I and my husband are coowner of residencial flat at kandivali-east mumbai. my husband did leave and lisence agreement with third party and rented our flat without my knowledge and consent IN JULY 2015. I AM THE FIRST OWNER RESIDING AT BORIVALI. MY HUSBAND HAS FILED DIVORCE PETITION IN FAMILY COURT BANDRA ON JUNE, 29, 2014. HE HAS GIVEN THIRD PARTY UNDETAKING PLEASE LEAGAL ADVISE.
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FUL CLARIFICATION FOR THE ABOVE QUETION IN LEAGAL WAY
1) you are co owner of flat . Without your consent husband cannot give premises on leave and licence
2) issue legal notice to licencee to vacate the premises
3) your husband has acted in contravention of the undertaking not to create third party rights
4) you can take out contempt of court proceedings against your husband
1. You being the co-owner , can send eviction notice and subsequently file suit for eviction of licensee.
2. once licensee is evicted you can seek injunction restraining him fro creating third party interest in the said flat.
1. File a partition suit claiming your share on the flat and also the income derived by your husband towards rent from the said flat,
2. After that file an eviction suit against the tenant on the ground that he has not entered in to any agreement with you, being he co-owner, for which he is liable to be evicted,
3. It is not understood as to what third party undertaking has been provided by your husband and who is the third party?
1. The query is deficient in providing details to answer properly,
2. File partition suit and eviction suit as suggested in my earlier post.
1. The leave and license agreement had to be signed by both the co-owners, failing which it is not valid unless the property was partitioned.
2. You can file a lawsuit to seek the eviction of the tenant as the agreement has been executed without your consent. This apart, you can also claim compensation from him for renting out the flat without your knowledge and consent.
Hi madam, you and your husband are the owner of the said flat it amounts to joint property of you and your husband. You have every right to get your 50% share i.e., 1/2 share in the said flat even divorce decree can be passed against you by the court. You do not loose your rights over the said flat. You can challenge the third party undertaking by issuing legal notice to the said third party and also to give public notice in local daily news paper in local language including English Language Daily paper.
In a jointly owned property, one share holder cannot lease out the entire property to a third person, he is restricted to his share of the property alone. In the unpartitioned property, he may not be able to lease out the undivided portion also because it involves revenue from it.
You can file an injunction suit restraining him from leasing out the entire property unilaterally and an interim relief also on the same line.
1.File a partition suit before civil court for getting your share in the joint property.
2.one share holder cannot lease out the entire property to a third person with out the consent of other co owner ,so send a legal notice to tenant and after that file an eviction suit against tenant if he is not vacate the premises.
is there any high court judgement in my favor?
No judgment is required as none will help.
in Palitana Sugar Mills Private Limited & Anr. v. Vilasiniben Ramachandran & Ors., (2007) 15 SCC 218; and C. Elumalai & Ors. v. A.G.L. Irudayaraj & Anr., AIR 2009 SC 2214, wherein supreme court held that wherever there is a wilful disobedience/contumacious conduct - deliberate flouting of the order of the court, it amounts to contempt and it becomes the duty of the court to exercise its inherent power to set the wrong right as a party cannot be permitted to perpetuate the wrong by disobeying the order further.
In Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., AIR 1969 SC 189, this Court observed as under:
A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished......... Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."
(Emphasis added)
1. There is well settled proposition of law that any dealing in connection with a jointly held property shall have to be jointly dealt with,
2. One party can execute a POA also in favour of the other joint owner and in that case one owner acts for and on behalf of both the owners being empowered by the said POA,
3. If it has not happened in the instant case, you have a legitimate claim of seeking 50% of benefit derived from the joint property and also foe seeking eviction of tennt from the property jointly held by you since the tenant has not entered in to any tenancy agreement with you.
Once the provision of law is very clear and in your favor you do not have to go behind any settled law or judgement. The question of referring to judgement this regard will arise only when there is a case to be decided in this regard by a court. However, you can make a search in google about it.
Lower courts are fact finding courts.No need for the high court judgement for filing the case if needed its on at the time of final hearing.