property dispute: How to prevent sale of disputed property without your knowledge or signature – The Economic Times

Clipped from: https://economictimes.indiatimes.com/wealth/legal/will/how-to-prevent-sale-of-disputed-property-without-your-knowledge-or-signature/articleshow/90425730.cms

SynopsisA lot of foul play happens due to disputes related to property. It may happen that property is sold without your knowledge. This makes it difficult for you to get your share of the money. As per legal experts, there are two legal steps a claimant can take to protect their interest in the disputed property.

Property – it is probably one of the main reasons for many family feuds. In fact, how to resolve or handle property disputes form a large chunk of queries that readers send to the ET Wealth team. Some property disputes can turn so ugly that one or more siblings (claiming to be rightful legal heirs) gang up and sell the property without the other’s knowledge. Once the property is sold without your knowledge, then it might be a long wait for you to get your share of the money from your siblings or other legal heirs.

Is there a way to avoid such a scenario and what are the steps you can take to avoid sale of a disputed property by other claimants without your knowledge?

As per legal experts, if an individual does not want to go for a partition suit (a proceeding instituted by any of the legal heirs/claimants/individuals involved in a property dispute to get their share via court order; a long-drawn-out and costly process), then there is legal recourse that can be taken to protect his/her interests. Read on to find out more.

  • Injunction order from the court

To avoid any sort of foul play behind your back, you can get an injunction order from a court without having to file a partition suit for division of property. What this means is that you can get a stay order from the court. This order from the court would help in protecting your legal rights and ensure that the disputed property is not sold without your knowledge and/or consent.

Sonam Chandwani, Partner, KS Legal & Associates, a Mumbai-based law firm, says, “If an individual is unwilling to file a partition suit with court, then he/she can file for an injunction order from the court. An injunction is a legal and equitable remedy that compels a party to conduct or refrain from certain acts. The injunction order can be sought against the person restraining him from alienating the property in favour of any person. The transfer made in violation of an injunction confers no right, title or interest in the eyes of the law and is illegal.

She further adds, “The injunction order can be taken against either selling of a property (by any other individual), sibling or both i.e., selling of property as well as against siblings. Injunction order from the court will stop any other claimant (siblings in above case) from taking a particular action (selling property in above case).

Who can get injunction order from court?
Anyone can request for an injunction order from the court, provided they have legal right over the property. One must have proof of being a legal heir of the said disputed property –legal heir certificate/letter of administration etc. can be used as proof.

What is the cost and process of getting injunction order?
Getting an injunction order is more cost-effective compared to filing a partition suit for a disputed property as the charges for getting an injunction order are minimal.

Chandwani says, “The process of getting injunction order is fairly simple. An application has to be filed by the individual in the court requesting the grant of injunction order against the selling of the (disputed) property. The court will examine the facts for the same and may grant injunction order to the individual/claimant. The cost of getting injunction order involves lawyer’s fees, court fees which is bare minimum (say Rs 1,000 in Mumbai) and documentation charges. Do note that court fees vary from state to state depending on where the property is located. However, it is still quite minimal.”

Filing a partition suit is an expensive and long-drawn process. This is because these types of cases take a long time to get resolved and involve lawyer’s fees for every court hearing and consultations during the court case. However, getting an injunction order is cheaper as it is one-time process that involves stopping other claimants/legal heirs from selling the property. Further, a stay order not only protects your legal rights, but it will also push the other legal heirs to resolve the issue without fighting it out in court.

  • File a Lis Pendens at sub-registrar’s office

Once the request for an injunction order is submitted in the court, there is another legal step the individual must take and that is to file a Lis Pendens at the sub-registrar’s office.

Avikshit Moral, Partner at IndusLaw – a law firm specialising in real estate matters says, “To avoid the sale of disputed property during pendency of an injunction order/partition suit an individual can register a notice of Lis Pendens under the law. Legally, the concept of Lis Pendens emanates from the Transfer of Property Act. It offers protection to legal heir(s) against the disputed property being sold behind their back. Using this, an individual can file a notice with the concerned sub-registrar office. Once the notice is registered with the sub-registrar office, it will be deemed as a notice to any prospective buyer that the property is disputed. If the buyer still goes ahead and buys the property, then the individual who has filed the notice of Lis Pendens can move the court. In such a scenario, the new buyer’s right will be subject to the outcome of the suit related to the property. If the court rules in favor of the filer of the Lis Pendens notice i.e., you then the buyer loses his right to the disputed property.”

The sub-registrar’s office is a government office where documents related to property transactions (i.e., buying, selling, renting) are recorded and registration fees are to be paid. The buyer and seller are required to register the property at the sub-registrar’s office to legally make the buyer – the owner of the property. By virtue of registration of the notice of Lis Pendens, such notice becomes a public document and is deemed to be in public knowledge.

Who can file Lis Pendens?
Anyone having a legal claim to the disputed property can file a Lis Pendens notice with the sub-registrar’s office. Moral says, “Anyone who has initiated proceedings before a competent court for claiming rights in respect of a property can file a notice of Lis Pendens with the sub-registrar office.”

Procedure of filing notice under Lis Pendens
Generally, the party who wants to file the notice of Lis Pendens will have to draft the notice together with details of the court proceedings that have been initiated/are ongoing and also, if needed, annex the supporting documents relating to such proceedings. The entire set can then be registered with the sub-registrar within whose jurisdiction the property is located.

Cost of filing notice under Lis Pendens
Here too, filing a notice with a sub-registrar would be cheaper as compared to filing a partition lawsuit for a disputed property. Moral says, “A notice of Lis Pendens is a very simple document that brings out the details of the proceedings and serves as a notice to anyone who intends to deal with such disputed property. So basically, if one of the heirs /claimants tries to sell the disputed property, anyone who wants to purchase the property will be deemed to be having notice of such dispute.”

The cost of filing the above notice includes the following:

  • Lawyer’s fees
  • Registration fees vary from state to state. For instance, in the city of Mumbai, registration fees for filing Lis pendens is Rs 1,000.
  • Documentation charges for drafting the notice of Lis Pendens etc.
  • Non-legal step one must take

As per legal experts, to strengthen the case, an individual may also consider issuing public notices in reputed newspapers about the pending dispute and that no one should buy the property as it is disputed. Issuing a notice in a reputed newspaper to the public at large gives you additional protection, say experts.

(This article does not constitute legal advice. It is based on opinions and answers obtained to specific questions from different legal experts. Case-specific legal advice should be obtained independently before taking any action.)

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