Heir missing in prior document
VTC
(Querist) 17 January 2014
This query is : Resolved
Sir,
I have purchased a plot from a person named Monish on 2007 in Kerala, he in turn had purchased this plot from a lady on 1996. On 1993, this plot was one amoung the six pieces of an ancestrial property divided by heirs.
During that time, in Partition document of 1993, there were seven heirs mentioned and following was written about one heir:-
"Balan left country very long time before and is treated as dead, hence his share divided amoung brothers and sisters"...
There is no document supporting the above statement availble anywhere.
Now I want to sell this plot and buyer is pointing out this as a serious problem.
Please advice me how can I solve this problem legally..?
T. Kalaiselvan, Advocate
(Expert) 17 January 2014
Yes documents about missing person i.e., a complaint copy with the police, a certified copy from court confirming the person as missing should have been obtained. Even now by filing a declaration suit, any of the legal heir/relative can obtain it from court which is always essential.
Guest
(Expert) 18 January 2014
Person who had left the country how could you treat him as dead.His Rights and his Legal Heirs Rights could never be denied.Pray and waite for his arrival.
Devajyoti Barman
(Expert) 18 January 2014
A person untraceable for at least last seven years is considered to be a civil dead person.
Rajendra K Goyal
(Expert) 18 January 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Person-missing-in-prior-document-445911.asp#.UtoXrbThWsw
P. Venu
(Expert) 18 January 2014
Irrespective of the merits of the 'missing', or rather the 'absent', heir deprived of the share in the ancestral property, the liability, if any, in this context rests with the original transferors, esp. in view of the recital in the partition deed.
An innocent third party, having paid the full consideration for the transfer of property, cannot be burdened with this liability.
VTC
(Querist) 18 January 2014
Sirs,
There is no dispute ie. no claims from the missing heir till today (~21 years, Not heard or seen) regarding the property.
I took advice from some local experts and some suggested to take a Relationship certificate of Heirs from Village office stating missing heir as dead; since his age itself will be more than 90 years.
Whether this will work??
Guest
(Expert) 18 January 2014
What about his family and his legal heirs
T. Kalaiselvan, Advocate
(Expert) 19 January 2014
@ VTC: sometimes the certificate by a VAO or Revenue authority stating that the 90 years old is presumed to have died as per the enquiry, will solve the issue, especially in the event of his age being above 90 years now and he is not heard of for the pat 21 years or more.
Guest
(Expert) 19 January 2014
There is no restriction in any law when the rights could be claimed so Balan or his legal heirs could claim their rights any time.The experts could make it clear to me as a lay man whether the person above 90 years to be assumed dead.
P. Venu
(Expert) 19 January 2014
I am afraid we are missing the woods for the trees. The 'missing' heir has subsisting a right and that enforceable at any chooses to return and claim. But in that eventuality, the responsibility rests with the original seller and they have accepted that responsibility by acknowledging the fact in the partition deed. The recital indemnifies the subsequent transferees for consideration.
T. Kalaiselvan, Advocate
(Expert) 19 January 2014
Well said by expert Mr. Venu. Once the recital in the said deed indemnifies the issue, hope things can be set right and proceeded accordingly. a person not heard of for more than seven years is presumed to be dead but the competent authority should certify that. I this case, the VAO/Revenue Department's certificate to this effect may solve the issue for now and after that if at all the issue still persists, a declaration suit in a civil court may be filed for necessary relief.
P. Venu
(Expert) 19 January 2014
Are not the provisions of Section 41 Transfer of Property Act sufficient to take care of this contingency?
Guest
(Expert) 19 January 2014
The Learned Experts could please tell me the Declaration Suit should be filed by whom
