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

We often encounter heart-wrenching stories of family disputes over ancestral property. A common scenario involves an elderly parent, Mr. Anand Sharma, who is around 90 years old but still mentally alert, though susceptible to influence. He owns a family home and significant agricultural land in the district of Alipur, Madhya Pradesh. He has two sons, Mr. Kamal Sharma (the elder) and Mr. Vimal Sharma (the younger).

The core of the conflict is that Vimal allegedly desires the entire estate for himself. It is suspected that he has already covertly arranged for the family home to be transferred into his name. Furthermore, there are allegations that Vimal has been misappropriating his father’s pension for several years. Kamal is aware of these activities but feels powerless, as his father, Mr. Anand Sharma, seems to show a clear preference for Vimal.

Kamal has made several attempts to persuade his father to formally partition the property to prevent future conflicts, but Mr. Anand Sharma has consistently avoided taking any decisive action. Recently, under the guidance of local community elders, Mr. Anand Sharma agreed to execute a gift deed for the agricultural land, dividing it equally between Kamal and Vimal. However, a complication has arisen: Vimal allegedly coerced his father into writing a note claiming that this gift deed was signed under pressure from Kamal. The whereabouts of this note are unknown to Kamal and his family, causing significant concern about its potential legal ramifications.

Advice in such cases

Navigating such a complex family and legal situation requires a strategic and informed approach. The primary goal is to protect your rightful share in the ancestral property and challenge any transactions made under undue influence or fraud.

• 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 resolve in 7-10 days.
• The note claiming coercion against the gift deed can be challenged in court. The burden of proof would be on Vimal to establish that the gift was not made voluntarily. The circumstances, witness testimonies, and the father’s own state of mind will be crucial.
• If the house was ancestral property, it cannot be transferred entirely to one son without the consent of other legal heirs. A transfer made through fraudulent means or undue influence can be legally challenged and set aside by a court.
• To ensure a fair division of the agricultural land, and to prevent future disputes, a suit for partition should be filed in the appropriate civil court. This will lead to a court-mandated division of the property by metes and bounds.

Applicable Sections of Law

These disputes are primarily governed by civil laws, but criminal law can also be invoked depending on the actions of the parties.

• The Hindu Succession Act, 1956: This act governs the succession and inheritance of property. For ancestral property, all coparceners (in this case, the father and his two sons) have a right by birth. A father cannot unilaterally give away the entire ancestral property to one son to the detriment of the other.
• The Transfer of Property Act, 1882: This act deals with transfers like gift deeds. Section 126 allows for a gift to be revoked if it was made under coercion or undue influence.
• The Maintenance and Welfare of Parents and Senior Citizens Act, 2007: This law allows a senior citizen to reclaim property gifted or transferred if the transferee fails to provide for their basic needs and maintenance. It can be a tool to reverse transfers made under false pretenses.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If there is evidence of cheating, forgery, criminal breach of trust (Section 316 of BNS) regarding the pension, or extortion (Section 326 of BNS) to sign documents, a criminal complaint can be filed.

If you are the complainant

If you are in Kamal’s position, you are the one seeking justice and a fair share. Your actions should be proactive and legally sound.

• File a Suit for Partition: Immediately file a suit in the civil court for the partition of all ancestral properties, including the house and the farmland. This will bring all assets under judicial scrutiny.
• Challenge the Transfer of the House: In the same partition suit, or through a separate suit for cancellation of the deed, challenge the transfer of the house to Vimal. You will need to plead that the transfer was fraudulent and executed by exercising undue influence on an elderly person.
• Seek an Injunction: Request the court for an interim injunction to prevent Vimal from selling, mortgaging, or creating any third-party rights over the disputed properties while the case is pending.
• Gather Evidence: Collect all possible evidence, such as property records, witness statements from villagers who advised the gift deed, and any proof of your father’s financial dependence on Vimal.

If you are the victim

If you are the elderly parent, Mr. Anand Sharma, who has been manipulated, the law provides you with remedies to correct the injustice done to you and your other children.

• Revoke the Transfer: You can file a petition to have the transfer of the house set aside on grounds of fraud and undue influence.
• Utilize the Senior Citizens Act: You can approach the Maintenance Tribunal under the Senior Citizens Act to declare the transfer void if Vimal is failing to maintain you or if the transfer was made on the condition of your care.
• Criminal Complaint: You can file a police complaint against Vimal for siphoning off your pension, which constitutes a criminal breach of trust.

How the police behave in such cases

In property disputes among family members, the police are often hesitant to intervene. They typically view these matters as “civil in nature” and will advise the parties to approach the civil court. However, if there are elements of a cognizable criminal offense, they are obligated to act. If Vimal has been violent or has issued threats, a complaint can be filed, and the police may take preventive action. For financial fraud like taking the pension, or for forgery of documents, the police are more likely to register an FIR under the relevant sections of the Bharatiya Nyaya Sanhita (BNS) after a preliminary inquiry.

FAQs people normally have

People facing such situations often have pressing questions about the practical aspects of the legal process.

What evidence is required?

Strong evidence is the backbone of any successful legal case. For a property dispute like this, you would need:

• Property Documents: Copies of all relevant deeds, land records (Khasra/Khatauni), and property tax receipts.
• Proof of Ancestral Nature: Documents showing how the property was acquired by previous generations.
• Witness Testimony: Statements from neutral parties like village elders, neighbours, or relatives who are aware of the family dynamics and the circumstances of the transfers.
• The Coercion Note: While its existence is a threat, if found, it can also be used to prove Vimal’s malicious intent.
• Medical Records: Documents pertaining to the father’s physical and mental health can be relevant to establish his vulnerability to undue influence.
• Financial Records: Bank statements to prove the siphoning of pension funds.

How long will the investigation take?

The timeline for resolving such disputes can be lengthy. A police investigation into a criminal complaint might take a few months. However, a civil suit for partition and cancellation of deeds is a much longer process. In the Indian judicial system, such cases can take several years, often more than a decade, to reach a final verdict, especially if the opposing party uses delay tactics. The duration depends on the complexity of the case, the evidence presented, and the workload of the specific court.

Advocate Sudhir Rao, Supreme Court of India