Divorce case of father and property involved in it
Ankur
(Querist) 07 June 2016
This query is : Resolved
Dear Sir
Since 2004 my father has filed divorce case against my mother who was living that time with my father in same house which belongs to my father and purchased by him only.
Practically and frankly speaking neither my father nor we two brother wants to live with mom due to her rash nature and bad temperament.
Question is coming that, my mom is living in that house which belongs to my father only since 2004 when my father filed divorce case while living with us.
The case is still running on and we need badly that property for selling due to financial crunch. Is this possible for us to sale that property while taking consent of court as that property belongs to my father. My father has also made one will in the name of us two brothers wherein he clearly mentioned that property after him will be with only two sons.
I have fear that my mom can sell this property while living their to any third party or anyone can take illegal possession in our absence.
Kindly advise us so that we can take that property in our control.
Thanking you
Kumar Doab
(Expert) 07 June 2016
What is the opinion of your own (father's) counsel? He/she is well aware of all facts of the case.
If there is no injunction to sell then your father can sell.
Your father can leave a WILL.
It shall be better to register it.
Ankur
(Querist) 08 June 2016
Sir, Point is that mom is living there same house since divorce case is filed. Papa left the home and they came to us for living with us. Scenario is, we are paying all taxes and monthly expenses decided by court until final judgement come.
Yeah, court has not talked about this matter yet. We have registered will with us.
Devajyoti Barman
(Expert) 08 June 2016
Since your father is the owner of the house your mother can not sell the house.
However she being dependent wife of your father she has a right of residence over the house and your father can not file suit for eviction.
So either stay in the same house with her and move to other location.
Ankur
(Querist) 08 June 2016
Sir,i am not talking about eviction. We are facing financial crunch just because of her adamant nature. Now we are going through financial crunch so under this circumstances cant my father sell that house or avail bank loan against of it.
Secondly, in case my father wins the case, still he has to share his property with her. What will be a solution of this as we are looking for loan against property or sale as per current need.
Please clarify this.
N R Dash..
(Expert) 11 June 2016
As dependent & legal wife, your mother has every right on the property.
Even though divorce decree is granted, she is entitled for alimony & maintenance, quantum of which would be based on the net worth of your father including the immovable property.
Your father may avail a bank loan on the property, however, would be termed as intentional as the divorce petition is pending & full value would be considered while deciding the alimony.
You can not just sell the house & let the buyer evict her from the house. That will attract criminal prosecutions against you.
T. Kalaiselvan, Advocate
(Expert) 11 June 2016
The property though in your father's name, your mother being his legally wedded wife and fully depended on him, has a right to residence in that property where they both lived together and it is considered as her matrimonial home.
Therefore any attempt to sell the property while she is living there without providing her an alternate accommodation, would amount to an intentional criminal act, so better understand the law and be within the limits of law.
Rajendra K Goyal
(Expert) 11 June 2016
Your mother has right to live in the property in the name of your father.
If your father sell this property, your mother can claim alternate residence.
Kumar Doab
(Expert) 11 June 2016
Your father may offer to provide another/alternate residence.
Discuss with your able counsel.
