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

My father, Mr. Ramesh Sharma, is the eldest of three brothers. He faced family opposition when he chose to have a love marriage with my mother, Mrs. Priya Sharma, about 25 years ago. His two younger brothers, Suresh and Dinesh, had arranged marriages. Due to the family discord, my father, who is a Non-Resident Indian (NRI) living abroad, had no contact with his family for over a decade. The communication only resumed when his father, my grandfather Mr. Om Prakash Sharma, was on his deathbed.

The family, including his own father, had led my father to believe he would be disinherited. We were prepared for this and expected nothing. However, after my grandfather’s passing, it was revealed that his will left his property in equal shares to all three sons. Around 2012, all three brothers executed a joint General Power of Attorney (POA), but my father was unaware of the will or his inheritance at that time.

The core issue now is that my uncle, Suresh Sharma, has misused this joint POA. He has fraudulently transferred a piece of land, which was part of my father’s inheritance, into his own son’s (my cousin, Vikram’s) name. Furthermore, a separate plot of land that my grandfather had specifically willed to my mother has also been illicitly transferred to the same nephew, Vikram.

My father still holds some land in his name in our hometown in Uttar Pradesh, which he wishes to sell. However, Suresh is constantly harassing him, demanding he sign a new POA and an agreement to sell, while refusing to cancel the old 2012 POA. The harassment involves daily abusive phone calls to my parents, causing them immense mental distress. We have phone logs to prove this. They make derogatory remarks, belittling my father for respecting his wife and looking down on me for being a woman. They claim my mother has no rights as she “brought nothing” to the family, completely ignoring my father’s birthright.

This long-standing family drama has become unbearable. My cousin, Vikram, who is well-educated, has also been sending manipulative messages to my father from my uncle’s phone. We are ready to travel to India to resolve this. At this stage, we would prefer the government to take the assets in taxes rather than let my uncle and cousin wrongfully seize everything.

Advice in such cases

Navigating family property disputes, especially when they involve fraudulent actions and harassment from abroad, requires a strategic and cautious approach. Here are the immediate steps you should consider:

• Revoke the Power of Attorney (POA): The first and most critical step is to immediately revoke the General Power of Attorney given in 2012. This should be done by executing a Deed of Revocation and publishing a notice in local newspapers in the area where the property is located. This prevents any further misuse of the POA.
• Gather All Documentation: Collect all possible documents, including a copy of the grandfather’s will, any existing property papers (sale deeds, land records), a copy of the 2012 POA, and records of the fraudulent transfers (if you can obtain them from the sub-registrar’s office).
• File a Police Complaint (FIR): The acts of transferring property using a POA for personal gain, coupled with constant harassment and intimidation, constitute criminal offenses. An FIR can be filed against the brother and nephew for criminal breach of trust, cheating, forgery, and criminal intimidation.
• File a Civil Suit: A civil suit for partition, declaration of title, and cancellation of the fraudulent sale deeds is necessary. This suit will legally establish your father’s rightful share and nullify the illegal transfers made by the brother. An injunction can also be sought to prevent them from selling or creating any third-party rights on the remaining properties.
• 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 case involves aspects of both civil and criminal law under the new Indian legal framework:

• Bharatiya Nyaya Sanhita, 2023 (BNS):
  • Section 316 (Criminal breach of trust): The brother, being entrusted with the POA, has dishonestly misappropriated the property for his own benefit.
  • Section 318 (Cheating and dishonestly inducing delivery of property): Misleading the father and fraudulently getting property transferred.
  • Section 335 (Forgery): If any document was forged to facilitate the transfer, this section applies.
  • Section 351 (Criminal Intimidation): The constant harassment, threats, and abusive calls fall under this section.
• The Indian Succession Act, 1925: Governs the execution and enforcement of the grandfather’s will.
• The Transfer of Property Act, 1882: Deals with the legality of the property transfers. The fraudulent transfers can be challenged under this Act.
• The Powers of Attorney Act, 1882: This act governs the creation and revocation of the POA. The misuse of a POA is a direct violation of the fiduciary duty it implies.

If you are the complainant

If you are in the position of the father, Mr. Sharma, here is a course of action:

• Do Not Sign Anything: Cease all communication where you are pressured. Do not sign any new POA, agreement to sell, or any other document presented by the opposing family members.
• Travel to India: It is highly advisable to travel to India to handle these matters personally. Legal processes are more effective when you are present to sign documents, meet with your lawyer, and appear before authorities if required.
• Hire a Reputable Lawyer: Engage a lawyer specializing in property and criminal law in the jurisdiction where the property is located.
• Execute a New, Specific POA: If you cannot stay in India for the entire duration of the legal proceedings, you can execute a new, specific Power of Attorney in favour of a trusted individual (like your lawyer or a trusted relative from your wife’s side) to represent you in court and before government authorities. This POA should have very limited and specific powers.
• 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

If you are the daughter or wife in this situation, supporting the primary victim (the father) is key:

• Document Everything: Keep a detailed log of all harassment. Record phone calls (where legally permissible), save text messages and emails, and note down dates, times, and the nature of the abuse. This evidence is crucial for the criminal complaint.
• Provide Emotional Support: Family disputes are emotionally draining. Your support is vital for your father to withstand the pressure and pursue the legal battle.
• Coordinate with the Lawyer: Act as a point of contact with the lawyer in India. Help in organizing documents and communicating updates to your father.
• 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

Initially, the police might be hesitant to file an FIR, often dismissing such disputes as “civil matters” or “family disputes.” They may suggest you go to court first. However, you must be firm and present your case clearly, highlighting the criminal elements involved: criminal breach of trust, fraud, and, most importantly, the criminal intimidation and harassment. Providing clear evidence, such as phone logs and threatening messages, can compel them to register an FIR under the relevant sections of the Bharatiya Nyaya Sanhita (BNS). A lawyer’s intervention is often effective in ensuring the police take appropriate action.

FAQs people normally have

Can we cancel a POA from abroad?
Yes, a POA can be revoked from abroad by executing a Deed of Revocation, getting it notarized and apostilled in your country of residence, and then sending it to India for registration and publication.

What if the property has already been sold to a third party?
If the property has been sold, you will have to include the third-party buyer in your civil suit. The court can cancel the sale if it is proven that the transaction was fraudulent and the buyer was not a bona fide purchaser.

Will the abusive brother be arrested?
Arrest depends on the severity of the offenses and the discretion of the investigating officer and the court. In cases involving fraud and intimidation, arrest is a possibility, especially if the accused are not cooperating with the investigation.

What evidence is required?

• Proof of Inheritance: A certified copy of the grandfather’s will.
• Property Documents: Title deeds, land records (Khata/Khasra), and mutation records in the father’s name.
• Power of Attorney: The original or a copy of the 2012 General POA.
• Proof of Fraud: Certified copies of the new sale deeds executed by the brother in favour of his son, which can be obtained from the Sub-Registrar’s Office.
• Evidence of Harassment: Phone call logs, recordings of threatening conversations, text messages, and emails.
• Identity Proofs: Passports, OCI cards, and other identification for your father and mother.

How long will the investigation take?

Legal proceedings in India can be time-consuming. The criminal investigation by the police may take several months. The civil suit for property partition and cancellation of deeds can take several years to reach a final resolution, passing through various stages like pleadings, evidence, and arguments. However, filing an FIR and a civil suit with a plea for an injunction can provide immediate relief by stopping any further illegal activities and putting legal pressure on the opposing party, which often leads to a faster settlement out of court.

Advocate Sudhir Rao, Supreme Court of India