Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Rishad (NA)     24 March 2018

Validity of final registered release deed with wrong name of one of the releasor

My father had an ancestral property in Mangalore (Udupi). My Father had two brothers (one elder and one younger) and five sisters. The property was initially in the name of my father’s paternal grand-mother.

In 1991 my father’s elder brother took the initiative of getting the property registered in the name of my father’s younger brother (taking the requisite power of attorney in his name from my father and other claimants who had a right in the property to eventually release the entire right in the property in the name of the younger brother). The understanding among the three brothers at that point of time was that the property will be partioned among the three of them later on, as the priority then was to get the property registered in the name of one among them. Eventually it was decided to get the property registered in the name of younger brother. As my father was working in gulf at that point of time and basis the understanding they had of doing the partition later on, my father issued a special power of attorney to the elder brother authorizing him to release my father’s entire share in the property in the name of younger brother.

Basis the special power of attorney, the elder brother released everyone’s share (including my father’s share) in the name of the younger brother by executing a Deed of Release. The entire property currently stands in the name of my father’s younger brother in the land records(RTC).

However while making the registered Deed of Release an error/mistake was made. My mother’s name was wrongly mentioned in the place of my father in the Deed of Release. However reference to the special power of attorney issued by my father is correctly mentioned. This error/mistake is still not rectified in Deed of Release and the land records continue to have this erroneous Deed of Release.

My father passed away in 2004. In 2014 I approached both my uncles to give us our fathers share in the property. Both my uncles (my father’s elder and younger brothers) agreed at that point of time, but my younger uncle is now telling that he will sell a portion of the property and during the registration of that sale, he will simultaneously release and register my father’s share in our name as well. But nothing has moved in the past three years.

Questions

Is the Deed of Release valid as my father’s name is not mentioned therein (my mother’s name is erroneously mentioned in place of my father)?

Is the entire Deed of Release Invalid or only the erroneous portion is invalid?

Do the other claimnants get a right to claim their share in the property?

Can my uncle sell this property as he is the legal owner as per the land records?

Can the sale be challenged later on the basis of the error/mistake in the Deed of Release?

Can I successfully claim my father’s share knowing the error/mistake in the Deed of Release and also that the error/mistake is not yet rectified?

Is my claim legally sustainable?



Learning

 2 Replies

Yusuf Rampurawala   03 April 2018

the release deed will be read in its context. so even if there is error in your dad's name but there is a mention of SPA granted by your father to his brother, then the error will be of no consequence. it is quite evident that your mother cannot release the share in your father's property since neither is your mother the owner of that share or has any POA from your dad in her name. 

so in effect the release deed in favour of the younger brother of your father still stands. also consider the fact that the name of your uncle is already entered in the land records without any challenge by your father. 

so yes your uncle can sell the property on basis of the release deed which was executed in his favour

your father will have to file a suit against his younger brother basis the agreement between the brothers that the property will be partitioned between the brothers after the same is transferred to the name of younder brother. your dad will need all documentary proof in support of such a claim

 

1 Like

Rishad (NA)     03 April 2018

Thank you very much for you response Yousuf.

My father passed away in 2004, however Considering the fact that the younger uncle is not aware that I know so much about the current legal ownership status of the land (as I myself retrieved the relevant land records and other supporting documents and they don’t know that I am aware of the Release deed and SPA), Can I take legal course to claim my father’s share in the property from the younger uncle hiding the fact that I know about the release deed and SPA and later challenge the release deed once it is evidenced (brought as evidence) during the legal course, as my father’s name is not mentioned in the release deed and the error is not yet rectified.

Secondly when the SPA is brought as evidence can the existence of the same be challenged on the grounds that my father had never mentioned to us about its existence or on the grounds of being fraudulently taken as the intent of partition in the future existed but not documented though.

My elder uncle to whom the SPA was given by my father is also ready to testify in the court of law about the existence of the intent of doing the partition later on. Will his testimony help support the case.

Very much Appreciate your response on this.


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