Hello Sir, I need advice regarding an ancestral property that is in the name of my grandfather in a village called Thally, Tamil Nadu. My grandfather passed away 28 years ago but the property is still in his name. My grandfather has 7 children. My father and uncle want to sell the property now. But my father’s younger brother left home when he was 25 years old and nobody knows about his whereabouts. We are not sure if he is alive. Without him being present, it has become difficult to divide the property or even sell it as people are scared to buy he might comeback. What is the solution here? Please advice
There is a term in law known as legal death which means that if a person is missing for 7 or more years then he will be considered dead and legal proceedings may be initiated by his kins wrt his movable and immovable property.
Therefore act accordingly.
According to the provision contained in Section 108 of the Evidence Act, if before any Court a question arises as to whether a person is dead or alive, the Court can legitimately draw the inference mentioned in that section if it is proved that he has not been heard of for seven years by those who would have naturally heard of him if he had been alive.
2)you have to file suit for declaration in civil court that your brother is dead as he was not heard of for 7 years . rely upon missing person report filed by you in local police station seven years before
3)the Court will insist upon notice of the application upon all those persons who might become natural heirs of the deceased if the death occurred at any particular time or times during the period of the said seven years and after hearing those persons, the Court will come to the conclusion whether deceased was really dead.
4) on basis of court order apply for mutation of property in name of legal heirs
Obtain a declaration from court by filing a suit to the effect that the son is not heard of for the last more than 7 years and therefore it should be declared that he is presumed to be dead u/s 108 of evidence act
The defendant parties will be the state and union government and the unknown legal heirs of the son if any
1. File "Declaration Suit" in the local Civil Court to delcare status of missing /deceased person. Based on Civil Court order, the ancestral property can be legally sold by remaining legal heirs with mutual consent & joint signatures.
Keep Smiling .... Hemant Agarwal
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An order from the Court would suffice.
G.RAJAGANAPATHY
High Court of Madras
1. If your father's brother is missing for more than 7 years, a death certificate can be obtained in his name from the statutory authorities/jurisdictional Court.
2. Based on the death certificate of your father's brother, your father and his remaining siblings can either divide the property equally or sell the property and divide the proceeds equally amongst the siblings.
You can sell your Unpartitioned share in it now. If you want partition then you need to file partition suit
In the given situation, your father and his remaining siblings can arrive at an amicable decision to partition the property into seven equal parts and to allot one such part to the missing sibling so that he can inherit his share whenever he returns.
After that your father and his other siblings can execute a registered sale deed jointly to sell the remaining shares in the property in favor of the prospective buyer.
1. You shall have to send a notice to him about selling the said property and also asking him to reply/contact within next one month, at his last known address or to his friends and/or relatives.
2. If no trace is found, you shall have to release the said notice in two newspapers, one in vernacular and the other in English.
3. If no body replies within the specified period, he can be treated as dead and thereafter then property can be sold jointly to the buyer.
- As per law, after the death of your grandfather intestate , his property would be devolved upon 7 children equally.
- Further , if the younger brother is unmarried and missing more than 7 years period , then a missing compliant can be filed by other legal heirs to get a missing certificate .
- Further, if missing certificate not issued by the police , then they can approach to get an order from the court and to sell the property.
- Further , other legal heirs can partition the said property equally ,and sell their respective share indecently.
You should have filed a 'missing person' complaint with the police, given a newspaper advertisement and obtained a 'non-traceable' certificate from the police in respect of your uncle. A person is legally presumed dead if unheard of for seven years or more. But, you should have taken all the steps required under the law by now.
Hi,
If u have not heard of your brother for 7 years yes you can through proper certificate of inheritance you can sell the ancestral property.
Rgds
