Eviction of family member

This query is : Resolved 
 

(Querist)
05 December 2018

My mother owns a property in varanasi which was purchased in 2003.It has got 9 rooms out of which 5 has been given on rent.
My mother has given 1 room out of 5 rented one's to her younger brother who is staying in that property with his family since she purchased it.We have not been taking any rent as he not financially so sound.

Recently we thought of selling that property and now my uncle is creating nuisance as he is not willing to vaccate the room and also threatening not to sell it.
What legal action can we take in this regard.


Ashish kumar giri (Querist)
05 December 2018

Eviction of family member

kavksatyanarayana (Expert)
05 December 2018

Consult an advocate of your area for making a complaint and further action.

Ashish kumar giri (Querist)
06 December 2018

But is this a case of adverse posession...

Vijay Raj Mahajan (Expert)
06 December 2018

It's the case of license not lease. The uncle was given the property in question for use for limited purpose being relative that was as an licensee not on rent or lease as tanent.
To get eviction order from civil court for throwing out licensee is much easier than
getting the tenant or lessee out of the property.
The adverse possession against the actual owner cannot be pleaded as both parties were aware of the condition of the license for which the uncle was allowed use of the property, namely he being blood relative with family not having good financial condition he was allowed the property for his residential purpose with his family.

SHIRISH PAWAR, 7738990900 (Expert)
06 December 2018

File eviction suit in civil court. This is not adverse possession.

Kumar Doab (Expert)
06 December 2018

When a relative/ friend/companion created nuisance then 1st of all one should understand that he/she is trying to project some nuisance value.
While the fact there is NO values of nuisance.
Since you want to evict by legal recourse proceed for eviction.
There may not be any adverse possession.
The court, even Apex court has strictly directed on; bad faith Adverse Possession.


Kumar Doab (Expert)
06 December 2018

You may take help for any matter from, elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, community leaders, NGO’s, experienced colleagues, associations, religious scholars/leaders, influential persons, Employee’s/Trade union leaders, help groups for spouses (Husband/wife) etc and find a very able LOCAL counsel specializing in concerned filed of law e.g; Rent/Civil matters as in your case, and well versed with LOCAL applicable rules, precedence, latest judgments etc …. and worth his/her salt, can advise you after examining all case related docs, inputs, evidences on record.
Obtain proper legal opinion in writing!
Avoid acting on your own on hearsay.
One should not fall for IT’s and entities loitering at online portals to allure unsuspecting querists. There are many threads on such instances at LCI also.
Online discussions are not substitute to in person discussions with a very able counsel of unshakable repute and integrity specializing in concerned field of law.
One should not fall for IT’s and entities loitering at online portals to allure unsuspecting querists……the personal details of unsuspecting querists/citizens get stored in databanks/compromised. Such IT’s and entities keep on poping up at online portals with fake and new ID’s after their old ID’s are permanently blacklisted/shunted out and money fleeced from unsuspecting is finished.
There are such very able counsels at each location.
Check for such counsels at LOCAL; Rent/Civil Courts, HC, SC,..
You can also try for FREE legal Aid from Legal aid center (DLSA) that is usually within LOCAL courts complex..preferably from a very able counsel specializing in Rent/Civil matters.
Your counsels may opine that you can appear on 1st date, and obtain copies of petition etc to reply later ….and inform the court that you shall be engaging a counsel and appear thru your counsel….Or your counsel can appear and obtain copies of petition etc and reply later or your new counsel can appear for you.
Your counsels can advise after examining all docs/record/inputs pertaining to your matter and help you. You can also search threads on similar query in SEARCH option ON left Hand side of threads in Forum/Experts section. Having learnt a lesson, remember to consult beforehand for your matters or any matter about which you are not properly informed.
There have many instances of such entities operating with multiple fake Id’s at online portals.


The FEE of all LOCAL counsels at all LOCATIONS is not high/unreasonable as mis-believed by many.
Many counsels even at State Capital/Metro towns do not demand unreasonable high FEE.
IT is rather at online portals that unsuspecting querists are mislead as per many publications, by IT’s and Entities that pose as some Lawyer (actually LIAR) and flaunt/advertise firms that are not Law Firms (Actually LIAR’s Firms) to believe that LOCAL counsels are not knowledgeable..are incompetent.
In Reality the LOCAL counsels win cases in LOCAL courts at all LOCATIONS.
You can go thru/search the cases contested by any Lawyer at court website.


Your relative might have already approached a counsel and might be behaving as advised.

Kumar Doab (Expert)
06 December 2018




In the meantime you may go thru;
http://www.lawyersclubindia.com/experts/Property-law-601596.asp
Property law (Property Law)


and act under expert advise of your own LOCAL counsel as already suggested.

Dr J C Vashista (Expert)
07 December 2018

Issue legal notice through a local prudent lawyer for handing over possession of licenced room giving one months time, followed by suit for possession, mesne profits and damages declaring him as trespasser.
Contact, consult and engage a local lawyer having good knowledge of civil laws in Varanasi.

Advocate Bhartesh goyal (Expert)
08 December 2018

I concur the opinion expressed by Dr.J.C Vashista.

Ashish kumar giri (Querist)
11 December 2018

Hi thank you all for the above information
Just wanted to clarify one thing the property was bought in 2003 and at that time it was bought by way of demand draft from my mother's father account.
My uncle is stating that he is carrying the xerox copy of the demand draft ,will this create an issue.

Ashish kumar giri (Querist)
12 December 2018

As my lawyer is stating you need to get a proof that your mother has transferred the money that tome to her father account.
Please advise

BAALASUBRAMANNYAMM (Expert)
12 December 2018

Mr. Ashish Kumar,
You are giving one by one real facts slowly. But any how, since the sale consideration was being paid through your mother's father account, your uncle will definitely raise a dispute in this regard. So better to try to solve the issue amicably.

Ashish kumar giri (Querist)
12 December 2018

Thanks we are trying to resolve the issue amicably but they are claiming entire property.
Although the amount was first transfered from my mom's account to her father's account and then dd was issued .
My advocate is asking me for the proof of the above transaction.

Kumar Doab (Expert)
12 December 2018

Succession opens on date of death; by inheritance or by testamentary succession (by valid WILL).
In case of Hindu male dying without disposing her estate/property in her life time by a valid/registered deed the 1st right is of ClassI legal heirs i.e Mother (if alive as on date of death), Wife (if alive as on date of death), sons, daughters……

In case of deceased Hindu woman dying without disposing her estate/property in her life time by a valid/registered deed ClassI,II is not applicable rather nature and source of property matters.

If the property is self acquired/earned/absolute in the hands of Hindu woman the 1st right is of her husband (if alive as on date of death) and sons, daughters…………
If property is acquired from husband side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of husband..
If property is acquired from parents side 1st right is of her sons, daughters…………and if sons, daughters are not available then legal heirs of father..
The need to prove of source of funds may/may not be felt. IT is prerogative of court.

Kumar Doab (Expert)
12 December 2018

One Prespective;
Father can pay for daughter.
Father can gift to daughter and vice versa.You have fact of flow of payment! Obtain infor from bank and if required pursue RTI route or court can order for same.
IT may not be benami transaction.
Look into narration in sale deed or any other letter/document signed by father favoring daughter.
The estate/property in the name of Hindu woman can be her absolute/self acquired property.
If mony paid by father was his self earned/axcquired funds then he could give IT for his daughter and his intent may not be necessarily to craet joint interest in property with his other legal heirs.
A Hindu father can dispose his self earned/acquired estate/property in anyone’s favor ( e.g; his daughter ignoring other legal hiers) in his life time and does not need anyone’s consent for doing so.
Sons/daughters/spouse/mother/father/DIL …have NO forced share in Hindu male’s self earned/acquired estate/property.
Despite the income or NO income or source of funds of Lady as in query, she being title holder can act to manage her estate/property in any manner as IT pleases to her while she is alive….including but not limited to eviction of her brother, sale, gift etc etc .
To approach court is everyone’s right and IT cannot be infringed upon…... including but not limited to your mother and her brother.
While brother of your mother may press that the source of funds was ancestral in the hands of father of your mother and intent was to create joint interest in property ……your mother may press that IT was not.

This could be the thought of your Lawyer contacted by you as in your last posts and hence the advise rendered to you.
You may prefer 2nd , 3rs opinion from your own very able LOCAL counsel as already explained above by showing all docs, inputs and become prolery informed and satisfied on legal recourse, thru court of law.
Obtain proper legal opinion in writing.


In case of Hindu woman brother is not a legal heir of Hindu woman having preferred rights if legal heirs having 1st right are present, as already explained above.


Kumar Doab (Expert)
12 December 2018


Another Perspective;
At any point of time before litigation is started, during litigation your mother and her brother are at liberty to settle the matter amicably on mutually acceptable terms e.g; some payment to said brother as in query or let him stay in said room etc etc …and may register the deed e.g. family settlement deed and thus end the litigation forever.
A seasoned/senior deedwriter can also draft such deed.
If you are confident that you can handle drafting and registering mutually acceptable deed, go ahead.
However, IT shall be appropriate to let your own very able LOCAL counsel as already explained above to draft such deed and defend the interest of your mother and her legal heirs, so as to avoid any future litigation and defeat in litigation.

IF the said brother is neither title holder nor sole legal heir of his father he can not be sole owner and hence must not demand whole property. Until or unless he is creditor and ha s valid charge to recover debt.
Rest is upto your Mother who is title holder.



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