Partition of properties of mentally ill person
Advocate Ravinder
(Querist) 23 June 2014
This query is : Resolved
To all experts,
A Hindu father is having self acquired properties both immovable and movable. He is aged about 95 years, not able to understand what is happening around. He is mentally ill and suffering from one type of mental illness. Sometime he is not able to recognize his children and wife also. He has three sons and one daughter. The father has to perform his nature calls with the help of sons only.
In these circumstances, the sons and daughter want to partition the properties. Can they partition the properties. Will they have to take court permission. What is the procedure.
I request the learned experts opinions in this aspect.
Parthasarathi Loganathan
(Expert) 23 June 2014
Please get a medical opinion certified from a Class I Gazetted Doctor from any recognized Government Hospital and file an application before the court to establish legal representation for and behalf of the aged father.
Dr J C Vashista
(Expert) 24 June 2014
Wait for the rest of life of the father, then file suit for partition.
Sankaranarayanan
(Expert) 24 June 2014
Yes this is not the time for it. Service to father and wait
Rajendra K Goyal
(Expert) 24 June 2014
Agree with the expert Dr J C Vashista ji.
ajay sethi
(Expert) 24 June 2014
dont be in a hurry . do so after father demise
Advocate Ravinder
(Querist) 24 June 2014
But the problem is that most of the father’s properties are open lands and there are numerous attempts of land grabbing by unsocial elements. Taking lenience of the condition of the father, the unsocial elements have even created false and fake documents to file cases against the Father with an intention to grab the land.
For protecting the properties the children have to file a civil case and has to obtain injunction restraining the land grabbers for which lot of money has to be spent for court expenses and Advocates and misc expenses. Who has to bear these expenses.
Apart from that there are some buildings which need renovation as the plastering and ceilings are falling and there are repairs to be done to the bore well and motor which is not working.
In these circumstances how can the children sit idle. Is there any provision that a part of the property can be sold out with the permission of the court, so that with the help of that amount the properties of Father can be safeguarded.
malipeddi jaggarao
(Expert) 24 June 2014
In such case only solution either for partition or part sale is as suggested by expert Mr.Parthasarathi. Either for sale or partition, it has to be seen that he is in sound mind. He can execute specific power of attorney in favour of one his legal heirs to perform specific work and this should be backed the medical certificate as suggested by Mr.Parthasarathi.
After his demise intestate (without Will) the legal heirs will inherit the property as per their shares, at that time, they partition the property or sell ti alway.
Advocate Ravinder
(Querist) 24 June 2014
@M.Jagga Rao
Sir, when he is of unsound mind, how can he execute power of attorney. It is invalid as per Contract Act. Can we sell some part of the property with the permission of the court.
ajay sethi
(Expert) 24 June 2014
any of children can move court for being appointed as guardian of father on account of his ill health
malipeddi jaggarao
(Expert) 24 June 2014
That is the reason why unless the fitness certificate is attached the POA is not valid. The unsoundness may be in spells. When he is in sound mind, you can obtain the certificate and do the needful. Othewise you may have to request the court to appoint guardian for your aged father to deal with his properties.
Biswanath Roy
(Expert) 25 June 2014
SUBMIT APPLICATION IN THE CIVIL COURT BY ALL SONS AND DAUGHTERS FOR APPOINTMENT OF A GUARDIAN OF THE UNSOUND MIND FATHER AND MANAGER OF THE ESTATE.
T. Kalaiselvan, Advocate
(Expert) 26 June 2014
An application before the court along with a medical certificate certifying the old man's ill mental state or mental health, by any son or daughter of his to appoint himself/herself as his guardian to manage transact of any kind with the entire properties lying on his name, after permitted and appointed by the court as guardian, this will enable his wards to proceed with the partition/disposal of the old man's properties on the guidance of the so appointed guardian/manager. This can be a better solution for the present or else one has to wait for the old man's departure for heavenly abode.
Biswanath Roy
(Expert) 26 June 2014
Guardianship of an unsound mind person or mentally ill person has no right to dispose the subject immovable property and cannot partition the property without any written power of the owner viz., POA Whereas, the Manager of the estate can mutually apportioned or allocate the portions of immovable property among the sons and daughters temporarily for the sake of better administration of the estate.
