Regarding suit for possession and damages
ss
(Querist) 01 December 2009
This query is : Resolved
My father died intestate suddenly during 1989 leaving a property in Delhi having built up three floors. There are three legal heirs including widow mother. In one of the floor I am residing alongwith my family. My sister wants to grab entire property through my mother for which on her provocation my mother filed a suit for possession and damages against me on the basis of a Will in a plain paper. My father died at a very young age suddenly. In another case due to their ill-intention I had filed a suit for permanent injunction in which decree granted to me and bother the two legal heirs given in writing in the court that they admit my possession and will not try to dispossess me. In view of the above facts, please advise me on the following querries:-
1. Can suit for possession and damages filed against me still have any merits or it will now be rejected automatically by the court.
2. Can my mother is entitled to file the suit for possession and damages against her own child who is one of the legal heir of the property.
3. What are the main conditions for filing suit for possession and damages and what kind of further course of action is required to be initiated by me.
4. Relevant court judgement on the above cited subject matter.
adv. rajeev ( rajoo )
(Expert) 02 December 2009
Your mother is claiming the possession on the basis of the will, you have not cleared whether the properties are self acquired properties or ancestral, if it is self acquired he could have disposed the property according to his will and wish, if ancestral he cannot.
You have to contest the case denying the execution of the will, burden lies on you to prove that will is bogus and to prove burden lies on your mother.
This suit is not maintainable because without declaration only for possession and damages cannot be filed.
Admission in written given by your sisters regarding your possession does not make much difference.
ss
(Querist) 02 December 2009
This property was allotted to my late father under the East Pakistan Displaced Persons Scheme in Delhi by govt. of india in lieu of property held by his ancestors in East Pakistan on submission of land revenue receipt and bonafide displaced person certificate by him. The property is still leasehold. The Will submitted by them is unprobated/unregistered. My mother and sister admitted my possession in the property in the court. Please clarify about the term declaration and why the suit is not maintainable without declaration. Also request to quote necessary judgement on the above subject matter.
Raj Kumar Makkad
(Expert) 02 December 2009
As the will has not been got probated as required mandatarily so merely the suit for possession an damages is not maintainable. After passing decree in your favour, their suit otherwise also goes. You can bring all these facts in your written statement. As the property was on lease against the properties left in East Pakistan, the same shall be regarded as an ancestral property and even will, if is duly proved by your mother and sister is not maintainable hence you are at winner side.
H. S. Thukral
(Expert) 02 December 2009
Injunction granted in your favour does not bar initiation of a suit for possession and damages against you. But in the circumstances the suit for possession and damages can not brought by your mother against you on the basis of an unproved will which has been objected to. Usually the probate jurisdiction is with the district judge.It would be seen in the probate proceedings whether the property of the testator were self acquired or ancestral.
niranjan
(Expert) 02 December 2009
Your mother will have to submit Lease-hold order of the govt.It would have been mentioned therein that this property is given to you in lieu of ancestral property.If that be so,will does not survive for the whole property.She should first get declaration that she is the owner of the whole property and then conseuential reliefs could be granted.I agree with the opinions of other learned experts.
ss
(Querist) 06 December 2009
To
ShrRaj Kumar Makkad, Advocate
Refer to my above said querry posted on 1.12.09 and your reply posted on 2.12.09. Please advise me on the following undermentioned querry:-
In your reply you have conveyed me that since the property was on lease against the properties left in East Pakistan, the same shall be regarded as an ancestral property, therefore, I request you to provide me a copy of the relevant rules/orders or name of the law books quoting the exact rules/judgements/orders available for suitable action.
