My father was missing last 15 years

Suman Arora (Querist) 21 June 2018 This query is : Resolved
Dear All experts,
My father was missing last 15 years his one shop in delhi
Please advise can my mother give property on rent.
She has no income source. & I have no brothers & Sister's.

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K Rajasekharan (Expert) 22 June 2018
The person missing is presumed to be dead - on the date on which the missing period crosses seven years - as per section 108 of evidence act. But there is no perfect way to declare his death under Indian law, as the person declared dead can come back on any day thereafter.

So one way left for you is to file a declaration suit in the civil court to declare the right of the legal heir to the property of the missing person in a declaratory decree, under Section 34 of the Specific Relief Act r/w Section 9 of the Civil Procedure Code.

The other legal heir and the District Collector representing the State should be made the defendants so as to make the judgement binding on all. The court can issue an order, it seems.

Hope others may point out the lacunae of this reply and the alternate way to deal with the issue, if any.

Guest (Expert) 22 June 2018
Depends upon the intending tenant, if he is ready to get shop on rent by relying on the mother and daughter. Otherwise, legally, you would be required to get the civil death of your father pronounced due to his missing by the order of the court of law.

Vijay Raj Mahajan (Expert) 22 June 2018
Simple question and simple answer, the wife can give the shop on rent that belongs to the husband, no law can prevent her for do this in the absence of the husband whose whereabouts unknown for 15 years.
Any person who can come and challenge the letting out of the shop can be the husband during his lifetime or after his death his legal class 1 heirs for Hindu family and in this case the wife and children are supposed to be the class 1 heirs.
So what for going into all those formalities of filing suit and getting order from court before letting out the shop by the wife.

Adv. Yogen Kakade (Expert) 22 June 2018
Precisely and rightly guided by Mr. Mahajan. Nothing more to add.

Kumar Doab (Expert) 22 June 2018
In your case ; Approach your own very able senior LOCAL counsel of unshakable repute and integrity specializing in rent/civil matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the case related docs etc etc and give inputs and let your own counsel draft the agreement etc that is to suit your situation and defend your long term interest..
Your own counsel shall handle the matter and you can rent out the shop.

Kumar Doab (Expert) 22 June 2018
Which personal law applies in your case?
Are you all Hindu?
Confirm!

Was any complaint with local police lodged under proper acknowledgment?
If yes, IT was police that was to investigate and file report.
You can approach court for decree of Civil Death.

Kumar Doab (Expert) 22 June 2018
In case of Hindu male dying without disposing her estate/property in her life time by a valid/registered deed the 1st right is of ClassI legal heirs ie.e Mother (if alive as on date of death), Wife (if alive as on date of death), sons, daughters……

In case of deceased Hindu woman dying without disposing her estate/property in her life time by a valid/registered deed ClassI,II is not applicable rather nature and source of property matters.

If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her husband (if alive as on date of death) and sons, daughters…………
If property is acquired from husband side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of husband..
If property is acquired from parents side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of father..

The authority under whose jurisdiction property falls has a set procedure for such matters if NO WILL has surfaced; Intestate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Death certificates, legal heir certificate/affidavit (per local procedure-precedence) are basic requirements. Then authority shall act upon and transfer the ownership in the name of legal heirs. Obtain copy of updated mutations records showing share of legal heirs. This grants rights equal to that of owner to legal heirs. All legal heirs are at liberty to relinquish/release/transfer/gift/sell their share in anyone’s favor.

Ms.Usha Kapoor (Expert) 23 June 2018
I agree with Vi9jay raj mahajan aand Rajasekharan.

Guest (Expert) 23 June 2018
Who went he went. No asker no teller. Do what you want until he comes back. But you should have sufficient legal, ethical explanation to give to person who went off 15 years back in case he returns. There is nothing to ask to a lawyer here.

Kumar Doab (Expert) 23 June 2018
Dear LCI Querist @ Ms. Suman Arora,
You have received inputs for your missing father in other threads initiated by you,

http://www.lawyersclubindia.com/experts/My-father-was-missing-since-1-aug-2002-667916.asp
http://www.lawyersclubindia.com/experts/How-to-apply-for-widow-pension-in-delhi-667921.asp
You are yet to make IT clear on which date/month/year you lodged complaint for your father who has been missing since 01-Aug-2002.
As already suggested in this thread you may show the acknowledgment of the complaint lodged for missing father and property related docs to your own LOCAL counsel to draft the rent agreement to mind your long term interest
and/or convince the intending tenant…

Kumar Doab (Expert) 23 June 2018
In case you are sure that you can handle the matter of declaration of Civil Death on your own, go ahead.
If you want you may seek FREE Legal aid from DLSA….that is usually within LOCAL courts complex..
The court may issue directions as per your pleading and provide relief.

My father was missing last 15 years

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