• Share of son in father mother combined property

I am staying in south gujarat. my elder brother an alcoholic and his wife both are misbehaving with us. 

my father is in railway and he collected money by his own hard work and purchased a 4bhk duplex.  but during the paper work of our house .. my father also wrote my mothers name as a co owner in property dastavej. as i mentioned i have an elder brother and smaller sister. 

unfortunately my mom expired last November 2015. on 1st march 2016 we got my elder brother marry to girl of his choice.  but later they both are threatening us. they are not willing to leave the house because they say we have a share in property and all things.

my brothers father-in-law is a criminal and gunda of the town. so my brother and his wife are threatening us on his name. false dowry case..etc...

we just want to throw them out of the house but they say we have rights for the 50% mothers share who died. 

what can be done in this case? pls help me.. maximum replies will be appreciated.
Asked 4 months ago in Property Law from Valsad, Gujarat
Religion: Hindu
1) since your mother was co owner on mother demise her 50 per cent share would devolve on your father , you and your brother 

2) you  cannot evict  your brother  from the house as he has share in property . 

3) it is better that during your father lifetime partition of property is made to avoid legal complications in future 

4) in the alternative your father should file declaratory suit that he is absolute owner of the property as it was bought   from his own savings . that your mother was house wife and had no source of income . 

5) however suit would take some years to be disposed of . 
Ajay Sethi
Advocate, Mumbai
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WELL, i REGRET TO INFORM THAT YOU CAN NOT LEGALLY EVICT YOUR ELDER BROTHER AND HIS WIFE FROM HOUSE.
Since your mother had half share in the proeprty on er death her half share is equally divided among all of you including your elder brother.
So only option is to purchase your brother's share and then oust them from the house. Except that there is no other way out.
Devajyoti Barman
Advocate, Kolkata
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They are right in what they are saying. If your mother died intestate then her 50% share in the property devolved through succession on her husband and children. So your elder brother has a 1/3rd share in the share of his deceased mother. You cannot evict him as he has a share in the property, but you and your father can file a suit for partition to cull out their separate share in the property. 
Ashish Davessar
Advocate, Jaipur
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father can file declaratory suit that he is absolute owner of house and had bought it in wife joint name on account of love and affection . suit would take some years to be disposed of 

2) in the alternative your brother can execute sale deed for his share in the house . make all payments by cheque only 
Ajay Sethi
Advocate, Mumbai
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1229 Consultations
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They cannot be evicted from the house as they have a share in it, but your father can file a suit for partition to physically divide the house.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
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The share of your mother in the jointly owned property shall devolve on all her legal heirs namely, your father, yourself and your siblings.

Thus your elder brother is entitled to 1/4th share out of your mother's half share in the property.

Hence he cannot be thrown out of the property though  you can still lodge a complaint for his atrocities and nuisance with the local police. 

Let his father be anti social element too, but that will not confer him the special privileges to indulge in illegal activities agaisnt you people. 

If he is continuously creating nuisance, you may take up this matter to the superintendent with a complaint under section 154(1) cr.p.c.  

If there is no response from police, you may approach judicial magistrate court with an application under section 156(3) cr.p.c. seeking direction to police to register FIR against the culprits for creating nuisance and torturing you people including threats for life and safety.
T Kalaiselvan
Advocate, Vellore
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how much time it would take to prove that my mom was house wife and all money was from my dad? after that what are legal procedures to get them out of the house.

To your subsequent question the answer is that legally you cannot evict him without giving his share in the property.
If he is not agreeing for money in lieu of his share then there is nothing can be done except filing a partition suit seeking division and separate possession of your share in the property. 
T Kalaiselvan
Advocate, Vellore
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128 Consultations
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However, your elder brother will get 1/3rd share in your mother share i.e. 1/3rd share in 50% of flat, if there is no will written by your mother. generally dowry cases and Dv cases will be against husband and his family members. if any dowry case filed other than or excluding husband i.e. against you, you can easily disprove it.  Better to approach a court of law for partition. 
Lakshmi Kanth
Advocate, Hyderabad
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File suit for partition for division of property by metes and bounds 

2) it may take some years to be disposed of 

3) install CCTV cameras in living room
Of house 

4) father needs consent of other legal heirs to sell the house 
Ajay Sethi
Advocate, Mumbai
23383 Answers
1229 Consultations
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The builder is not a lawyer that he will change the situation.
This was your mother's property hence this will devolve on all her legal heirs whether you like it or not.
Instead of developing the hard feelings and enmity better try to solve the issue amicably if there are some ways to solve it. 
Legal issues will keep stretching till everyone becomes fed up and then arriving at a compromise after a decade when you lost your money strength and time. 
Think.
T Kalaiselvan
Advocate, Vellore
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128 Consultations
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The co-owners can sell only their individual shares in the undivided property. The builder is trying to fox you to sell the property. Affidavits do not uproot the title to a propertt
Ashish Davessar
Advocate, Jaipur
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450 Consultations
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