Property left w/o will
Sundar
(Querist) 31 March 2018
This query is : Resolved
My father died in 2011 leaving behind a wife and 2 adult children - me and my married sister. My father has a house in Mumbai in which I have been living for the last more than 35 years. My father shifted to Pune and was there till the last.
I have transferred the flat jointly in the name of all 3, being the legal heirs, recently.
Now my mother and sister are demanding compensation for their share of the property either thru outright sale of the property (which I am not willing to do right now for at least the next 3 years), or by buying out their share which again I am not inclined for considering the cost to be incurred and the age of the flat. If I decline either of the 2 options above, they are demanding rent for the period since my father's demise for their share. My father never made any such demand of me when he was alive.
The question I have for the legal experts is that legally can they demand the rent from me for the period since my father's demise till date, as the flat then was not in the names of either of them (since it has only recently been transferred in the joint names), nor is there any rental agreement between me and my father.
Can a court force me to sell the flat if the other 2 partners gang up against me and take a majority decision to sell the flat?
Will the court accept my request to defer the sale of the flat for some time at least , in which case what compensation would be payable to the other 2?
Vikas Hedau
(Expert) 31 March 2018
They cant force you nor they can collect rent from you as you all are co owner of each square inch of flat, an for sale they can sell their share but not without partition suit each of them have equal 1/3 share
Guest
(Expert) 01 April 2018
@ Mr/ Vikas Hedau,
If mother and sister are the co-owner of the house, why they can't charge the rent for their portion being used by Mr. Sunder?
R.Ramachandran
(Expert) 01 April 2018
All the three of you have interest in the flat right from the date of the death of your father.
The flat was not in the name of the mother/sister is irrelevant. By that reason, the flat was not even in your name.
The mother/sister are right in demanding to sell the flat. If you can buy out their share it is OK. Otherwise you have no other go.
If you want time to buy out their share, then you should be prepared to pay rent to the extent of their share i.e. 2/3 of the flat.
Whether there is any agreement for rent is there or not is again irrelevant.
If they approach Court, court will rule in their favour for partition of the property. If it is not partible, then to sell and to distribute the sale proceeds.
Dr J C Vashista
(Expert) 01 April 2018
Discuss the issue(s) with your mother and sister for an amicable settlement and try to resolve it "out of Court" otherwise, you will have to pay their share, which they are legally entitled for the period of limitation.
Guest
(Expert) 01 April 2018
Repeated query, as at the following thread:
http://www.lawyersclubindia.com/experts/Intestate-property-676961.asp
Guest
(Expert) 01 April 2018
Repeated query, as at the following thread:
http://www.lawyersclubindia.com/experts/Intestate-property-676961.asp
Guest
(Expert) 01 April 2018
First of all, in my view, yours does not seem to be a real problem, but an academic problem only.
However, if your description is true for any real life problem, agreement or no agreement, your mother and sister having the same right, as you have on the property, you will have, either to partition or sell the property or pay rent for their share of property.
Please be aware, you are not the sole beneficiary of the property. You cannot impose your wishes on the other legal heirs and the beneficiaries of the property.
The cheapest and practical solution for the problem is to pay the due market rent to your mother and sister. Apparently, this situation would not have arisen had your attitude towards them would have been respectful.
Vikas Hedau
(Expert) 01 April 2018
@JIGYASU:Legal analyst ----------Because it is admitted position that they are co-owners of that disputed flat, and it is well settled law that till partition all the co-owners have equal share in each square feet of property that is why other co owners cannot collect rent, secondly son is also owner and he cannot be a tenant in that premise. All that mother and sister do is File a Civil Suit For Partition of flat or they can also sell their 1/3 rd, 1/3 rd of property share in flat
Guest
(Expert) 01 April 2018
If All the Legal Heirs are Not Living in the same Premises the Proportionate area could be Locked by them basing on their Rights or else the heir who resides their with 1/3rd of the Rights should pay the Rent to the Owners of 2/3 rd of the Rights Or the Best and Legal option would be to sell the property and equally shared between legal heirs..If the son alone lives in the Property of 3 owners he is Liable to pay the Rent to the Owners of 2/3rd of the Property Please.
Guest
(Expert) 01 April 2018
Mother would be a Senior Citizen and her Pleadings would be heard on Priority. A simple Police Complaint by them would get them accommodated there In Their / Her premises.
Guest
(Expert) 01 April 2018
The Sister is married will not her husband Question her about this property. It is also her home and with a simple police complaint she could get her possession..Women can not be chased away simply just like that by brother or husband please
Guest
(Expert) 01 April 2018
Amicable settlements would be the best remedy..I differ with the opinion of Advocate/Expert Mr.Vikas Hedau
Guest
(Expert) 01 April 2018
@ Mr.Vikas Hedau,
All the innocent sufferers cannot be hoodwinked all the times in the name of settled law. If the sole occupant heir, but not the beneficiary of the whole of the property is not taking care of the other heirs, he does not have any right to keep the whole of the property in his illegal possession.
Rather, the mother can legally claim maintenance charges from the son, besides the mesne profits for the property held against her wishes. The sister has also the right to ask for her apportioned share, or the mesne profits, or the price for her portion held by her brother.
Guest
(Expert) 01 April 2018
@ Mr. N.J.S. Rajkumar,
Here I must appreciate your rational approach towards the present problem.
Guest
(Expert) 01 April 2018
Mr. Vikkas Hedau,
Why civil suit is necessary for all the problems? If the mother and sister opts for civil suit, do you believe that the querist would win the case on her unacceptable conditions?
He is not ready to pay the price of the shares of their kins, he is not ready to pay the rent for their portion of property held by him, he may also not be ready to partition the property, but wants to enjoy the property in full against their wishes. Rather, in the absence of any mutual settlement, he may end up with payment of maintenance charges to her mother in addition to the price or apportionment of the property.
Sundar
(Querist) 02 April 2018
I think my query has been interpreted wrongly by most of the legal experts here (except for Mr. Vikas Hedau), and esp. Mr. Dhingra. Apparently most of the people haven't read the last 2 lines of my query, which still remain unanswered.
I have never said that I don't wish to pay their share of the flat. It is that I am only asking for time to shift the family to another location considering children's schooling and education. You can't just ask someone to sell the house in which one lives and move somewhere else one fine day. I have stated this very clearly to them but they are demanding immediate compensation, apparently out of sheer greed (talk about respect for them Mr. Dhingra).
Also, if I had any ulterior motive, I would never have initiated the joint transfer in all the 3 names, isn't it? I could very well have left the flat in my late father's name and this situation would never have arisen.
My immediate query still remains - can they demand rent with retrospective effect, considering that the house was still in the name of my father during that period? And if the rent is indeed paid, should that not be considered as compensation to them during the period for which it is paid and subsequently reduced from their share when the flat is eventually sold.
Vikas Hedau
(Expert) 02 April 2018
No they cant claim rent.
Guest
(Expert) 03 April 2018
@ Mr. Sunder,
Since the reply of Mr. Vikas Hedau is proved to be pleasing to your mind, so you considered that only he interpreted your query correctly, while all others interpreted wrongly.
Mr. Hedau made mention of some settled law, but has not referred the same even on asking.
So some people like you get lured only by the pleasing advice, may that be totally wrong, instead of the factual legal advice, but have to end up only with repentance after they lose their cases in the courts of law, besides waste of their precious time.
If you wanted time, why did not you take help of the elders and family friends to request your mother and sister? A person comes at this forum only for legal advice, not to hear merely pleasing replies. If you did not feel the need of any advice as per the provisions of law, your query was not fit to be asked at this forum.
Rest assured, nobody would have any objection, if you hire services of Mr. Hedau, if he assures you to win case for you.
Best of luck!
Guest
(Expert) 03 April 2018
Mr. Sunder,
If you want time only, when your mother and sister are ready to give you time by paying rent, what is the hitch in availing that opportunity. They are entitled to claim rent for usage of their portion of property.
Even otherwise, give a thought over the fact, would it be prudent on your part to waste huge money in lump or in installments on a court case, or to pay small amount of monthly rent, when ultimately you will have not only to lose the case but also have to pay the accumulated rent in lump sum for the others share of property?
Option is yours, whether you prefer to adhere to some pleasing reply or to act according to law.
Sundar
(Querist) 03 April 2018
Mr. Jigyasau,
I don't know what has made u get the feeling that I am only looking for pleasing replies. I have stated the situation as it exists. And my understanding of the replies posted in this forum by legal experts. No 2 people think alike. So it is better left to the individual's judgement as to what he/she feels is correct.
And I see that you are only commenting on other's replies without stating any opinion of your own. This forum is meant to hear the opinion of legal experts, not comments on their opinions. So let's stick to that. I would like to hear your legal opinion (not comments on other's views), if you have one, on this matter as well.
Guest
(Expert) 03 April 2018
@ Mr. Sunder,
Your own reply is a clear signal that you wanted to hear only the pleasing replies, when you declared all but one to have wrongly interpreted your query. If your own description is faulty, you can't blame others for wrong interpretation of your query.
Further, had you considered your own judgment to be correct, you would not have appeared at this forum for any advice, or would have come forward with options acceptable to you as against the options given by your mother and sister, to get opinion of experts about which one should be beneficially for you, not stating that others options were totally not acceptable by you. Your mother and sister also have the right to decide about their share of property and make their own judgment about your intentions and give their own options. You can't impose your will over them and to keep their shares of property occupied without discharging your own responsibility towards them.
Don't think that only you are right in accepting or not accepting their options and making your own judgment to be imposed on others also. If you have come here the experts, who are rendering selfless free advice, also have the right to judge what is what of the case and what could be the intention of the querist. If desirous of free advice from the experts at the LCI, you can't have any right to dictate your terms, as you attempted in your latest post being critical to my last observation.
Sundar
(Querist) 03 April 2018
Mr. Dhingra,
As you suggest, if I do pay the rent for the usage of the property, when eventually the property is sold, should the rent paid not be considered as the part already paid for the specified period and claimed by me from the eventual proceeds? Please advice.
Guest
(Expert) 03 April 2018
Rent paid for usage of other's property is not reimbursable. You take the benefit of use of the property and they take rent in lieu thereof. So, no question of claim from the proceeds at the time of sale of property.
Vikas Hedau
(Expert) 04 April 2018
First thing. For claim of rent there has to be a landlord tenant relationship. And here in this problem there is no such relationship exists between them. even otherwise they are co owners they can't claim rent from each other neither they are legally entitled to claim such rent, only remedy they got is partition by metes and bounds in competent civil court.
Vikas Hedau
(Expert) 04 April 2018
https://indiankanoon.org/doc/106296928/
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Mr Jigyasu Sir. its just for you.
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In my opinion Rent can be claimed only in one condition when one of co owner is using property in profitable way, like renting, then. in that condition they have 1/3 share each in rent.
Guest
(Expert) 04 April 2018
@ Mr. Hedau,
At first you stated about well settled law, now you have expressed your opinion instead of quoting the instance of well settled law. Any opinion of a lawyer cannot at all be a well settled law, nor an opinion has any relevance in law, if not in pursuance of any law of the land.
It is a clear case of unauthorised possession of the whole of the property without the consent of the other legal heirs. So, he has to settle the case, either by partitioning, selling or paying rent to the satisfaction of the other legal heirs, as per their demand, may that be with mutual consent or through court of law. But in any situation law cannot allow any forceful possession by ignoring the interests of the other legal heirs. He cannot impose his will over the other genuine shareholders of the property.
Guest
(Expert) 04 April 2018
If some one Reads Senior Citizens Act and Women's Rights it would be be helpful please.
Guest
(Expert) 04 April 2018
It is not necessary that relationship of landlord-tenant be established only through an agreement. Nobody can deny the status of other heirs as landlords of 1/3 share of the property each. Establishment of relationship depends upon both the parties, if they want. If the querist does not want to establish the relationship of landlord-tenant, he will have to partition or sell the property to divide the proceeds. If he wants to take some advantage of the property due to his own needs, he must have to pay rent.
Guest
(Expert) 04 April 2018
Some one who had thrown the Mother and Sister Out should pay the Rent to compensate their spending and expenses and sufferings out side.Their Advocate could easily claim it .
Vikas Hedau
(Expert) 04 April 2018
Kindly quote under which law mother and sister will claim rent? as Rent control act cannot be used against co owners.
Guest
(Expert) 05 April 2018
Mr. Hedau,
Rather, insteasd of asking others to quote under which law mother and sister will claim rent, better you quote the law under which they cannot claim rent for the share of property being used forcibly by the querist against their wishes, as it was only you, who stated about some well settled law. You may also prove, if a landlord cannot claim rent for use of his/her property by anyone.
If Mr. Sunder approaches the court of law, he would automatically know, how the lawyer of mother and sister would prove how they can claim rent. He cannot retain their share of property forcibly and then plead that his mother and sister do not have the right to claim rent.
However, if you can guarantee winning of the case for the querist, why not you offer your services to him, so that he may also know to what extent you can fulfill your promise?
Vikas Hedau
(Expert) 05 April 2018
1. (2011) 181 DLT 255 : (2011) 4 RCR(Civil) 417 : (2011) 2 RCR(Rent) 305
S.N. SHEOPURI — Vs. FAB INDIA OVERSEAS P. LTD
2. Mst. Kamta Meneram vs. Damru winner and others, AIR 1964 ORISSA 94,
"it was held that, The expression "mesne Profits", as defined in S. 2(12), C.P.C. is restricted only to those profits which are derived by a person in wrongful possession of property belonging to another, it has no application to profits accountable by a person not in wrongful possession of the property such as by a co-sharer, before partition. "
3. Sonjoy Chatterjee vs. Solil Chatterjee
https://indiankanoon.org/doc/107652617/
Read these Judgements, co owners cannot claim under Rent law it is clear and even cannot claim under section 2(12) CPC as there is no wrongful possession
Guest
(Expert) 05 April 2018
Mr. Hedau,
Although you seemed to have devoted plenty of time in searching of the case laws, but each word has its own importance, which requires your interpretation to be rechecked by yourself only. The property is not partitioned yet. Also, the querist has not mentioned anywhere that his mother and sister are sharing the property by living with her. Hence the property is in wrongful possession of the querist.
However, if you can guarantee winning of the case for the querist on the grounds of the case laws, you should volunteer to take up his case.
Vikas Hedau
(Expert) 05 April 2018
kindly read judgement sir , it is held that it is not wrongful possession. if property was partition and he was in possession of full property then it would be wrongful possession
Guest
(Expert) 05 April 2018
Mr. Hedau,
It is only you, who have to check whether property was partitioned or not in full possession and whether in wrongful possession of the querist or not, when not agreed by the querist for partitioning or sdelling on the demand of the other owners of the property.
Why not offer your services by giving him the guaranee to win the case and get appropriate experience yourself through court judgment in the present case, itself, rather than depending upon other judgments.
