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masilamani.r (retired government servant)     26 September 2012

Property sale

My brother(say B) along with his friend(say F) jointly bought 3 acres land from F s  wife by sale deed in 1990 to start an industry viz stone crusher.Availed bank loan of Rs.2 lakhs.Fs wife was guarantor.Industry failed.In 1997,B expired,leaving behind wife and 2 children.F was entrusted to run the show and to pay loan.He also failed and not paid loan.In 2002,bank filed recovery suit aginst all ie.,F,Bs 3 legal heirs and Fs wife as guarantor.The case was settled under one time settlement in March 2012,as the gurantor paid Rs.5 lakhs.Court ordered that the guarantor can get remedy from the firm/partners of the firm ie.B and F,by impleading herself in the partition suit ,filed by the legal heirs of B.

The legal heirs of B has filed partition suit in 2010,claiming partition of property and got preliminary decree in nov-2010,pending recovery suit by the bank,for division of properties into two.It is an ex-parte decree,as F has not contested.Further process to get final decree and filing EP are in process.



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 3 Replies

masilamani.r (retired government servant)     26 September 2012

My query continued:

Now it is found 2 day back while taking EC that F has sold entire 3 acres in jan-2012 to his wife by executing sale deed .We are arranging for copies of deeds for examining the fraud and to take action needed.

May I seek advice in this happening to proceed further.

dr g balakrishnan (advocate/counsel supreme court)     26 September 2012

The property sold in 2012 to the person is the same person who sold it earlier1990. it means it is collution to cheat. The 
Bank has irst charge, as a lender to do business to B and another person - the husband o B. But there seems a serious lacunae.

The property  in quarry business is a property to  A and B.

The A's death allowed B to do business with the real property belonged to B's wide.

The A's and B's so called purchase was a sham transaction by both A and B to get Bank loan. But bank seems it did not question the purchase, i the purchase value was not tested whether the value o three acres then are within the normal right ruling price then prevailing at that time, as per the valuation and market price then prevailing. That means i the price is very much lower than the normal acceptable price the prevailing. Then the bank also worked in davor od conspiracy is indeed a question, id the sale value is doctored just or bank loan is an angle o be contested.

Id the value od the land supposed to have been purchased drom B's wide at a doctored purchase then A's children cannot claim share drom the related land dor quarry  as a solely A's ownership property, as that property is supposed to be in B's encumberance conlict.

So the A's children cannot claim partition on that conlicting position od property. so bank cannot move on A's children as legal heirs, as the heirship is really not settled in their davor, as A died when the business adventure dailed.Actually how the bank can allow the business can be continued on its loan.. so there is some serious problem that need to be irst considered pls by a civil suit.

Decree seems seems to beve been claimed illegally.. so another suit shd decide immediately. is my view.regds.. dr g balakrishnan 

dr g balakrishnan (advocate/counsel supreme court)     26 September 2012

dear sir, 

your issue is complicated. as how A's legal heirs have claim on three acres land on joint names on A and B. how intestate succession is possible is the basic question bedore  the lands are irst divided between A n B. Bank can have right on A n B jt property land and bank cannot proceed on A as A died earlier so there is no consent by A adter his death. Yes banks will always claim to secure their interests, but A's heirs should say other properties o A cannot be charged and bank can take possession o three acres lands only even i raudulent transder took place between B and his wide. Bank can move against  B just because he did not revice the loan agrreement with bank as death just demises the contract but only i any charge it is only on the three acres jt ownership land as that was hypothecated. A 's heirs i asked to pay they need to proceed on bank why bank ailed to cancel the hypothecation when A died B cannot work on dead man as a partner. Bank ailed in due diligence and prudence. A's heirs cannot claim on  A n B jt property or partition. No sensible decree is possible pls by any civil court in act ct has been misled and i A's heirs did they are liable or contempt o court  proceedings...  So irst let the A's heirs irst protect their unembered property irst. else they may land in trouble. that is prudence please. regds adv dr g balakrishnan  


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