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Ravi Darisi   23 January 2022

Inherited property exclusively occupied by co-owner

Sir, I am a male, 65 years old. My deceased brother's wife has been staying with my parents for 14 years. It's 2 years since my father passed away and more than 1 year since my mother passed away. My father has left a Will (unregistered), saying that myself, my 3 sisters and this sister-in-law are to share the property equally @ 20% each. My sister-in-law is still continuing to occupy the said flat. I believe, being a co-owner only and not sole owner, she is required to take permission from all co-owners to continue to stay and use the property and the furniture and other articles left behind by my parents, on such terms as may be mutually agreed. Please advise if my above views are right? Also if I can approach a Court of law for declaring her as an illegal / unauthorised occupant, liable to be evicted? Please guide. Thank you.


 11 Replies

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     23 January 2022

Will gives rights over ownership of the property only and not necessarily on the tenantship.  Is your sister-in-law staying alone on the property or is she staying along with the other four of you and perhaps your families?  According to the succession act, as your brother pre-deceased your father, your brother's widow would have had no right over her father-in-law's property. But it was the graciousness of your father the he willed 1/5 of his property in favour of his son's widow also. As she has 1/5 share of the property she has the right to stay in the house. If you want her to vacate the house, all five of you have to arrive at a settlement which compensate's your brother's widow. 

Existing laws and public opinion will rightly favour your brother's widow.

Advocate Bhartesh goyal (advocate)     23 January 2022

Yes, This fact of will of your father should bring in notice of your sister in law  and as per will of your father you ,your three sisters and your sister in law have equal shares in house and are entitled to use and ocupation as joint owner of house.If she refuse then you or your sisters may file suit for partition against your sister in law.

Adv. Mohit Chahal (Advocate)     23 January 2022

First case, If that house was inherited by your father from your grandfather then it was ancestral property in the hands of your father and he had no right to make a will for that house. You may file suit for declaration in Civil Court and make your 3 sisters and 1 sister in law as defendant in that suit.

Second case, if that house was purchased by your father then it was his self ocquired property. And He had right for making the said Will. You need to file suit of partition in civil court and make your 3 sisters and 1 sister in law as defendant in that suit. You may seek appropriate decree to sell that house and divide the money in five equal shares

Mohit Chahal
District & Sessions Court, Hisar
Ph. No. 9968911099
1 Like

Dr J C Vashista (Advocate)     24 January 2022

I agree with experts.

Findout /disclose status qua title (self-acquired or inherited) of the flat/property bequeathed by deceased before forming proper opinion and oblige.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     24 January 2022

Even if the house was inherited by your father from your gransfather or other ascendant and if there were no co-owners for the property along with your father, he had the full right to will it. Your brother's widow was not natural heir under succession law as your brother had pre-deceased your father. Still your father thought that she should be given a share in the property and looked after. I say that was his greatness. He was not heartless. In our society the condition of a young widow with or without children is pitiable. Her father may care for her if he had the means. But her own brothers may abandon her. From what you have disclosed, it is not clear whether she has children  or is staying alone in the house with no one else sharing the accommodation or whether you or any of your sisters with or without family are also sharing the accommodation. She has been staying in the house for the past 14 years after her husband's death. Legally speaking you cannot dislodge her from the house against her will. If you want, you or your sisters can claim the right to stay in the house along with your sister-in-law. Alternatively you can claim your share in the property through partition.  It can be a portion of the house or by sale and sharing the proceeds.

It is necessary to take a humanitarian view in this case. You must ensure that your sister-in-law is properly taken care of with a reasonable place to live. It is unfortunate that lawyers are advising you of the legal position only and not about doing justice. Think of your late father. He wanted that your sister-in-law should be taken care of  at least with regard to accommodation. You respect his memory.

Ravi Darisi   24 January 2022

Thank you Mr. Ramani for your prompt response and further update on the matter. The property under discussion is my father's self-aquired 2,000 sft 3-BHK flat. My sister-in-law owns another 2-BHK flat nearby that she has let out since more than 10 years. I appreciate your concern about being humanitarian. She has a daughter, employed in another city; since more than 1 year, her daughter is staying with her due to work-from-home. My other 3 sisters and myself are all residing in our respective self-aquired properties in different cities. 

My query is whether I can approach a Court of law for declaring my sister-in-law as an illegal / unauthorised occupant, liable to be evicted, for the reasons that she has not taken permission from the remaining co-owners including myself to continue to stay and use the property and the furniture and other articles left behind by my parents, on such terms as may be mutually agreed. Please guide. Thank you.

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P. Venu (Advocate)     24 January 2022

Your sister-in-law is not an unauthorised or illegal occupant. 

The property is jointly vested with all the benefieries of the Will. However, the property being a flat, is not partible. The best option is in an amicable settlement. Else, the Court could be approached under the provisions of the Partition Act.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     26 January 2022

As  Advocate Venu says your sister-in-law is not an unauthorised occupant. She cannot be evicted on that count. Her right over the property is equal to that of each of you and your 3 sisters. If she is evicted on the count that she is only part owner, none of the rest of 4 can stay in the flat for the same reason. What do you propose to do after your sister-in-law vacates the flat, sell it and share the proceeds, give the flat on rent and share the rent or leave it locked up with no one staying there and all 5 of you sharing the cost of maintenance?  It is true that your sister-in-law and her daughter, the two of them do not need such a large flat. It is also possible that your niece gets married in due course gets a family of her own and all of them claim permanant tenancy under the law of limitation. But just for the reason that she is only a part owner, she cannot be evicted under the law. What do your 3 sisters think?  You work out a proposal, all 5 of you get together, discuss and arriver at an amicable solution. If necessary involve a knowledgeble well-wisher as mediator. 

Ravi Darisi   27 January 2022

Thank you, Shri Ramani, Advocate Bhartesh Goyal, Advocate Mohit Chahal, Dr. Vashishta and Advocate Venu for all your time and inputs in the matter. My sister-in-law wants to continue in that flat. All my 3 sisters are also in favour of the same. I myself am okay and not averse to it. My 3 sisters have decided to transfer their respective shares of the ownership rights to her for a nominal value. I, however, am seeking 20% of the price it would fetch when sold to anyone at arrms length. We could not come to an agreeable value. Therefore we engaged an independent valuer. He gave a value lesser than the value at which an actual transaction has happened, around the same time as my mother's death, for another similar flat in the very same building. Reluctantly, I accepted it and offered to sell my ownership rights on the basis of the lesser value given by the Valuer. For reasons best known to them, it was not agreed. During one of our group video calls, I mentioned that my sister-in-law, being a co-owner only and not sole owner, is required to take permission from all co-owners, including myself, to continue to stay and use the property and the furniture and other articles left behind by my parents, on such terms as may be mutually agreed. She should pay me some usage charges, say equivalent of 20% of the monthly rent other flats in that complex are fetching. My sister-in-law flatly refused. She said she's not going to pay - do whatever you want. I got to know that one of my mother's sisters told them that since my sister-in-law took care of my parents, she should be getting a higher share; in her view, I should just give up and say that I am fine with whatever she wants to give me. 

It is under these circumstances, that I have approached this forum for guidance. I feel it is not possible to realise due value, when we are not placed evenly. So long her hold on the flat remains undisturbed, a fair value cannot be agreed upon; my efforts would like begging.

Seeking your views and guidance, please in the light of the above. 

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Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     28 January 2022

Our scripttures say that when a dispute arises and when the opposite party is unreasonable you adopt first saam, next Daan, then Bhed and finally Dhand. You have tried Saam and Daan and they have not worked. Now you try Bhed. You send her a lawyer notice saying that you want partition of the property and your own share. If she doesn't come around, actually file a suit along with your sisters or alone. Courts may take a long time. But your sister-in-law also may have to engage a lawyer and spend money to fight in the court. She may then come around for an out-of-court settlement. If she does not respond positively for the lawyer notice, actually file the case. If you file a case to evict her, you may not succeed.

Ravi Darisi   29 January 2022

Thank you, Mr. Ramani and Team Lawyers Club. I shall keep this in mind and proceed acordingly, as the situation emerges in due course of time. I shall get back / revert when any development takes place. Required documents have been submitted with the local authority and we are awaiting their NOC, right now, for mutation of the property in our names in the relevant Government records. We are told it may take about an year for this. I would still like to say that it is really unfortunate that I can't hope of unpossessing someone who is occupying and enjoying our property without our permission. 

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