tranfer will be considered because your mother and her sister signed as witness for settlement deed.
If they had fraudulently done this then the sister and mother should file a suit for cancellation of sale deed.
There is a limitation period of 3 years but they have to show that they came to the court when they got to know.
It has to be registered.
Regards
Sir, is their any exemption in the court fee, for my mother. Because the extensions of lands of my grand parents is high as we cant bare. Kindly someone, please reply to help me on this regard. Thanking you sir..
Asked 4 years ago
File.pauper suit
There is no exemption.
There is no exemption from court fees
she has to pay court fees depending upon reliefs claimed in suit
contact a local lawyer
Your mother cannot avoid paying the fixed court fee for filing the partition suit.
If she claims that she cannot be able to pay the court fee, then she may have to file pauper petition seeking to declare her pauper by which she will be exempted to pay the court fee for now and she would be directed to pay the court fee after acquiring her property by the sources of income yielded through the property or by selling a portion of the property.
Pauper suits doesn't require Court fees.
You may file pauper suit on behalf of your mother showing her inability to pay the Court Fees.
there is no exemption.
Go for pauper suit if you comes under the category of pauper.
- You can claim before the court that some portion of the property is in use and occupation of your mother , then she will have to pay a nominal court fee at the time of filing the suit.
There is no exemption in court fee. You need to pay the same. Only in pauper suits there is exemption of court fees
1. There is no exemption for your mother.
2. All that she can do is seek permission of the court to sue without paying court fee.
These fees cannot be fully exempted
There is no exemption i am sorry.
Sir, their is 5 members. 3 brothers and one sister for my mother. So my mother has to pay only for my mother's share 20%, or for complete property? As courts fee. Please reply sir.
Asked 4 years ago
Your mother has to pay court fees only for her share in property
Hi
The court fees is payable only for your mother's share of property.
The court fee shall be paid for her legitimate share alone and not for the entire property.
She has to pay for her share.
She needs to pay court fee for complete amount of relief claimed for said of property in her suit
she has to pay court fees for her share.
Court fees is paid on the basis prayers made in the petition before the court for entire process of the case wherein Plaintiff and defendant are mentioned in cause title.
The court fees is applicable to all not only for your mother.Since your mother is going to seek relief from the court hence she has to pay the court fees as per prayers are made in the petition.
She have to file partition for whole property. She is in possesion, no court fees
She need to pay for her share.
- If she can show that she is staying the property where her share is lying , then she will have to pay only a nominal court fee for filing the suit .
- Otherwise she will have to pay as per her share only i.e. on 20 percent .