Maintainability of pwdva complaint u/s 12
Guest
(Querist) 20 December 2015
This query is : Resolved
I am assisting a aggrieved lady for seeking right of residence under section 17 of PWD Act
The lady recently retired from her defense services where she was continuously posted outside Delhi.
Now she is being denied entry in her own house
The house belongs to her late husband who expired in 2005
The current occupant his elder brother i produced some will and sought probate but on lady's intervention in court probate was revoked by the court. Now Her suit for challenging will and eviction is also pending with probate trial since 2009 in a civil court.
1. Can PWDVA act operation for rights of residence be stopped because of this pendency? Is not PWDVA act focused on question of right of residence and not on right of title or ownership which is separate jurisdiction, and for which purpose that is to give priority relief to women,this act was promulgated as additional law?
2. The judge declined to take written arguments by lady and insisted on oral argument. Is not it a choice of litigant whether to submit oral arguments or written arguments?
3. Is not written argument more desirable and superior to oral arguments.
Guest
(Querist) 20 December 2015
Thanks. She was not expelled from house but she was living outside at various army postings as you know. In 2005 her husband died in Dehi. After that she stopped going to her home due to cruelty caused by her husbands elder brother and his wife to stop her from coming so they could grab the house. After death they produced a will in favor of her nephews minors at that time. This will probate was cancelled by court after her intervention and now she has suit for declaring null and void pending.
My question is if a suit for property right is pending can it stop award under DWA as latter is focused on right of residence and not right of title. In fact this was very purpose for which DVA was promulgated by Parliament.
My question is can DWA operation be stalled spatially right to residence if any civil suit of property title is pending and probate stands failed
Advocate. Arunagiri
(Expert) 20 December 2015
Wife can get shelter order to a house, wherein she shared accommodation along with her husband.
Also, it is time barred.
My suggestion is to go for civil suit for eviction and possession.
Guest
(Querist) 20 December 2015
As stated above suit for possession and declaring will null and void was filed long back in 2010 after probate was revoked by court. Notices have been given form time to time to vacate the house.
Can a domestic violence offense get time barred?
Dr J C Vashista
(Expert) 21 December 2015
Dear Dr. Gupta,
1. Section 19 of the PWDVA, 2005 provide for a relief of shared household to an aggrieved person which is especially against her husband.
2. In your case the lady was sleeping for more than 10 years, what prevented her to file a suit for eviction of her brother-in-law after death of her husband since the year 2005?
3. Where does the property situate i.e., the State (e.g. Delhi, Mumbai, Kolkata) since the probate of a Will differ.
4. Why and how does a husband (testator) exclude his wife from bequeathing/ devloving upon his Will?
5. Is the property self-acquired by the deceased husband of the lady?
6. I am surtprised to find through your query that a lady recently retired from defence service and remained most of her service time outside Delhi could not get entry in her deceased husband's house? There is some vital information concealed by the lady?
7. You are required to get the truth out and proceed in a professional manner through a prudent local lawyer. If you wish, may contact me at my mobile 9891152939 (3 pm to 8 pm) or my email: majjagdish@yahoo.com, I am practicing in all Delhi Courts/Tribunals/Commissions.
Guest
(Querist) 21 December 2015
Sir thanks for long reply.
1.yes I agree with your observation and that is why I am helping her
2. She is active but helpless. She came to know about death only one year later as she was posted out and current occupants conducted secret funeral without intimating her or even her brothers in Delhi. This man died in haryana while there for a marriage party in company of Current occupants of house. I suspect it was part of conspiracy to eliminate him for grabbing property.
She immediately moved court for revocation of probate and succeeded. Then she filed suit for possession and declaration of will null and void which we suspect was either forged or got signed under duress from deceased.
You can well imagine that as serving officer in remote places she has hardly any time to follow up with police complaint and law suits.
This is harsh reality that jawans who serve country in border areas suffer crimes at hands of their relatives back at their homes.Property , molestation of their wives and so om. Government should wake up and make special legislation to protect soldiers and their properties and honour.
3.Property is at Delhi North
4.It appears if will was not forged, which I doubt at least,then it was made by pressure in her continued absence by her brother in laws wife.This lady with her own relatives used to commit cruelty with her when ever she stayed in her matrimonial even in face of her husband.
5.yes property is self acquired by her husband but lady has invested in it but it was taken from her by cash like routine between husband and wife.She cant produce any proof. While on this subject I am told by DDA top officials that all property allotted from 2001 onward is already deemed joint property with spouse.This house is still at allotment stage as no formal possession letter is issued by society nor it has been conveyed in revenue records.
6.Nothing has been concealed by her in the case sir. I have discussed matter in
details and seen all records. She is helpless and she issued notice to party to vacate part of flat for her as she would be retiring on 1st September but they wont leave possession and have threatened her not to visit the flat.She has planned to move court under PWDVA
7.Iagree with your suggestion. Kindly go through my detailed reply which will further refine essence of case in your mind now and other eminent lawyers here. We request more participation and advise.
I shall forward to her your mobile number if you are in Delhi
A. A. JOSE
(Expert) 21 December 2015
While she has every right to move the cout under the PWDVA, your clarification that "she came to know about death only one year later" itself speaks much about undisclosed facts please. In the normal course, wherever one is posted, information regarding death of a family member, that too one's own huband, cannot be hidden for such a long time ! Perhaps, true facts are yet to be disclosed.
Guest
(Querist) 21 December 2015
Thanks jose sir.
Kindly keep in mind that she was a serving army officer and pasted in J&K when he died. The current occupants with malafied intentions did not inform her or her brothers in Delhi . Then they secretly went ahead AND GOT PROBATE OF A FORGED WILL. They even submitted that she might be dead or alive they dont know. When she came on annual holidays and went to her home she was not allowed and told her husband is on tour. He will contact as soon as he comes. Later when she phoned her lawyer she was informed about death and she filed probate revocation plaint and succeeded with strict observations by Ld Judge against that party.
Kindly dont doubt her integrity.I have checked on these facts already .Let us work on legal advise and solution so she can get her residence order.
