1) refuse to vacate
2) let your BIL prove the will executed by your father in law
3) in the event BIL applies for probate oppose grant of probate
4) it would be converted into testamentary suit and take 10 years to be disposed of
Property inheritance
My Father in law constructed a ground floor house on a plot in 80's at his native place and stayed there with his younger son (my husband's younger brother). My husband was working out of town and upon retirement returned back to native place and built our first floor house on the ground floor 4 years back. We don't have any child. Unfortunately my husband died 2 years back. Last year my father in law also died. Now I am asked by the younger brother that my father in law by way of a registered will has given this property to his only grandson (son of the younger brother) and I should vacate the house immediately. I am a house wife and a lone lady in early 60's making my ends meet on the savings. The first floor house was constructed by my husband using his retirement fund/part fo savings without any monetary assistance upon a go ahead from my father in law. Please advise me what to do?? What are my rights?
Asked 6 years ago in Property Law
Religion: Hindu
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14 Answers
1. Don't leave this property. Being the widow you have right of residence in the shared matrimonial home.
2. Mere transfer of the same by your father in law doesn't relinquish such right.
3. Let your brother in law seek legal intervention when you can take this defence.
You have a right to residence being the widow, it is therefore advised that you do not leave the property.
Mere transfer will not take away your right.
Moreover, You can in advance file a caveat in that court so if any case is filed in the court of law then no order is passed ex-parte.
Regards
Hi, you can file for a civil suit of declaration and permanent injuction against him .. You have a legal right in the property and cannot be evicted forcefully
1. Your husband has constructed the 1st floor on the ground floor constructed by his father on the land which stands in the name of his father.
2. So, as per law, the all the floors constructed upon the land standing in the name of his father is owned by his father.
3. However, you can file a declaratory suit praying for a declaration that the 1st floor belongs to your husband since he has spent all the expenses for the said construction after getting verbal assurance from his father that the 1st floor will be owned by him.
4. You shall have to submit evidence of his bearing all the expenses for the said construction of the 1st floor.
5. The case will run for years and in the mean time you can come to a settlement with your brother in law about your staying in the said 1st floor entering in to an agreement that you shall not sell the 1st floor which will be owned by the son of your brother in law after your demise.
Even if what he says is believed to be true, this will, if any, will not effect your possession on the first floor of the house. This is so because this portion was built by your husband out of his own funds and what your father in law could have transferred by the way of this will, was just the ground floor and not the first floor which is currently occupied by you.
File a suit for cancellation of this will, after procuring it's copy and obtain an order of status quo so that your peaceful possession over the first floor is not disturbed.
You have right to stay in the house irrespective of the fact that ground floor is directed by your father in law and first floor is constructed by your husband. If you have evidence to prove that first floor has constructed by your husband then you have right to stay in the first floor. Your father in law has made a will and given whole house to his grandson, this will cannot be executed by probate petition because your father in law had no right to transfer first floor of the house because it was constructed by your husband with the consent of your father in law and once the karta of the Hindu undivided family made consent to add some property in the common stock of the joint family then that added property cannot be transferred by unanimous act the karta. in this condition you can challenge the will if grandson wants to take profit of the wheel and evict you from the house.
1. Was the first floor separately registered in your husband's favour? If the answer to this question is in negative then your father-in-law being the absolute owner of the property could have made a bequest of it according to his sweet will.
2. If you have evidence though to prove that your husband constructed the first floor from his own sources of income then you can file a suit for declaration of your husband's title and seek permanent injunction against your eviction.
Legally you can inherit the share of yor husband in the property.
Since this property belonged to yor father in law and also you possess documentary evidence to prove the construction of first floor was completed by your husband's funds, you can very well file a partition suit or even declaration suit to declare the title of the first floor on your name
You may consult a local advocate and decide further course of legal action
Thanks to all the 9 responses. It shall assist me considerably and improves my confidence. I have read all responses in provide additional information which may assist all the lawyers to add more to their initial responses: 1. It seems that BIL already got probate and property transferred in grandson name. Neither I was informed nor I was aware of the registered Will existence until now. 2. Under constant threat from my BIL, I had started staying alone at my mother's house which is nearby. My parents died few years back and my sisters who inherited this house have consented to allow me stay here as long as required. I don't have a brother. The first floor house is locked and in my possession. 3. Which Caveat should I file? and for what? 4. Can I still file a suit for cancellation of the registered will even after the property is already transferred in grandson's name. 5. First floor is not separately registered. When my FIL was constructing the house in 1980s then he got approval for the house with ground floor + first floor. the first floor wasn't constructed then, and now constructed by my late husband. 6. On Diwali day, my nephew (the grandson, age 27yrs) visited me and promised that he is here to bridge all differences between his parents and me. He requested me to come back and stay in my first floor house. Also that he shall stay with me at the first floor and take care of me like his own mother for rest of my life. He is going to be married soon, and promised that his wife will also equally take care of me. Should I fear that they break in my house and start living? In case they break in, how am I going to prove that later? Should I complain to Police right now about my fear and that I have threats and the locks to my house can be broken? Please guide me convincingly. One of you rightfully wrote that the case will take years and I don't want to squander my remaining savings on the case.
Asked 6 years ago
Contact a local lawyer and check where notice issued in testamentary petition have been served or not
2) if your BIL did not mention your name as legal heir nor was notice served apply for revocation of probate
3) litigation is long drawn and expensive proposition and take years to be disposed of
4) amicable settlement is best option
5) you should go and start staying in first floor of the house
1. Will without Probate has no value.So wen at the time of applying for it you can put challenge to it and if the Will is found to be not validly executed then Probate would not be issued.
2.Caveat is not the solution here.
3.if you trust your nephew then you can start residing there but do not loose possession of your matrimonial home.
The proposal given by your nephew may be having an hidden agenda.
It may be a ploy hatched by them to gain entry to your locked house.
Better analyse the situation and then decide about the further course of action.
You cannot make a complaint with the police about the event which has not taken place.
Yes you must complaint to the police immediately about the said fear, and that is true that the case if filed will take years.
Regards
1. When your BIL filed an application seeking grant of probate, he should have given the legal heirs certificate which includes you to enable the Court to send you notice for your giving consent or oppose the probate application.
2. It seems that legal heirs certificate was not produced before the court and probate has been obtained in an unclean way.
3.Immediately file an application challenging the probate.
4. Do not allow him to occupy your floor which may be disastarous for you later on legally.