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

More than a decade ago, Mr. Alok Sharma decided to transfer his assets, including some ancestral land in the city of Rampur, to his wife, Mrs. Priya Sharma. The process was handled through their legal counsel and seemed complete. However, recently, while preparing to sell a piece of the land, the family reviewed the property documents again. They discovered that a specific plot number was inadvertently omitted during the original transfer. Legally, this small portion of the property remains registered in Mr. Alok Sharma’s name.

The situation is complicated by the fact that Mr. Sharma has since been diagnosed with a severe neurodegenerative condition. He now lacks the cognitive ability to understand legal documents or provide valid consent for any transaction. The family is in a predicament: they need to sell this remaining plot but cannot proceed without a legal way to transfer the ownership from Mr. Sharma’s name to Mrs. Sharma’s, given his current mental state.

Advice in such cases

When a property owner is unable to make decisions due to mental incapacity, they cannot legally sign a sale deed or gift deed. Any such contract would be void. The family must seek a legal remedy through the courts.

• Appoint a Guardian: The primary legal route is to file a petition in the competent District Court to appoint a guardian for the person with the disability and their property. The court can authorize this guardian to manage or sell the property on behalf of the incapacitated individual.
• Medical Certification is Key: The entire case hinges on proving the person’s mental incapacity. You must obtain detailed medical certificates and reports from a government-recognized medical board or doctor specializing in neurology or psychiatry.
• Court’s Permission to Sell: Even after a guardian is appointed, they cannot sell the property arbitrarily. The guardian must file an application in the same court, explaining the reasons for the sale (e.g., for the medical expenses and welfare of the incapacitated person) and seek specific permission. The court will grant permission only if it is satisfied that the sale is in the best interest of the individual.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think

Applicable Sections of Law

This situation is governed by civil laws designed to protect the rights and interests of persons with disabilities.

• The Rights of Persons with Disabilities Act, 2016: This is the key legislation. It contains provisions for appointing a “limited guardian” or a “plenary guardian” to make legal and financial decisions for a person with a disability who is unable to do so themselves. The application is typically made to the District Court.
• The Mental Healthcare Act, 2017: While this Act primarily deals with the treatment and rights of persons with mental illness, it reinforces the principles of protecting their rights, including property rights. It helps in establishing the legal framework for determining mental capacity.
• The Indian Contract Act, 1872: Section 11 of this Act states that only a person of “sound mind” is competent to enter into a contract. Section 12 defines what constitutes a “sound mind” for the purpose of contracting. These sections form the basis for why Mr. Sharma cannot execute a sale deed himself.

If you are the complainant

In this context, the “complainant” is the petitioner (e.g., Mrs. Priya Sharma or another close family member) who initiates the court case.

• File a Petition: You must file a petition before the competent District Court with jurisdiction over the area where the person resides or the property is located.
• State all Facts Clearly: The petition must clearly state the relationship with the incapacitated person, describe their medical condition, detail the property in question, and explain why a guardianship and subsequent sale are necessary.
• Submit All Evidence: Attach all supporting documents, especially the medical records proving incapacity and the property ownership documents.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think

If you are the victim

The law treats the person with the cognitive disability as the “victim” or the person whose interests need the utmost protection.

• Court as Protector: The court acts as the ultimate guardian of the interests of the incapacitated person. Its primary duty is to ensure the person is not being exploited.
• Best Interest Principle: Any decision made, whether appointing a guardian or permitting a sale, will be based strictly on what is best for the welfare of the person with the disability. The court will scrutinize the need for the sale and how the proceeds will be used for their benefit.
• Right to be Heard: The court will issue notices to all close relatives to ensure no one has any objections. If there are objections, the court will hear all sides before making a decision.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is 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 much faster than you think

How the police behave in such cases

The police have no role in this process as it is a purely civil matter. Their involvement would only be required if a criminal complaint is filed. For instance, if a third party or another relative alleges that the family members are trying to fraudulently grab the property of the vulnerable person, they could file a complaint of cheating or criminal breach of trust. In that scenario, the police would investigate the criminal allegation, but they do not play a part in the guardianship or property transfer proceedings in the civil court.

FAQs people normally have

Can we use an old Power of Attorney?
No. A Power of Attorney (PoA) is a contract of agency. It automatically becomes invalid the moment the principal (the person who gave the PoA) becomes of unsound mind and loses their contractual capacity.

Who can be appointed as a guardian?
The court usually prefers to appoint the spouse or adult children. However, the court will assess the suitability of the proposed guardian and ensure there is no conflict of interest. The court’s decision is based on who can best manage the affairs for the benefit of the incapacitated person.

What if another family member objects to the sale?
If another legal heir or close relative objects, they can present their arguments and evidence in court. The court will hear their objections and decide the matter on its merits, always prioritizing the welfare of the person with the disability.

What evidence is required?

To successfully obtain a guardianship order and permission to sell, you will need comprehensive evidence:

• Medical Evidence: This is the most critical piece of evidence. A certificate of disability from a competent medical authority, detailed reports from treating doctors, and neurological assessments that clearly state the person’s lack of cognitive capacity to make legal and financial decisions.
• Property Documents: The original Title Deed, sale deed, mutation records, and survey map that show the property is still in the name of the incapacitated person.
• Identity and Relationship Proof: Aadhaar cards, PAN cards, and other documents to prove the identity of the petitioner and their relationship with the person with the disability (e.g., Marriage Certificate, Birth Certificate).
• Affidavit: A sworn affidavit from the petitioner explaining the entire history of the case, the need for the sale, and a declaration that the sale proceeds will be used exclusively for the care and maintenance of the incapacitated person.

How long will the investigation take?

This is a court procedure, not a police investigation. The timeline can vary significantly based on several factors. The process involves filing the petition, the court serving notices to interested parties, hearings, and the final order. If the case is straightforward and uncontested, it might take 6 to 12 months. However, if other relatives raise objections or the court requires additional verifications, the process can extend to over a year or more. The backlog of cases in the specific District Court will also affect the timeline.

Advocate Sudhir Rao, Supreme Court of India