Whether property which belongs to the deceased father can be attached from one of his legal heirs ?
kasinath
(Querist) 27 September 2011
This query is : Resolved
Iam an advocate from Waranal,Andhra Pradesh my problem is, A deceased employee was died during Lis pendency the property of the deceased employee was effected partitioned among his legal heirs, one of the legal heirs got the job of his father on compensatory basis, remaining legal heirs sold their property except this employed employee (compensatory), now my issue is whether the property of this employee can be attached to realise the full amount of his deceased father's property(partitioned). This employee's contention is that the attachment of his property alone is not right. So, Pls suggest me if there is any remedy or citation stating that the plaintiff can recover his full amount by attaching the property of this employee's property which was inherited to him through his (deceased) father, through E.P
prabhakar singh
(Expert) 27 September 2011
AFTER PASSING OF HINDU SUCCESSION ACT 2005
THE rule OF "pious obligation of a hindu son"is a thing of past.
At present every citizen stands on same footing when it comes to share burden of debt
of an ancestor professing any religion,that is none is obliged to discharged the debt personally.
So in cases where a person dies leaving some
undischarged debt,and property (ies) and heirs as well ,according to law after his funeral expenses,his debt liabilities would be discharged FIRST,then residue if any,shall be distributed among his heirs.
THAT MEANS ALL SHARES CLAIMING THE ASSETS
OF DECEASED HAS TO MEET OUT AND DISCHARGE THE DEBT IN PROPORTION TO CLAIM OF SHARE THEY HAVE IN THE PROPERTY.Nothing should be doubted about it.
BUT your this case is qualified by a special circumstance ,that your client has also got a compensatory employment at place of his father which is generally given by department after having a NO OBJECTION from other heirs/claimant,it has not been
clarified if the same by others was given under some agreement oral or written that your client alone will share the burden of debt in lieu of having given exclusive claim of compensatory employment by no objection of others.
If so proved by other heirs, your client is surely under obligation to discharge the debt from his share alone,and no illegality
in it can be pleaded due to his exclusive compensatory employment benefit forming a valid consideration for such a type of agreement as element "something"envisaged in contract Act with respect to consideration gets satisfied.
THE PARTITION ,THOUGH DURING PENDENCY,IF TOOK PLACE AFTER THE COMPENSATORY APPOINTMENT OF YOUR CLIENT,WOULD LEAD TO VALIDATE THE DEFENSE,THE OTHERS HEIRS MAY PLEAD AS NO PROVISION SEPARATELY WAS MADE FOR THE DISCHARGE OF THE OUTSTANG DEBT.
AS REGARDS TO RIGHTS OF CREDITOR DECREE HOLDER, HE HAS RIGHT TO REALIZE THE DEBT FROM ANY OF THE PROPERTY PROVED TO HAVE BEEN OWNED BY THE DECEASED CREDITOR.
IF SUCH AN EXERCISE OF DECREE HOLDER/CREDITORS RIGHT AFFECTS YOUR
CLIENT'S SHARE EXCLUSIVELY,THEN YOUR CLIENT IN LAW HAS A RIGHT TO DEMAND AND SUE OTHER SHARERS FOR REALIZATION OF AMOUNT REALIZED FROM HIM BEYOND HIS SHARE PROVIDED HE CAN COUP WITH DEFENSE THAT COULD BE RAISED AS ANTICIPATED BY ME IN SPECIAL CIRCUMSTANCES OF THIS CASE.
Raj Kumar Makkad
(Expert) 27 September 2011
The basic thing is right of creditor to recover his debt and present law in this regard?
RIGHT OF CREDITOR/DECREE-HOLDER IS TO REALIZE THE DEBT FROM ANY OF THE LEGAL HEIRS OF DECEASED DEBOR HOLDING PROPERTY PROVED TO HAVE BEEN OWNED BY THE DECEASED DEBTOR. So there is no illegality in recovery.
kasinath
(Querist) 27 September 2011
Pls provide citation if any
