Anita Tawde (Coordinator) 20 February 2012

Possession of flat

Dear all,

Need your valued inputs to resolve my problem.

I am the youngest (sister) in the family of 4 siblings ( 3 sisters and 1 brother). I had bought a 2BHK in 2003 on a staff loan then. Since my elder two sisters were married and my brother working abroad my parents moved from our family house to my house. In 2007 I got married and since my husband also owned a 2 BHK I gifted this flat to my brother. The gift deed was registered and the house was transferred in his name. The mutual agreement was that my parents will stay there and he will take care of them. I did foreclose the loan before transferring the flat. Subsequently he got married in 2009 and his wife stayed with him (abroad) for few months and then returned back. She is staying with my parents in Mumbai. SIL is not taking good care of my mum too. My father passed away in 2010. However, things are not working out between my brother and her. They do not have any kids too.

As per my mutual understanding with my brother since she was not able to take care of my mum. we have transferred this property back in my name as a gift deed and also registered the same. the socitey formalities are also done. However, I'm not sure how do we go about asking my SIL to leave the house as as per past behavior I don't think she will easily move to my parents house which is a smaller self sufficient flat. My mum will stay with me and I intent to give that flat on rent.

Please give me the procedures to legally give her notice and ask her move out of the house. Legally can she claim a share in this flat.

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2 Replies

Shantilal Pandya ( Advocate) 20 February 2012

Some points are requred to be clarified

Whether the first gift deed includes that the gift is conditional one ? if not then your SIL may object to reconveyance through gift deed saying that the transfer is gratuitous and the property is burdened with the right for her to reside in , in which case you may not be able to secure possession .

, interpretation of both the gift deeds would frunish some clue how to proceed with the problem .Oral evidence for the conditions imposed with the first deed may not be allowed by the court .however circumstance for reconveyance and the contents of the second gift deed may help to some extent ,how ever you can with prior notce file a suit for recovery of the flat in question joiing your brother as a co defendent with SIL . it may be that the reconveyance by gift deed was within knoweldge of your SIL and her not objecting may amount to consent for retransfer. but in any case she may file proceedings against your brother for maintenance which may include provision for residence as well

Anita Tawde (Coordinator) 21 February 2012

thank you Mr. Pandya for your prompt response below are my clarifications.

1) While we prepared the first gift deed the agent mentioned that you cannot have conditional gift deed hence it was not included in the gift deed. However, it was mutually agreed on a plain paper signed by witnesses within the family and one family friend

2) The second gift deed was executed without her knowledge because of her irrational behaviour

However, my brother has been giving her maintenance money seperately in her account. She can shift to our family house in that case. We do not have any issue with that. My brother will be paying her all the maintenance.

Once she moves to the family house in future can she still claim the possession of this flat. As both my brother and my SIL have not paid any money to acquire this flat.

Thank you so much for the help.

Reagrds,