• Adverse possession

Hi,

I am 30 years old. After living in a 1BHK flat for more than 22 years in a town in Gujarat, my father, my sister and my step mother shifted in a 2BHK flat in 2012 - which was co-owned by my father and me(I was working and living in Pune when they shifted). Unfortunately, my father passed away 8 months later. He had made a will through which I am now the sole owner of the 2BHK flat(now registrated solely in my name). The 1BHK was owned by my real mother, who had transferred the 1BHK in my name through society certificate(Old properties were not registered, ownership was through society certificate).

I had booked a flat on loan in Pune in 2012 where I am presently living with my younger sister. 

When my father passed away in 2013, I got the 1BHK flat renovated according to my step mother's wishes as she wanted to move there. Later she said that she would move there only if I made her the co-owner of 1BHK flat, for which I denied.

When I requested her to move from 2BHK flat to 1BHK(both 1km away), which is sufficient for a person living alone, she filed a case with the local court seeking her right to continue to live in the 2BHK flat. The court has passed an order in her favour, asking me not to move her.

I want to sell the 2BHK flat, which is of much higher value than the 1BHK flat so that I can use the funds to repay my home loan, as well as for the expenses of my marriage as well as my sister's marriage.

1. Is there a clause under which I can move step-mother from one property to another?(both of which are owned by me)

2. Can my step mother claim the ownership of 2BHK flat under "adverse possession"? If yes, how can I avoid that?

Thanks.
Asked 11 months ago in Property Law from Gujarat, Gujarat
Religion: Hindu
as per your question will is valid and solid  document you can show that the last will of your father before expire and you became the absolute of the 2bhk as well as 1bhk by the will deed , you can file the civil suit against your step mother stating that your father had bequeathed the property of 2bhk by will deed let her challenged the will ,
suppressing the fact your step mother might have got the court order you can challenged the same in the appeal .
the question of adverse possession does not   arise in your case.
Mir Mansoor Ali
Advocate, Hyderabad
57 Answers
4 Consultations
Not rated
1) apply for probate of father will 

2) as per your father will you are the sole beneficiary . 

3)once probate is granted you would be absolute owner of the flat . 

4) you have to move court to set aside stay order granted in 2 bedroom flat and offer her right to stay in the one bedroom flat owned by you 

5) your step mother cannot claim any rights of ownership of the flat . she had right to stay in said flat on account of her marriage with your father 

Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
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Since an order of injunction is appeared to be in place you can violate its terms unless it's varied, altered, modified or set aside by higher court.
Since I am not aware of the nature of case filed by your step mother I can not advise on further instructions in court of law.
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
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You missed the bus by not filing for your step mother's eviction. Be that as it may, there are two remedies with you now-either to obey the court order which has restrained you from dispossessing her, or challenge the order of the court in a higher court. Your step-mother cannot claim ownership through adverse possession as there is none.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
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The judgement given in her favor has to be seen for forming a proper opinion about it.
However from your contents it can be noted taht she filed a permanent injunction suit against you to not evict her other than by due process of law. If yes, then you may file an eviction suit against her based on the ownership of the property (i.e., 50% already as a co share and another 50% acquired from the bequeath made through his Will by your deceased father. 




1. Is there a clause under which I can move step-mother from one property to another?(both of which are owned by me)
In your suit for eviction you can very well mention the alternative relief you plan to give to her for her life time and the said offer may be mentioned in your pleadings. 




2. Can my step mother claim the ownership of 2BHK flat under "adverse possession"? If yes, how can I avoid that?
There is no question of adverse possession because this property was already in join holding and the deceased joint holder has transferred the property through a Will, hence there is no question of operation of law of adverse possession in this.  You can file an eviction suit and vacant possession  
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. There is no law/clause by which you can force your step mother to sift from one flat to the other. It is not clear as to on what ground she was allowed to stay there by the Court when the said flat is in your name. File an eviction suit against her,

2. she can claim adverse possession if she is allowed to stay in your property against your wish without taking any action against her for her such staying in your property without your consent,

3. So, file an eviction suit at he earliest against her,

4. Engage a local lawyer having expertise in this field.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
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1) you would not be at disadvantage if you dont move HC 

2) since your step mother is your father legally wedded wife she has right to stay in her matrimonial home . after marriage her matrimonial home was 2 bedroom flat . although ownership of 2 bedroom flat vests in your name as widow your step mother has right to stay in 2 bedroom flat 

3) you have offered her 1 bedroom flat   to stay as per your father will . 

4) ideally your step mother should accept the offer 

5) court fees is state subject . it varies from state to state 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1. You have not mentioned as to  on what ground she was allowed to stay there by the Court when the said flat is in your name and also when the Court did not revoke the probate.

2. This is the moot point of your case,

3. The Court was right in observing that your offering her 1BHK flat to stay is not the subject"/"not in scope" of this case. The subject matter is whether she should be allowed to stay in your flat or not and if yes, then on what ground,

4. You are required to challenge the said order in appeal court and get it set aside since otherwise it will certainly affect your eviction suit,

5. Before filing eviction suit, file an appeal challenging the order of the lower court allowing your step mother to stay in your flat.

 
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
1. If I did not approach the high court for above mentioned case, as it would be expensive, will I be at a disadvantage?
The court's verdict is very clear that your offer for accommodation to her in the 1 BHK flat is not within the ambit of the case hence what is the use of approaching high court with an appeal on a non-existent issue. You concentrate only on the case and your defence.



2. When I file the case for eviction of said property, will the above judgement(which has ordered that she can live in 2BHK flat) be binding in future?
At one place you state that the final judgment is yet to be pronounced and in another place you say that she has been permitted to stay in 2 BHK, which is correct?
  However if court has permitted her to stay in 2 BHK vide its judgement, you cannot evict her, you have prefer an appeal before high court on the basis of your sole title to the property which has been established by grant of probate by the lower court.




 3. Since she had challenged the probate(for which her appeal was rejected - final judgement is still pending), are there still good chances of eviction?
Again contradiction, wait for the final judgement for her appeal.



4a. While filing the case for eviction, what would be the court fee? Do I need to pay the court fee for eviction

4b. If the court fee is to be paid, is it to be paid on the value of 2BHK flat or 1BHK flat or difference of the two flats?

No court fee to be paid for eviction, however court fee differs from one state to another, you may clarify this issue from local court or an advocate in the local. 




T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. An appeal through leave to the High Court would now be belated but it can still be filed. If the delay is satisfactorily explained the HC may condone the delay.

2. The suit for eviction is maintainable notwithstanding the judgment which has been passed against you.

3. The court fee can be disclosed only by a local lawyer.

4. The court fee is to be computed on the value of the property wherefrom the trespasser is to be evicted.

5. References will not help you.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0

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