Anonymous
Asked September 18, 2016

Share relinquished by the sister

  • 1 Answer
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 I am Hindu, my mother purchased property in 1973, After her death in 31st Dec 2003, my father, my elder Sister, my Elder Brother and I are the legal heirs, as per the certificate. In 2004 in presence of my father, sister made Affidavit in front joint director of land records saying no need of her name to be entered in the property, and same has been removed. In 2013 my father died and only my elder brother and I are left in the property name. In 2015 my sister signed registered release deed and released 1/3rd share (Sub registrar office) from the property. After that as we (both brothers) are developing property now she has filed a case in court for 1/3rd share. She is asking for null and void of registered release deed of worth Rs. 1.5cr, Under Karnataka law fee Act we are asking court to take fee from her. Meanwhile court granted injection under 39 rule 1&2 cpc. Please help me.

Answer 1

Firstly, the role of an affidavit is a written sworn statement of fact voluntarily made by a person under an oath or affirmation administered by a person authorized to do so by law and any court or magistrate or notary appointed under Notaries act, 1952 or any officer appointed on behalf of the High Court or any court which the State Government generally has empowered in this behalf, can administer the oath of the deponent.[1] Affidavit is a piece of evidence in your case.

Now you can file for an order for discharge of injunction.[2] If you had applied in the Civil court you can file for discharge of injuction in district court, if it was in district court then it needs to be made in High Court. If it was in High Court Single bench, you need to file LPA before a 2-judge bench for the removal of injunctions. You need to prove that a gross injustice has been done towards you by reframing you from developing anything on the property and putting an injunction. But you can apply this order only if it is an ex parte decree. If the order has been made after giving you an opportunity to be heard the discharge, variation or setting aside can be done only once there are necessitated change in the circumstances, or unless the Court is satisfied that the order has caused under hardship to that party. Otherwise you can file a review petition under section 114 read with order 47 rule 1 of Civil Procedure code, 1908.

Section 114 of the Code of Civil Procedure (in short CPC) provides for a substantive power of review by a civil court and consequently by the appellate courts. Section 114 of the code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47, Rule 1 of the CPC.

The circumstances when review lies are

(a) cases in which appeal lies but not preferred, 

(b) cases in which no appeal lies,

The grounds are

(i) discovery of new and important matter or evidence, or 

(ii) mistake or error apparent on the face of the record, or 

(iii) any other sufficient reason.

 

Now as per my understanding, your sister has relinquished her right over the property and gave her 25% of the share to your father. So now you and your brother had 25- 25% and your father had 50%. After the death of your father, you three will have equal rights over his 50%. So now in 2015, she has released her 16.67% right over that 50% share of your father. And she is questioning the later and not the former one, in 2004.

So now the only recourse you have is that you disregard all the allegations put up by you sister. Nowhere it has been provided, that a property or share relinquished can be cancelled, i.e. the registered released deed can’t be declared void, until and unless he proves there was undue influence, coercion or any sort of threatening.

 

 

 

[1] Section 139 of Civil Procedure code, 1908

[2] Order XXXIX, Rule 4 of Civil Procedure code, 1908

Agree Comment 0 Agrees about 4 years ago

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