Advocate Aniket Bhattacharyya

Questions Answered by Advocate Aniket Bhattacharyya

Q: Can my children claim right on their deceased father's property

My husband passed away. I am widow with two kids. My In Laws can sell out the ancestral property without my consent. What can I do for my children's right. This property is in village near Hathras (UP). Please advice me. We are Hindu Brahmin family

Advocate Aniket Bhattacharyya answered
According to the laws of succession, since your husband has passed away intestate (without a will) leaving behind his widow, and children who all come under Class 1 heirs all three of you stand entitled to claim your husbands share in the Joint Family Property. You need to move to Court seeking for partition and also ask for interim relief (whereby your in-laws will be stopped from selling property and/or creating any third party rights in relation thereto). Additionally, for the sake of pressure file a case of maintenance under Section 19 of the Hindu Adoptions and Maintenance Act, 1956 against your father-in-law. However, you need to understand that this section is operative when you are not being able to maintain yourself and/or when you have no property to your name.

Q: To whom should I appeal against the order of District Forum

Respected senior lawyers, Kindly advise me that whether I can prefer an appeal directly to National commission against the order of District forum, if the ground of appeal involves the pecuniary jurisdiction of the National commission. More precisely, if the case is decided by the DCF without its pecuniary jurisdiction which is vested with the NC, then can I prefer appeal to NC directly or not? Or should I prefer appeal to SCDRC to refer the case to NC. Regards

Advocate Aniket Bhattacharyya answered
Dear Sir,You have to file an appeal as per Section 15 of the CPA and in accordance therewith, you should file before the SCDRC. You can approach the NCDRC only after exhausting the right to first appeal (i.e. before the SCDRC). In regards your pecuniary jurisdiction, if the Case was wrongly filed before the DCF and you are of the opinion that pecuniary jurisdiction exists only with the NCDRC, this is attributable to your fault or that of your counsels at the first instance leading to the filing of Complaint before the DCF. Therefore, maintaining abundant caution approach the SCDRC as under Section 15 on the ground that the order of the DCF is without jurisdiction and bad in law. Accordingly have it set aside, by the SCDRC as if you do not it will attain finality. Thereafter, seek permission of the SCDRC for granting of liberty to file the complaint afresh before the competent forum i.e NCDRC.

Q: Who is responsible for paying the court fees in a partition suit

Hi ths is regrdng property of my younger mamaji who expired 2 yrs bck in road accident & couldn't make his will. I, my sister & my mom were staying with him since last 36 years as my father had expired so my grandfather got us over here. Now after my mamaji expired, my elder mama is not so keen to share property value with his rest 9 sisters. He has put some of his conditions to sign mou that are first locker of my deceased mamaji needs to be opened first by having successor certificate as there is no nominee in it then only after that he would agree to sign MOU & his third condition is tht my deceased mama property basement sud be sold to him only & not to any other third party. So out of my mother 8 sisters, 4 sisters including my mother hv decided to file case against my mamaji who not signing mou. But my mausaji says tht case sud be filed by my mom only as she staying here instead by all as doesn't hv to pay court fee otherwise if they file they hv to pay. Is it true? pls suggest.

Advocate Aniket Bhattacharyya answered
The party seeking partition will bear the court fee. Let your mother file and implead all sisters as respondents.See all sisters will have the same story i.e they are entitled to share in your grandfather's property...but your mother is the only sister staying in suit property.So file a suit and pay the fee will be nominal.. approx 100 to 150 rupees.. So why squabble?

Q: Illegal possession of property near Jangpura South Delhi

I had purchased a Residential Property for Investment purpose & had also taken Loan on the same. The Builder has not given Possession of the premises to me & another Third party is residing on the premises. Although it was discussed with Builder that I will be getting assured return @ 18% on my Investment / Rental of premises whichever is higher but nothing has been paid to me. On top of this I have to pay monthly EMI's on the Loan taken by me from NBFC. Now I don't have further Funds to pay the NBFC any further EMI's. Now only option left with me is to either File a Police complaint or to surrender the Flat to NBFC so that they can sell the Flat & close the Loan component. Please advice.

Advocate Aniket Bhattacharyya answered
You have options.. including going to company court, insolvency, civil remedies as well as under NI if PDCs were given apart from criminal complaints. You can get interim protection in regards the person currently in possession. However first start off with a legal notice and build your case.

Q: Clarification on procedure to file case online

There is a shop in mahipalpur which claims to be Clark's factory outlet. They have Clark's written on their board advertisement but refused to stock any Clark's shoes. Can I file a case against them online?

Advocate Aniket Bhattacharyya answered
No complaint can be filed online on such a spurious grounds.There are other remedies though. Send a legal notice and state false advertising and unfair trade practices.. maybe even a consumer complaint.