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Recovery of money from elder brother

Shivendra Pratap Singh

Advocate

18/05/2022

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Question: My elder brother and two sons took a loan from me for agricultural land development and my brother gave surety for that amount. Later my brother’s sons did not return money so went into court and in court my brother agreed that “he needed to pay money for my sister and all such things recorded in the court”. But my brother also stated that he does not have any money to pay for me since he does not have any income and as such, he requested the court to attach his properties but at present in none of the properties he is in possession including house or in agricultural land. 

My brother properties consists of ancestors properties of his share received through registered partition from my father and also one of the property which he received from his wife family through “pavati khata” but not changed into his name through any of the recognized mode of transfer like partition deed or sale deed or gift deed. However, the two sons comes to know that his father has given such above statement in the court to attach properties of their family and as such, they filed partition suit against their father with wrongful allegations (my elder brother) and included all the properties of their family in which we were in process to get attachment from the court to recover our money. 

The main reason behind filing a partition suit by my brother and two sons is to create trouble and delay our money recovery case and not to give money for me. Now our case is in execution stage to arrest my brother for recovery of money but since he is my own elder brother I do not want him to send for jail but I am struck with recovery process of our money even though he is ready to give money but his two sons are not allowing for the same through filing unwanted partition suit. 

Even though the partition suit is pending for partition among my brother’s family, can I attach any one of the property of agricultural land of my brother which he received through partition deed from my father for our money recovery case. 2.    Whether such property attachment can be restricted by those two sons of my brother by producing their suit for partition in our court of law in an execution case by claiming that it’s an ancestor’s property and should not be attached till disposal of the partition suit. 3.    Or else can we directly get a sale deed/lease agreement for the consideration amount of our case from my brother through court itself with the permission of the court after following due process of law. 4.    Please suggest what is the best way to recover our money or get any worth of the property from my brother for my due amount? 

Asked from: Karnataka

Your brother has admitted that he has borrowed money from you. As well as he has asserted that he has to discharge his liability. If he does not discharge his liability the court may attach his property during the execution proceeding. 

Section 60 of the Code of Civil Procedure empowers the court to attach lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange, hundis, government securities, bonds or other securities belonging to the judgement debtor or he has disposing power on it.

So far as the ancestral property is concerned, your elder brother received that property when your father partitioned it among his sons. After the partition the nature of ancestral property becomes change and it is now the exclusive property of your elder brother. 

Hence, your elder brother can discharge his financial liability by alienating this property. He can utilise the sale proceeds of that property in the payment of debt. Moreover, his sons cannot claim partition of that property as their matter of right because this is the exclusive property of their father. He has the exclusive right in respect of that property. 

Therefore the court can attach this property in the execution of decree despite the fact that a partition suit is pending in respect thereto. Let the property be attached in the execution of decree. His sons cannot get a stay order on the basis that a partition suit is pending in respect of the attached property.

Attachment and sale of suit property is the best mode for recovery of debt. Your elder brother has exclusive right over the property which he received from his father after the partition. Hence, he has the unfettered right to sell this property without consent of his sons. A pending partition suit will not create a hurdle in the attachment and sale of that property. 

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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