Hi..
My query is related to property litigation case…
The property (Agricultural Lands) belongs to my mother. She left the house in the year 2000 without informing anybody. We searched her all around but could not find her. But we gave a paper advertisement of her missing in the year 2005 and police complaint in the year 2007.In the police complaint I mentioned that she is missing form 2000. The FIR was given on April 2007.
By brother refused to give me share of my mother’s property. After waiting for 7 long years I filed a petition in the District court for the partition of the property which was totally in the possession of my brother. He with a bad intention not to give my share of property responded back saying my mother is very much alive and she was with him up to 2006 and left the house only in the year 2006 informing that she is going to some pilgrimage places and asking him not to search for her. Also he stated that my mother has written a WILL for the entire property in name of her grandson (my brother’s only son) in the year 1996. We made his son a third party and asked him to produce the WILL in the court. He said that since her grandmother is alive he will produce the WILL only on confirmation of her death stating there is no point of producing the WILL when she is alive and that the WILL cannot be executed until she is alive.
But all these are absolute false allegations. The actual facts are she left house in the year 2000 from then on her whereabouts are not known. And there was no WILL at all on anyone’s name.
The mistake I did was not reporting her missing on time i.e. in 2000. Instead I gave a complaint in April 2007 stating of her missing from the year 2000. But FIR was given on April 2007. I have not given complaint in 2000 since my brother told that he has given complaint to the police in 2000 which I came to know is a lie.
Under these circumstances,
Ø What way should I need to proceed to prove my mother’s death presumption under section 108 of evidence act and get my property share since my brother is always trying to prove that she is alive by relying on section 107 just to dodge the proceeding so that I can drop off for claiming my property share which is under his possession.
Ø Since she is missing and the presumption of death is yet to prove, will the property be under his possession until death presumption of my mother is proved. Is there any legal way to take over the possession of the property from him until the facts are proved. Can I also plead the court to provide enjoyment rights to half of my mother’s property .
Ø Should I need to wait up to 2014 to ask for partition of my share of property since I gave police complaint in 2007.
Ø If my brother keeps saying that my mother is alive and she is visiting his house rarely even after 2006 or after that. He is producing some oral (relatives/friends favour to him) evidences by making them say that they have seen my mother even after 2006 just to have section 107 in his favour. Under these situations what should I do to establish presumption of death of my mother who is really missing.
Please guide/help me in this matter. Please also help me with some citations related/favouring to my case. Thanks a lot in advance for your precious time.
