Property of abscounded mentally disabledl person
Guest
(Querist) 17 August 2013
This query is : Resolved
Brother in law (husbands brother)was a mentally disable person. He has abscounded since the last 7 years. However no police complaint for missing person was lodged. He owned a flat (no society formed as yet) which is required to be transferred to my clients name. They have multiple doctors certificates to prove the illness.
1. can this be done
2. what would be the procedure to do the same.
3. Which legal provision would apply in this case.
4. Does the nature of mental disability matter int this case.
Sudhir Kumar, Advocate
(Expert) 17 August 2013
his mental illness is irrelevant. One does not loose right over his property being insane. He is entitled to custodian of the property.
Rajendra K Goyal
(Expert) 17 August 2013
If a person is missing since 7 years he is considered as dead. In this case no police complaint is registered it would not be easy to get such certificate.
Insanity does not deprive right in property.
Sudhir Kumar, Advocate
(Expert) 17 August 2013
now coming to his being missing S/108 Evidence Act provides that any person misingfor the last 7 years is presumed dead.
Guest
(Querist) 17 August 2013
But since in this case, there was no police complaint how do i calculate the 7 years... is there any other solution..
His parents are dead and the only surviving person is his brother, who was staying there with him, and is now currently staying there with his family
Sudhir Kumar, Advocate
(Expert) 17 August 2013
read section 107/108 of Evidence Act
S/107
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
S/108.
Burden of proving that person is alive who has not been heard of for seven years. -
1Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2shifted to the person who affirms it.
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Rajendra K Goyal
(Expert) 17 August 2013
Well advised by expert Sudhir Kumar ji. Nothing more to add.
M V Gupta
(Expert) 17 August 2013
In my view answers for ur queries are as under:
1. In the absence of police complaint, u may have to produce other collateral evidence before the court to show that all persons who would have heard about him have not heard any thing about his whereabouts or his existence (i.e., oral evidence)dueing the last more than seven years.
2. U have to file a declaratory suit in the court to declare him as dead. Then his legal heirs can claim his properties.
3. Section 108 of Evidence Act
4. No. Mental disability does not deprive a person of his properties.
adv. rajeev ( rajoo )
(Expert) 18 August 2013
since 7 years he is absconding, so go for declaration suit to get it declared as civil death
Raj Kumar Makkad
(Expert) 18 August 2013
Well avised by experts hence no more to ad.
Sudhir Kumar, Advocate
(Expert) 18 August 2013
facts will not change by repeating query at http://www.lawyersclubindia.com/experts/Property-of-mentally-disabled-person-abscounded--416516.asp#.UhCgFn_Qzmk
Guest
(Querist) 19 August 2013
Sorry about the repetition. No disrespect intended. Just being new around here.
