About transferring ownership to my son
I am 38 years old. My divorce was concluded on (01/01/2015). I have a son who is 8 years old. His custody was given to me. Due to my Ex’s misbehavior and some habits made me do so. We bought one flat combine and that house was registered on his name. I got re-married on 07/07/2015.
But all of sudden my Ex died with massive heart attack on 01/09/2015. Before he died he told me he wanted to make our son a sole owner of that house. I have his tele conversation recorded with me in which he has mentioned his wish very clearly.
As per our decree judgment I will get 50% amount of that house if it’s sold by him. And as per given judgment my Ex cannot sell that house without my consent. But now he is no more. He didn’t make any will or he didn’t declare any nominee behind him. And now his parents and his sister are trespassed that house by bifurcating my son. I tried to stop them by sending legal notice. But some Society members and his parents are not entertaining any of the notice sent by me.
Till now, even after his death, I am solely taking care of the repayment of a remaining EMIs for home loan. Now a days His parents are even trying to sell that house without my consent. Regarding this I tried to made society aware of our decree judgment. But they are also not taking a note of it for some reason.
This is first time, I am facing such legal situation in my life. Due to a big negligence of my Ex, my son is getting neglected by his grandparents from his birth right on that house, which is hard for me to digest. I am well earning working woman and I don’t want anything for me. But I want to secure our efforts for our son for his future. That house was solely bought by us (me and my Ex).
So I just want to know how can I stop them by selling this house and how can secure this house to the rightful owner, is our son.
Waiting for your valuable reply,
Asked 2 years ago in Property Law from Greater Mumbai, Maharashtra
Your son being a biological son of your ex-husband, he has right in the intestate property left behind by his father. Since the house property is jointly owned by you and your ex-husband, you already have 50% share in the said property. Besides your son, your ex-husband's mother (if alive) has an equal share in her deceased son's intestate property. Since you are the mother of your minor son, you have all the rights as his guardian to protect his interests in the share out of the intestate property left behind by his father.
Therefore you should file a suit for permanent injunction against the defendants from interfering in your possession and enjoyment of your share in the property as well as your minor's son's hare in the property, this suit can be filed on your behalf a well as your son's behalf by you.
You should issue a legal notice to the secretary of the society asking him to restrain from transferring the shares of the property to a third person and also stopping him from giving NOC for a sale by any third person. The secretary of the society may be impleaded as a defendant in the proposed permanent injunction suit.
1) since your ex husband died intestate on his demise his 50 per cent share of the house would devolve on his mother and your son
2) your in laws cannot sell the house as you are joint co owner of the house having 50 per cent share . Yiur signature on sale deed is required
3) mere tel conversation of your ex husband wherein he told you that your son should be sole owner of the house is not sufficient to make yiur son sole legal heir of the house
1. The ownership of the property was joint when it was purchased. After your ex's demise his mother and children succeeded in equal proportion to his share in the property. Since your ex husband failed to reduce to writing in an instrument of transfer of property his wish to make your son the sole owner of the property your son cannot get the absolute ownership except if his grandmother transfers her share to him.
2. There is no trespassing into the property as your son's grandmother has a share in the property. She can permit anyone to reside in the property. You can on behalf of your son file a lawsuit for partition to cull out his share in the property.
Well forget the decree of divorce. On the death of your ex husband your son inherited all his property in equal half share with his grandmother mother. Had you been not remarried then the property would have been divided into1/3rd share taking you into account.
Anyway to give your son his due share in the property you in the capacity of her legal guardian can file a suit for partition and injunction so the property may not be transferred depriving his half share.
After the demise of your Ex husband ,50 % of his share of the house would devolve on his mother and your son .You have only 50% share in the property. So the grand mother is not considered as a trespasser. Now only the remedy is settle the matter amicably or file a partition suit .Not for get that once your ex husband is son of Grand mother. Now the batten handed over to you and your son.
May be bad events had happened with Ex husbands parents in life even though settle the matter amicably and peacefully.
1. The aid flat was registered in the name of your ex-husband,
2. You are now paying for the remaining EMIs,
3. Your son through him is the only legal heir of the property along with his mother(if she is alive). If she dies after the death of your husband then her 50% share will b shared by all her legal heirs,
4. Now file a declaratory suit claiming that your ex-husband has gifted his flat to your son which has been tele-recorded by you and praying for a direction upon the Registrar to register the property in favour of your son by collecting the stamp duty and registration fee required for registering the gift deed,
5. Alternatively, you can claim that the said tele-conversation should be treated as his will and apply for grant of probate of the tele will.