apply to society to transfer father share in flat in younger sister name
2) once share is transferred in her name she would have your father share in flat
3) you should get court order to act as as guardian for your younger sister
Acquiring Guardianship of intellectually challenged sister and share in flat
I purchased a flat in 2002, valued at 11.35 lakhs, with an additional stamp duty and registration fee of 95,000, bringing my total expenditure to around 13.5 lakhs after making it livable with grills and modifications. My father contributed 4 lakhs towards the flat's purchase. I have two younger sisters, one of whom is mentally challenged, and I have been caring for her since 1996, after my father retired from his job. Both of my parents passed away in 2022, and my father did not leave a will. The flat is registered in both my name and my father's name. My older sister has no interest in claiming anything from the estate and is willing to relinquish her claim to the flat. I have also relinquished my claim on a shop that my father purchased and gave to her. My youngest sister is invalid, illiterate, and has an IQ under 35. Since 2022, she has experienced two severe episodes of breakthrough seizures, which have significantly worsened her condition, affecting her speech and memory. The issue I face is related to my job with a government institution, which requires me to file income tax returns for my mentally challenged sister to continue receiving her medical benefits. However, to file these returns, I need a bank account in her name, but she has no income, and I provide for all her needs, including food, clothing, and medical care. Unfortunately, no bank is willing to open an account for her without formal guardianship. The guardianship case in my district has a pending timeline of 2 to 3 years. I would like to know if, for the purpose of securing guardianship, I need to demonstrate that my sister has a share in the flat, and how I would go about dividing the share, given that my father paid one-third of the flat's cost and is listed as a co-owner. My sister is currently 51, and I am 54; I have been responsible for her care for nearly 28 years. Any guidance on how to proceed would be greatly appreciated.
Asked 1 year ago in Property Law
Religion: Hindu
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6 Answers
its a considerable long time, case in pending, better obtain directions from HC.
Since the case is pending before court for appointing you as guardian to the physically challenged sister, you may have to wait for the court's decision on this, and you cannot take any decision before obtaining court order.
Your sister is entitled for a share at par with you in respect of your father's share in the property, hence to manage her share in the property, you may have to obtain court order by appointing you as her guardian to take care of her as well as her property.
Have you already filed a guardianship petition?
There is a Right of Persons with Disabilities Act 2016 under which tribunals are set up to deal with such cases
However to my knowledge so far no tribunal is constituted under the above act
So a writ petition can be filed in the High Court invoking its parens patriae jurisdiction seeking your appointment as a guardian of your younger sister with the consent of your other sister
I assume that you 3 are the only heirs of your late father
The guardian would be required to be appointed for opening a bank account in the name of the younger sister and for transferring her share in the flat which is jointly owned by you and your late father
Please note that even if your father had contributed only 1/3rd of the purchase price , in absence of any mention in the sale deed about the % holding of the co purchasers , it would be deemed that both hold equal undivided share in the flat , unless you can prove in a declaratory suit that your shareholding in the flat is more than that of your father
So taking the late father's share in the flat to be 50%, that share will equally devolve on his 3 children and upon your elder sister giving up her claim in the flat , the said 50% will go to you and your younger sister equally. Thus in effect you would become 75% co owner and your younger sister 25%
Dear Client,
I would like to let you know that,
The flat is situated in a property co-owned between you and your deceased father, and falls under the Hindu Succession Act, 1956. Since your father died intestate, his share in the said property would be distributed equally among his legal heirs, that is you and two sisters. Under the Act of Mental Health Care, 2017, one may file for guardianship for a mentally challenged sister who shall explain that condition and the role played by a person as a caregiver. The same may be filed under the Guardians and Wards Act, 1890. Once you gain her guardianship, you would have all rights to administer her share in the flat, if so required, and open a bank account in her name for filing her income tax returns and ensuring continued medical benefits. Distribution of assets would indeed be relevant during the process of obtaining guardianship in order to show that you have been responsible in managing her share, but your primary aim is to establish her inability and your status as guardian. It will be wise to consult a legal professional with experience in family or guardianship law to help you through this process.
Thank you.Hope this answers your query.
Dear Sir,
First get guardianship certificate from the court. You may approach High Court for early disposal of your pending case. Direction will be given to be Trial Court. In the capacity of Legal guardian you can open bank account in her name.
