Harsha Vardhana R (Project Manager) 03 July 2014

Partition of house - legal guardian for a mentally ill male

Dear Experts,

My father had a house in his name. He died without any WILL. For our parents, we are 3 children - 2 males ( both are unmarried) and 1 female (married -long back in 1975). The sister has 4 daughters.

So when we tried to transfer the home to our mother's name, legal requirements included the signatures(consent) of all 3 children. Finally we got it officially transferred to her name.

Now our mother also expired due to sudden illness. So the home is officially still under her name. So legally all 3 children have equal rights (1/3). Wrt sister, I believe that she can't just gift away the rights in our (my brother and myself) as it a inherited property. She would require the consent of all her 4 daughters.

The complexity is due to the mental illness of the eldest male (57 years old - unmarried - suffering from Chronic Schizophrenia for more than 25 years and declared as 80% disabled by government doctors). He has addictions to smoking and uncontrollable and so has been placed in residential medical center after the death of my mother. Almost all medical experts have opined that he needs residential treatment till the end.

I (as his younger brother) am trying to get a legal guardianship of him, for benefits like family pension continuation (my father was a government pensioner and family pension was allotted to mother after his death). I am bearing all the treatment costs of him.

Regarding the division of our single home, how does the legal guardianship affect? If we intend to sell the home, what happens to money wrt the 1/3rd proportion of mentally ill person? Is it mandatory to keep it under a FD till his death?

Lawyers suggested to get a joint ownership for all 3 children ( including mentally ill person). That would immediately give me the rights to write WILL for my 1/3rd portion. Else, in case of any unexpected death of myself, can endanger my brother's remaining life and ultimately (after my brother's death) 100% of property would go to sister/her family.

Personally, if I decide to remain a bachelor, I would prefer to write a WILL to donate all my savings/property for social causes.

Please clarify and elaborate on steps that are possible to take.

Regards,

Harsha Vardhana R

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4 Replies

Kappil Cchandna (Expert Bail & Criminal Defence Lawyer at Delhi Supreme Court of India) 26 July 2014

Dear,

No your sister got this property as seprate property and she has all rights to dispose of the same as per her sweet will.

You all 3 can sell the property and there is no requirement as such for putting the money in FD, but make sure that the elder's brother if married then, you will have take the consent of them before disposing of the property.

Truly said by my learned brothers, you can do the will of 1/3 of the property.

Advocate Kapil Chandna

9899011450

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Justin 27 July 2015

I have got very similar situation same as the above post

We are 2 brothers and 1 sister (married)

My father expired one year ago,,and he didnt left any will,we got one gouse in his name ,my brother is suffering from Chronic Schizophrenia for more than 15 yrs ,,he is now 33 (not married) and I am 35 (married) sister is 31 (married) ,Our mother is alive and she lives in the home.I am taking care of all family expenses since last 15 years.Now my brother is admitted in mental hospital and its very expensive to pay every months bill ,I have my own house and I want to take mother with me.The rehabilitation centre is asking 10 lakh one time payment for taking care of my brother for rest of his life.So I want to transfer the owner ship of house tto my name and my mother and sister agree for that .After transferring the ownership to my name I will pay the 10 lakh to the rehabilitation centre and 1/4 amount to my sister ..Already given dowry to my sister during her marriage.

Please advice me what are procedures and documents required to change the ownership of the house to my name as my younger brother is suffering from Chronic Schizophrenia he cannot be present for any signing or official purpose,,what documents I should produce

Please aadvice me need your help urgently

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Harsha Vardhana R (Project Manager) 22 September 2015

Justin, I can sympathize with you but the law doesn't value your informal expenses.

As per my own searches and meetings with legal folks etc, I can say that you need to go very cautiously. The property has 4 copercerners (include your mother too). Just because your mother and sister have agreed, you can't dispose off your brother's property.

First, get a guardianship of your brother from a district court (check the law as per your state) and a legal permission to sell his part of property again from the court! But since he is just 33, courts wouldn't easily consider your petitions.

For a practical approach, why not get the other 2 property-holders legally gift their parts of the asset so that you become 3/4th proprerty owner. Beware, just a word-of-mouth wouldn't be sufficient. Legally gifted is the only accepted formula.

All the best. Tread carefully but quickly

adv.raghavan (Advocate,9444674980) 23 September 2015

Mr.Harshvardhan, Get appointed as guardian for your elder brother with permission of the court, and seek permission from the court for disposal of property and you can take a call as per court advice on handing of proceedings with regards to brother share. You can go for WILL for your share, and as a guardian you can inform the court in case of un expected demise of yours, the court can refer your brother to any rehabitation centre, which the court opts for or your sister can be made guardian in your absence.