How to Recover Father’s Property Sold by a Relative Without Consent

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Adv Sudhir Rao
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How to Recover Father's Property Sold by a Relative Without Consent

If you are stuck in such a situation, here is what to do.

This is a distressing situation that unfortunately occurs in many families. Let’s consider a common scenario: Mr. Sharma, an elderly gentleman, is not of sound mind and has been under the care of his nephew, Mr. Verma, for the past year. Mr. Sharma’s only son, Mr. Rohan, lives in another city and, due to complex family dynamics, has not been closely involved. Mr. Rohan recently discovered that his nephew, Mr. Verma, has sold one of his father’s properties, rented out another, and has taken control of all his father’s fixed deposits and bank accounts. As the sole legal heir, Mr. Rohan is seeking to understand his legal options to undo the fraudulent transactions, protect his father, and recover the misappropriated assets.

Advice in such cases

When a person who is not of sound mind has their property misappropriated by a caregiver or relative, the legal heir can and should take immediate action. The primary goals are to secure the well-being of the vulnerable parent and to nullify any fraudulent transactions.

  • Undoing the Sale: Yes, a sale of property conducted by taking advantage of a person of unsound mind can be challenged and undone. A civil suit for ‘Declaration and Cancellation of Sale Deed’ can be filed in the competent civil court. The basis for this suit would be that the transaction is voidable due to fraud, undue influence, and the fact that the owner (the father) lacked the mental capacity to give valid consent for the sale.
  • Securing the Parent’s Well-being: The first priority should be to remove the father from the care of the deceitful relative. You can approach the Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. This tribunal has the power to issue orders for the protection of a senior citizen’s life and property.
  • Legal Action vs. Confrontation: While a confrontation might seem like a direct approach, it is unlikely to yield results with a person who has already committed fraud. It could also lead to the destruction of evidence. Proceeding legally is the most prudent course of action. This creates a formal record and engages the state machinery to investigate and provide remedies.
  • Guardianship: Since the father is not in a position to make decisions, you can file a petition in the District Court to be appointed as the legal guardian of your father and his property. This will give you the legal authority to manage his affairs, operate his bank accounts, and take legal action on his behalf.

Applicable Sections of Law

A multi-pronged legal strategy involving both criminal and civil law is advisable.

  • Bharatiya Nyaya Sanhita, 2023 (BNS): A criminal complaint (FIR) can be filed against the relative under these sections:
    • Section 316 of BNS: For Criminal Breach of Trust. The relative was entrusted with the care of the father and his property and has dishonestly misappropriated it.
    • Section 318 of BNS: For Cheating and Dishonestly Inducing Delivery of Property.
    • Section 334 of BNS: For Forgery, if the relative forged the father’s signatures on any documents like cheques, property papers, or bank forms.
  • Civil Laws:
    • Specific Relief Act, 1963: Section 31 of this Act allows for the cancellation of a written instrument (like a sale deed) if it is void or voidable.
    • Maintenance and Welfare of Parents and Senior Citizens Act, 2007: This special law provides for the protection of life and property of senior citizens and allows for the voiding of property transfers made under coercion or undue influence.

If you are the complainant

As the concerned son or daughter, you are the complainant acting on behalf of your vulnerable parent. Here are the steps to follow:

  • Consult with a Lawyer: The very basic and important step to start is to talk to a lawyer/advocate. You should not hesitate in paying his consultation fee, which might be in the range of Rs. 10,000 to Rs. 50,000 depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.
  • Gather Initial Evidence: Collect copies of your father’s property documents, his identity proofs, and any information you have about the fraudulent sale or bank withdrawals.
  • File a Police Complaint: With the help of your lawyer, draft a detailed complaint and file an FIR against the relative at the local police station under the relevant sections of the BNS.
  • File a Civil Suit: Simultaneously, file a civil suit in the appropriate court seeking the cancellation of the sale deed. In the same suit, you can ask for an injunction to prevent the relative from dealing with any other properties of your father.
  • Approach the Senior Citizens Tribunal: File an application before the Maintenance Tribunal to secure your father’s immediate safety and to get an order protecting his other assets.
How to Recover Father's Property Sold by a Relative Without Consent

If you are the victim

The victim, in this case, is the elderly father who is not of sound mind. Since he cannot act for himself, the legal heir (son/daughter) must act on his behalf. All legal proceedings will be initiated in the father’s name through his legal heir. The court may also appoint a ‘next friend’ or guardian for the purpose of the litigation to ensure the victim’s interests are protected throughout the legal process.

How the police behave in such cases

Initially, the police might be hesitant to register an FIR, often mischaracterizing such cases as purely civil or family disputes. It is crucial to be persistent. Having a lawyer accompany you can be very effective. Your complaint should clearly articulate the criminal elements—fraud, breach of trust, and forgery—rather than just a property dispute. Once an FIR is registered, the police are mandated under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to investigate the matter, which includes collecting documentary evidence, recording statements, and examining the financial trail.

FAQs people normally have

How to Recover Father's Property Sold by a Relative Without Consent

What evidence is required?

Strong evidence is key to winning such a case. The most crucial pieces of evidence include:

  • Medical Records: Documents from a certified medical practitioner or hospital proving the father’s state of unsound mind during the period the transactions took place.
  • Property Documents: The original title deed in your father’s name and a copy of the fraudulent sale deed.
  • Bank Records: Bank statements of your father showing the withdrawal of funds from FDs and other accounts. An application can be moved in court to get these details directly from the bank.
  • Witness Testimony: Statements from neighbours, other family members, or doctors who can attest to your father’s mental condition and the relative’s control over him.

How long will the investigation take?

The timeline can vary:

  • Police Investigation: Under the BNSS, the police investigation for the FIR should ideally be completed within 90 days, but complex financial frauds can sometimes take longer.
  • Civil Case: The civil suit for cancellation of the sale deed is a lengthy process and can take several years to conclude, moving through different stages of the court system. However, the court can grant interim relief, such as an injunction, early in the case.
  • Senior Citizens Tribunal: Proceedings under the Senior Citizens Act are designed to be swift, and a decision is often reached within a few months.

Advocate Sudhir Rao, Supreme Court of India

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