• Right to property

With respect to the directives of High Court of Delhi in favour of the Senior Citizens right to evict their abusive children, I sought your help in understanding a similar case with my own widow mother, who has been the victim of abusiveness for nearly 13 yrs now. The house where she lives, stays along my elder brother,his wife and their daughter. The house used to be in the name of my father who died intestate. After his death, I got it mutated in my mother's name. I being their daughter, a son and my mom is the legal heir. I have tried my level best to settle the frictions amicably in the past with a hope that things would work for better over a period of time. But the situation has reached now that other than legal course, there seems to be no other way out. My mother is 73 yrs is medically unfit (suffering from Diabates)and find herself very weak to fight with the two and wanted to live peacefully. Also, my brother on most of the instances has threatened her that he will vacate only on court orders.Can anyone please suggest about legal recourse, that I should look for to help my mother. though she draws a minimal family pension. This house is the only property she has as of now. She is managing her expenses on her own. Though my brother and the family and my mother are living under the same roof, but the kitchen is handled separately. She is not been looked after well. I am ready to take care of my mother but her financial security is a concern to me given her health issue, since I myself have an 77yr old Father-in-law to be looked after. My Husband is equally very understanding , accommodation and wanted to extend his help to me for my mother. Given the circumstances, I could only keep her with me or close to my house and look after her. 

I am really clueless about how to seek a legal help to resolve this.I am living out of station, If I decide to file a partition suit from me and my mother, will it help. What would be the recourse, if my brother refuses to vacate the house even after filing the partition suit? Please suggest .
Asked 7 years ago in Property Law
Religion: Hindu

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4 Answers

1) you and your mother should file for partition suit for division of house by mete and bounds

2) since your mother is a senior citizen seek expedited hearing

3) your mother can execute a will bequeathing her share in house to you

4) will should be attested by 2 witnesses

5) in the alternative your mother and you can sell your shares in the house

6) under section 44 of transfer of property act co owner can sell his share without consent of other co owners

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

Dear Querist

immediately file a civil suit for partition by your mother against him and also file a domestic violence complaint against them before criminal court and claim protection from them and the court have power to restrain them to commit any domestic violence towards your mother.

in the partition suit or in Domestic violence case, the court have power to refer the matter before mediation and in the mediation both the parties can settled the matter amicably and get their respective shares.

apart from the above, you or your mother may file a complaint against them before SDM/DM of area Under the Protection and welfare of Senior Citizen & Parents Act-2007, the SDM/DM/tribunal have also power to restrain them for committing any illegal act against your mother and even order to vacate the house too.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. Since the property was owned by your deceased father it devolved through succession on his widow and both children if he passed away intestate. Your brother has a 1/3rd share in the property, so he cannot be evicted. Mutation in favour of your mother does not divest your brother of his share in the property.

2. The remedy for your mother is to file a DV case under section 12 of the DV Act to seek protection order to stop her son from subjecting her to further acts of domestic violence. Furthermore, she can also seek partition of the property to cull out her separate share. After partition she will be entitled to evict her son from her separate share in the property.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Just filing a partition suit cannot make your brother to vacate the house.

Your brother also has a share in the house property equally to that of you two as a right.

He cannot be evicted from the property without a decision from court.

Your mother can obtain an injunction order against him and his wife restraining both from interfering in her peaceful possession of enjoyment of the property or from creating nuisance or disturbance to her occupation in the house wherein she lives separately in another room till the disposal of suit.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

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