Criminal trespass and harassment
aravind
(Querist) 06 July 2012
This query is : Resolved
I am a central govt servant with 25 years of active service.
we are three brothers. i am away from my home for last 38 years on account of my service and 13 years prior to joining service on account of studies and professional training.
My Problem.
I have a house (a) in my name. Bought and regd directly by my Maternal Grandfather in my name in 1978 when i wS minor. Besides this i have other ancestral property including House (b) and Agri Land still jointly held by the family except 1/3 agri land (taken forcibly by my brother).
My father passed away in 1995. My mother (77 years old) and two brothers (both younger to me) were staying in my house (a).
For last couple of years, one of my brother has been harassing my mother and other brother for a share in MY House (a) which is in a small town.
His harassment is in violation of following:-
- Terrorizing and intimidation of mother and brother.
- Physical assault and domestic violence.
- Refusal to allow my mother to stay peacefully.
- Whenever i go on leave, he does not give me space in my own house to stay.(by occupying the main
portion and compelling me to sleep in the courtyard or on terrace)
- Constant mental torture of my mother.
- In Jan this year he has willy nilly thrown out my mother and the other brother with his family and children (now they have moved to our ancestral house (b)which is in a nearby village).
- Even after throwing them out, he keeps visiting the other house to harass my mother.
- Inspite of persuation, he is not vacating the my house (a) for my use or renovation, his plea being "how can the house be his (mine) alone , so what if it was gifted by Nanaji".
- He has been unmindful of my mother's fragile health (she is a heart patient).
- He has not only violated fundamental rights and constitutional guarantees, but also violated IPC Secs (intimidating mother and brother and trespass in my house against my will merely because i am away on duty)
- Further he has also violated safeguards applicable to my aged mother under Senior Citizens Rights and Women's Rights.
- He has also forcibly taken 1/3 of the Agri land from my mother.
- During discussions on Division of Property, he has flatly refused to leave anything for my mother ( i mean Agri land or house(a)as a means of her livelihood)
With the above background, my Querries are
- Is my mother not the rightful claimant of my father's entire property for her lifetime (as widow of my father)?
- Can my brother(trespasser) stake a claim in my house (a) if i want to gift it to my mother, after her life time or before?
- Can i not have my house back as i am going to retire soon? If so by what process.
- Can i proceed against him under criminal law for his harassment and violations stated above.
- Can the police refuse to take cognisance of his violations (of IPC, Constitional guranties and fundamental rights, Rights of Women and Senior Citizens) under the pretext that the case is a civil matter (the root cause being forcible stay in my house and denying my mother a place of her choice to live in)
- Can i proceed on my mother's behalf to retrieve the agri land forcibly taken by him and register the entire property (of my late father)in her name as sole heir to his estate till her lifetime (so that my brother does not torture her)
I am a serving defence person. i really don't know how to help my mother and make her comfortable in her old age and protect her from my brother.
please guide me.
ajay sethi
(Expert) 06 July 2012
1)it is unfortunate that your brother is not amenable to reason .
as far as your mother is concerned she can make application under senior citizen maintenance act for necessary reliefs . if agri land is forcibly taken from her she can obtain order to be restored in posession
2)since your father died intestate your mother is one of leagl heirs of property . the children have equal share in property .
3) if your brother has taken forcible posession of house in your name make an application to court for declaration you as owner and for order directing your brother to vacate the premises . since you are a defence personnle and going to retire you cna take plea that you want premises for your residence
4) you acn file criminal complaint against your brother of you so desire
5) if police refuse to take cognizance file complaint under 156(3) before magistarte for inquriy .
6) contact a local lawyer
aravind
(Querist) 07 July 2012
Thank you very much for the guidance Mr Ajay
