My daughter got divorced from her husband recently. What kind of rights can my grandaughter exercise on her father’s assests and insurance policy?Q: Shirish KamdarI am 79 years old, and my daughter and 13-year-old granddaughter now live with me. My daughter recently got divorced and has custody of her daughter.Her ex-husband comes from a very wealthy family, and his father has substantial financial assets.Will my granddaughter have any legal rights to her father’s or grandfather’s property, money, or other assets?If my granddaughter decides to change her surname, will she still retain her legal rights to claim her inheritance? Can she also claim the proceeds of her father’s life insurance policy?
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A: Sameer Tapia and Siddhi Doshi’s responseAssuming the family is governed by Hindu law:Father’s property: While her father is alive, she has no present claim to his self-acquired property. If he dies intestate, she is a Class I heir and will have to share his estate with other applicable Class I heirs. Her parents’ divorce does not, by itself, affect that relationship or right.Grandfather’s property: If the grandfather dies intestate while her father is alive, she will not ordinarily inherit directly from the grandfather.Surname: Changing her surname does not, by itself, extinguish her rights through her father. She should retain documents evidencing the parent-child relationship.Life insurance: She has no present claim to the proceeds while her father is alive. On his death, entitlement will depend on the policy and nomination. If she is named as a nominee, her age and the policy’s provisions should also be checked.
I am unable to use the flat that I purchased through a bank auction due to a stay by the DRT. Is there a way out of this situation?Q: Ajay MalikI purchased a flat in Noida through an auction conducted by Union Bank of India while the bank was in symbolic possession of the property. After receiving the sale certificate from the bank, a stay order was issued by the Debts Recovery Tribunal (DRT), Lucknow, in a Securitisation Application (SA) filed by the borrower in 2023.I purchased the flat on July 12, 2024, unaware of the implications of the pending SA. Now, my money is stuck in this property. I neither have possession of the flat nor can I recover my money.I am currently living in a rented flat in Noida, while the borrower continues to earn rental income from the very same property.I request your guidance and assistance in resolving this matter.
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A: Chaitanya Bhandarkar’s responseAt the outset, I may clarify that the following is based solely on the facts stated by you and without reviewing the auction notice, sale certificate, DRT proceedings or stay order. Those documents are particularly important in your case.Since the borrower’s Securitisation Application was already pending before the auction took place, your immediate remedy should be within those DRT proceedings. You should apply to be impleaded as the auction purchaser and place before the DRT the fact that you are a bona fide purchaser who has paid the sale consideration and has been issued a sale certificate.You should also seek modification or vacation of the stay to the extent necessary to protect your rights and obtain possession. If the sale is ultimately upheld, the secured creditor is expected to take the steps legally available for delivery of possession.Under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, the secured creditor can also seek assistance of the District Magistrate or Chief Metropolitan Magistrate for obtaining physical possession where the statutory requirements are satisfied.The fact that the borrower is allegedly continuing to receive rent from the flat after the auction is also relevant. This should be specifically brought to the notice of the DRT, particularly if the sale certificate has already been issued and the entire purchase consideration has been paid. You may seek appropriate directions regarding possession and the rent or profits being derived from the property during the pendency of the proceedings.At the same time, you should formally call upon the Union Bank of India to clarify its position. The bank should state what steps it proposes to take to defend the auction, obtain physical possession and protect you as the auction purchaser. If the auction is ultimately set aside, you should seek refund of the entire purchase consideration with appropriate interest, subject to the auction terms and the orders passed by the DRT.I would not advise filing an independent civil suit at this stage, because the dispute concerning the SARFAESI measures and the borrower’s challenge is already before the DRT. The more effective course would be to actively participate in the existing proceedings rather than remain dependent only on the bank.In practical terms, you should immediately obtain the complete record of the pending Securitisation Application and the exact stay order, apply for impleadment as auction purchaser and seek an early hearing for protection of your investment and possession rights. You should also place on record the financial prejudice caused to you by having to pay rent elsewhere while your substantial funds remain blocked in the auction purchase.
My late husband’s brother’s son has wrongfully transferred my husband’s share in a property to his name. What action can I take?Q: Tripta GuptaI am an 84-year-old woman, an Indian citizen, currently residing in Sydney, Australia.My late husband, Baldev Raj Gupta, owned a 50% share in an ancestral property (a shop) situated in Gajsinghpur, Sri Ganganagar, Rajasthan. The remaining 50% belonged to his elder brother. My husband passed away in 1993, and his elder brother died in 2014.We recently discovered that, in 2015, my husband’s elder brother’s son fraudulently transferred my husband’s 50% share of the property into his own name. This was allegedly done by producing a false affidavit, purportedly signed by my husband in 1991, claiming that my husband had willed his share of the property to him. The signature on the affidavit is forged, and the date on which it was allegedly sworn in Gajsinghpur is also false. We were not even in India on the date the affidavit was supposedly signed.Furthermore, a false death certificate was produced, purportedly issued by the State of Victoria, Australia, despite the fact that my husband never lived or died in Australia. He lived, worked, and passed away in Papua New Guinea.My husband’s elder brother’s son has since gifted the entire shop to his eldest son. I have contacted both of them in an attempt to resolve the matter amicably, but they have refused to cooperate, insisting that their actions are legally valid and that I am free to do whatever I wish. My children have also been warned against pursuing the matter.I wish to reclaim the 50% ownership share in the shop that I believe legally devolved upon me following my husband’s death.Unfortunately, I use a wheelchair, suffer from heart problems, and have limited vision, making it impossible for me to travel to India and pursue this matter personally.I would be extremely grateful for your legal guidance and assistance in recovering my rightful share of the property.
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A: Vivek Narayan Sharma’s responseThe late Shri Baldev Raj Gupta was the owner of an undivided 50% share in the suit property, a shop situated at Gajsinghpur, Tehsil/District Sri Ganganagar, Rajasthan. He passed away in 1993 at Papua New Guinea, leaving behind his widow, and children if any as his Class I legal heirs.His 50% share passed by law to his Class I heirs (you, your children, and his mother if she was alive). The nephew has no claim through the “affidavit” because an affidavit is not a valid will, and the signature and death certificate are alleged to be forged.Limitation: It is crucial to take appropriate legal remedy immediately. Fix the exact date you discovered the fraud, because the three-year limit for fraud claims runs from the date of discovery of fraud.You will probably not get the whole 50% alone. Your children are also heirs. Either they join as co-plaintiffs or they release their shares to you in writing.Your Legal Position1. Who inherits the 50% share?
- Your husband died in 1993, so the Hindu Succession Act, 1956 applies. If there is no valid will, the share devolves on Class I heirs: widow, sons, daughters and mother. The elder brother of the deceased and his son are not heirs while Class I heirs exist.
- However, if the shop was joint family (coparcenary) property, the proviso to Section 6 of the Hindu Succession Act, 1956 (as it stood before 2005) applies. Because a Class I female heir (you) survived him, his share is treated as if a partition had happened on his death and passes by succession, not by survivorship.
- If the shop was separately held co-owned property, Section 8 applies directly.
- Either way, you and your children share 50% equally. Confirm this with your advocate after seeing the title documents.
2. Why the ‘affidavit’ does not give the nephew title
- An affidavit is not a will. A will must be signed by the testator and attested by at least two witnesses (Section 63, Indian Succession Act, 1925), and must be proved by calling an attesting witness (Section 68, Evidence Act, 1872, now the corresponding provision of the Bharatiya Sakshya Adhiniyam, 2023).
- The person who relies on a will must remove any suspicious circumstances. A document that surfaces 24 years after the alleged date, excludes the widow and children, and is backed by a false death certificate raises heavy suspicion.
- If the signature is forged, the document is void from the start.
Why the mutation and the gift deed do not help them
- A mutation entry is for tax or revenue purposes and does not create or take away ownership.
- A person cannot give a better title than they have. The gift deed passes nothing in respect of your share.
- A gift is not for value, so the son cannot claim to be a bona fide purchaser for value without notice.
Remedies 1. Civil suit: Civil court at Sri Ganganagar.Reliefs to ask for are as follows:
- Declaration for title
- Declaration that the affidavit, the mutation and the gift deed are forged and void and do not bind your share.
- Partition and separate possession of the 50% share (or declaration of joint ownership with consequential relief).
- Permanent injunction against selling, mortgaging or gifting the shop further.
- Mesne profits (rent or loss of use) for the period you were kept out.
- Interim relief: An application with the suit under Order 39 Rules 1 and 2, CPC, asking the court to stop any transfer or change in the shop’s character while the suit is pending. The doctrine of lis pendens (Section 52, Transfer of Property Act, 1882) also protects you against later buyers once the suit is filed.
Caution on form of relief: The Supreme Court has held that a person who did not sign a document can seek a declaration without having to seek cancellation.It is better to plead both a declaration and cancellation, and add the consequential relief of possession or partition, so that the suit is not defeated by the proviso to Section 34 of the Specific Relief Act.2. Criminal complaintOffences: Forgery, forgery for cheating, using a forged document as genuine, cheating, and conspiracy under BNSS.A written complaint to the Superintendent of Police, Sri Ganganagar, with copies of the forged documents. If the police do not act, the advocate can apply to the Magistrate for an order directing investigation.
I had lent money to a close relative who had accepted that he would return it. What legal steps can I take after he has failed to do so?Q: RajeshI lent approximately Rs. 1.3 lakh to a close relative through bank transfers over the past four years. There is no written loan agreement or promissory note, as the money was lent purely on the basis of family trust.He has repeatedly promised to repay the amount, including through monthly instalments, but has failed to do so and is now avoiding my calls and messages. I have bank transaction records and WhatsApp conversations in which I have asked him to repay the money and he has responded with statements such as “give me some time,” “I will call you,” and “I will send it.” However, there is no specific message in which he acknowledges the exact total amount owed.What legal options do I have to recover the money? Can bank records and WhatsApp conversations be used as evidence in the absence of a written loan agreement? Is there a limitation period for filing a recovery case, and would sending a legal notice be the appropriate first step?
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A: Kunal Cheema’s responseYes, your bank statements and WhatsApp conversations can be important pieces of evidence in today’s age, in establishing the fact that you have lent money to your relative.Under the Contract Act, there is no requirement that a contract has to always be in writing. The same is required, only if any other law requires so. For example, an immovable property can be sold only through a registered agreement and hence the same has to be in writing and duly registered. But, the facts of your case are different.Section 10 of the Contract Act, 1872 reads:“All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.”Can you recover money without a written loan agreement?
- Yes. A written loan agreement is not compulsory for an ordinary personal loan between two individuals.
- A civil recovery claim can be based on an oral agreement, additionally, if available, supported by documentary and electronic evidence.
- However, please note that bank transfers establish that money was transferred, but do not automatically establish that it was a loan.
- Your WhatsApp conversations and the surrounding circumstances may help establish the purpose of those transfers.
Can WhatsApp messages be used as evidence?
- Yes. WhatsApp conversations are admissible as electronic evidence, subject to the applicable evidentiary requirements.
- The Bharatiya Sakshya Adhiniyam, 2023 (BSA), recognises electronic and digital records as evidence.
- In particular, Section 61 recognises the admissibility and legal effect of electronic or digital records; Section 62 deals with proof of their contents; Section 63 provides the requirements for admissibility of electronic records, including the prescribed certificate where applicable.
- Section 63 refers to “electronic record” stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any “communication device” etc.
- Your WhatsApp conversations may establish that you repeatedly demanded repayment. Your relative knew that you expected the money back. He did not deny the repayment obligation but repeatedly sought additional time to repay.
WhatsApp messages and acknowledgment of debt under Section 18
- Section 18 of the Limitation Act, 1963 provides that a written acknowledgment of liability made by the debtor before expiry of the limitation period can give the creditor a fresh limitation period of three years.
- The acknowledgment need not necessarily mention the precise amount or the exact nature of the debt. This is expressly recognised in the “Explanation” to Section 18.
- But Section 18 also requires the acknowledgment to be signed by the debtor. Therefore, a WhatsApp message saying, “I will repay you”; “Please give me some time”; “I will send the money next month”, may be relevant evidence of an admission, but you should not automatically assume that every such message constitutes a legally sufficient signed acknowledgment under Section 18.
- Whether a particular electronic message satisfies the statutory signature requirement is a separate legal question and may need to be examined by a legal brain.
What is the limitation period for filing a recovery suit?
- Under Article 19 of the Schedule to the Limitation Act, 1963, the ordinary limitation period for a suit for money lent is three years from the date the loan is made.
- Please note that, merely asking your relative to repay the money does not ordinarily restart the limitation period.
- Similarly, sending a legal notice does not by itself extend limitation.
Can a subsequent acknowledgment extend limitation?
- Yes, as provided under Section 18 of the limitation act.
- If your relative makes a legally sufficient written and signed acknowledgment of the debt before the existing limitation period expires, a fresh three-year period runs from that acknowledgment.
- Section 19 of the limitation act also provides for a fresh limitation period where the debtor makes a qualifying part-payment before expiry.
Should you send a legal notice first?
- Yes, I would recommend sending a formal legal notice through an advocate before instituting a civil recovery suit.
- The notice should possibly: (i) Set out the dates and amounts of all bank transfers; state that the amounts were advanced as loans and not gifts.; (ii) Refer to the WhatsApp conversations and repeated repayment assurances; (iii) Specify the total principal outstanding (iv) Demand repayment within 15 days of receipt of the notice.; (v) State that appropriate civil proceedings will be initiated if payment is not received.
- A legal notice serves several purposes: (i) It formally communicates your demand. (ii) It gives the adversary an opportunity to settle the matter. (iii) His written response, if any, may provide additional evidence. (iv) It helps establish the history of your demand for repayment.
- Please keep in mind that you need not wait for the notice period to expire, if any transaction is approaching its limitation deadline. A legal notice does not stop the limitation clock.
What civil proceedings can you initiate?
- If your relative does not repay after receiving the notice, you can consider filing a civil suit for recovery of money.
- The suit can seek: recovery of the principal amount; reasonable interest, if legally and factually justified; costs of the proceedings; since you do not have a formal written loan agreement or promissory note, an ordinary civil recovery suit would generally be the appropriate route.
- A summary suit under Order XXXVII of the Code of Civil Procedure is generally not the appropriate route merely on the basis of bank transfers and informal WhatsApp conversations. It is normally intended for specified categories of written instruments and written contracts, as stated therein.
Can you file a criminal complaint?
- Non-repayment of a loan, by itself, is ordinarily a civil dispute.
- Criminal proceedings for cheating under the Bharatiya Nyaya Sanhita, 2023 may be considered only if there is evidence that your relative had dishonest or fraudulent intentions when obtaining the money.
- The fact that he subsequently stopped answering calls or failed to repay does not, by itself, establish cheating.
To summarise, you could do the following:Prepare a transaction-wise statement: List every transfer over the four-year period and calculate the outstanding balance.Examine limitation transaction by transaction: Identify which transfers are within three years and whether any earlier transfers have a qualifying acknowledgment or payment extending limitation.Make one final written demand: Ask your relative to confirm the total outstanding amount and propose a definite repayment schedule.Send an advocate’s legal notice: Demand repayment within 15 days, without allowing the notice process to prejudice any limitation deadline.Institute a recovery suit if necessary: If repayment is still refused, consider filing a civil recovery suit for the amount legally recoverable.FIR: If so advised, based on the available evidence, additionally consider filing a FIR for cheating etc.
My co-operative housing society is insisting on a notarised indemnity letter from me to transfer the property already gifted to me by my late father. Is the society right in doing so?Q: Rajesh ShenoyI would like to seek clarification and understand the legal position regarding the following case:A father-son duo are registered members and share certificate holders of a Cooperative Housing Society Limited (post-redevelopment).A couple of years ago, in 2024, the father executed a registered gift deed in favour of his elder son, transferring ownership of his flat. The gift deed was executed during the father’s lifetime.The elder son verbally (informally) informed the Society’s committee members about the execution of the gift deed. However, the Society’s share certificate continued to remain in the father’s name, as this was what the son had expected.The father passed away approximately three months ago.Meanwhile, following redevelopment, a new Society Committee has recently been formed.The elder son has now approached the Society to transfer the shares and interest in the flat and issue a share certificate in his name.The new Society Committee members initially insisted on obtaining an NOC from his sibling to safeguard themselves.The elder son informed the committee that the flat had already been legally gifted and transferred to him through a registered gift deed during his father’s lifetime, although the share certificate had not been updated.He also referred the committee to the relevant provisions of the Society’s bye-laws, namely Sections 154B-13, 154B-12 and 38, explaining that an NOC from the sibling is not mandatory.The committee subsequently acknowledged that the sibling’s NOC was not required.However, they have now started insisting on a notarised letter stating that the Society and its committee members will not be held responsible for any future disputes or issues, and that the elder son will assume responsibility for the same.Is such a notarised letter legally mandatory as part of the transfer process, or should the registered gift deed, being a legally executed and important document, be sufficient to establish the elder son’s ownership and entitlement to have the Society’s share certificate transferred into his name?
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A: Dhananjay Mahamuni’s responseIn view of the execution of the registered gift deed, the elder son has become the sole and absolute owner of the said flat. Consequently, he is entitled to apply for membership of the housing society in his capacity as 100% owner.Since the ownership is undisputed, the society cannot insist upon a notarized letter stating that the elder son alone shall be responsible for any future issues, as such a requirement is beyond the scope of the model bye-laws.Accordingly, the elder son should submit his application for membership along with all requisite documents prescribed under the model bye-laws and obtain an acknowledgment from the society. The society is required to take a decision on the application within 90 days.If the society rejects the application, it must provide written reasons for such rejection. In that event, the elder son may prefer an appeal under Section 23(2) of the Maharashtra Cooperative Societies Act. Conversely, if the society fails to take any decision within 90 days of receipt of the application, the elder son may file an application under Section 22(2) of the Act before the Deputy Registrar.Keep sending in your questions on: mylawyer@timesofindia.com
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