My sister now 68 years lost her husband at a very young age after 5 years of her marriage. After her husband’s death, She worked hard as a Teacher in Delhi until her retirement and built her own home more than 15 years back with her own money in Delhi on the vacant piece of land inherited from her deceased husband’s parental estate. She brought up her only son from her deceased husband. After few years of her being a widow, she legally married one of her family friend with the clear understanding that she will not have any kids from him. After few years of their marriage, they mutually divorced as he wanted to have kids. My sister inherited a vacant piece of land from her deceased husband’s parental estate. She sold her own house in Faridabad and with the money from the sale proceeds and borrowing from parents and relatives, she built a new 3 storey home on this inherited vacant piece of land. After this house was built, her only son got married more than 15 years back and still living in this house with his wife and their two sons on the first floor for the last more than 15 years. My sister who built the house on the inherited land had also been living with great difficulty with her son and his wife on first floor. She tolerated mistreatment both by her son and daughter-in-law for the sake of her two grandkids. All rental income from this property on second and third floor including shops was also completely given by my sister to her son’s family. Both son and daughter-in-law have been abusing my sister and she requested her son to let her live peacefully separately on the second floor of the house but her son and daughter-in-law refused and told my sister that since she had married again in the past, the property does NOT legally belong to her and my sister has been thrown out of the house that she built with her own money. In view of the details provided above, Could you Please advise what is the legal right of my sister and her son and what should my sister do in these circumstances. I am looking for an extremely experienced Lawyer in Delhi
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Your sister should file case before senior citizen tribunal and seek court orders to direct her son and daughter in law to vacate portion of house in their possession
2) she should also seek monthly maintenance from her son
3) remarriage of mother does not imply that she has no rights ,title ,interest in house built by her from her savings
House is constructed on land belonging to in laws of sister that is grandfather of her son. Title of property goes with land and not with the structure over the land. House constructed by her being on ancestral land becomes ancestral property in her hands in which her son have equal right of share. She being holder of half share, have equal right to reside in the property. To start with she can file a criminal complaint in the court of Magistrate under Section 24 of Maintenance and Welfare of Parents and Senior Citizens Act for abandonment of senior citizen for which punishment is jail up to three months. For permanent solution she has to file a suit for partition of property in civil Court. In the suit she can seek direction to son and tenants for deposit of rent in the Court. Add all the tenant as pro forma parties to the partition suit. She will get immediate relief by filing criminal complaint and permanent solution by filing suit for partition .
Your sister can approach the senior citizen's welfare tribunal and get her son and daughter vacate from the house by applying the force of law.
Maintenance and Welfare of Parents and Senior Citizens Act in 2007 (Senior Citizens Act) which grants such rights, to the senior citizens, can be invoked by your sister to get them vacated from the property.
To protect their rights, senior citizens planning on gifting property to their child should consider including an express condition in the gift/transfer deed that the child will maintain them. If the child violates this condition, then the parent can approach the Maintenance Tribunal to declare the gift void and return the property to the senior citizen.Some courts have even observed that an express condition is not required in the deed and as such, a condition may be implied when a parent gifts property to a child out of love and affection or in lieu of services.
Although the Senior Citizens Act itself does not provide for eviction/removal from property, Indian courts, including the Supreme Court, have permitted eviction/removal of the children or relatives from the property of senior citizens in case of harassment or non-maintenance.Courts have also ordered removal of children from the parents’ home when children have resorted to harassing their parents.
Dear client, The Nagpur bench of Bombay high court in one of the case has ruled that a widow, who later remarried, still has a right over the deceased husband’s assets if process of succession (the devolution of property in case a person dies without a will) has started before her second marriage.
Moreover, she has built the house by her own income hence she has full right over that.
She can claim right on the said property. She can also take help of senior citizens Act and evict her son and his wife. She can also approach civil court for eviction
If your sister's deceased husband died intestate, i.e. without making a will, then it would be considered that a notional partition had been effected just before his death, and your sister and his son would have equal shares in the property, because they're both class I heirs under Hindu Succession Act. it does not matter that your sister re-married because once a partition has been effected, her share in the property would become her self-acquired share and her son has no right over her share.
