You can file suit for partition for division of house by metes and bounds
seek injunction restraining sale of property by your mother
My father died in 2016 and he had a house in lucknow. we are two sons and a mother.
My father has a house on his name in Lucknow. He died in 2016 and property is still on his name. my mother lives in that house and we are two bothers and visit our house once in a year or less.my mother takes rent from the property, she has pension of father. My father has a will in which he has mentioned that there will be three equal parts of house after his death. will is also with my mother which he not giving to us. our relation is not that bad but i had a doubt that she may sell property without my consent. canshe do this?? if yes. then what should i do as a precautionary measure?
Asked 3 years ago in Property Law
Religion: Hindu
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8 Answers
1. Irrespective of your father's testate or intestate death, in view of WILL left behind by your father, the entitlement to the share in the property gets devolved equally into mother and her 2 children, I e., Mother and two brothers.
2. Your mother is entitled to 1/3rd share on par with her two children and at best she can only sell her share of 1/3rd share only and not the entire share.
3. Your mother can't sell the entire property without you and your brother's consent.
4. If there's apprehension in your mind that your mother may sell the property without you and your brother's consent, then submit a objection letter to the jurisdictional Sub Registrar's Office requesting not to register the property in the prospective buyer's name without you and your brother's consent.
5. Also, you and your brother can publish a Public Notice in the English and Hindi language newspapers regarding a move by your mother to sell the property without you and your brother's consent and warn the general public not to buy such a property.
- As per law after the death of your father intestate , his property would be devolved upon all the legal heirs equally i.e. your mother and two sons if no sister
- Hence, you three having 1/3rd share in the property left by your father
- Further as your father has left a WILL , and according to that WILL you have also 1/3rd in the property , then without the consent of two sons , she cannot sell the property and also without taking release deed from you both.
- If , you having apprehension that she may do this , then file a suit for permanent injunction before the court for restraining her from selling the said property .
- Further , if you don't want to approach the court at this stage, then send her a legal notice to give your share in the property and warn her not to sell the house without getting approval from you both.
You can contact me , if further suggestion needed.
Your mother cannot sell the entire property independently without the consent of her children who are all the legal heirs and shareholders in the property that belonged to your deceased father.
If she is trying to sell the property without your consent then it is an illegal act and the sale would be invalid in law.
In order to prevent her from selling the entire property on her own, you may have to file a partition suit seeking division of the property into three parts and to allot one such share to you with separate possession and also to restrain her from alienating or encumbering the property in any manner till the disposal; of the suit for partition. property on her own.
Dear Sir,
1.Under Hindu law, a Hindu male or female can make the will for the property, including that of a share in the undivided Mitakshara coparcenary property, in favour of anyone. This should be valid and legally enforceable. The distribution will be under the provisions of the will and not through the laws of inheritance. Where the will is not valid, or not legally enforceable, then property can devolve through the law of inheritance.
2. Since the property belongs to you as well as per the will, she cannot sell the property without your consent.
Thank You!
She cannot sell the property without your consent as you are a beneficiary of your father's estate as well.
You can file a suit for partition along with injunction application to restrain your mother from creating any third party interest in the property. You can claim mesne profit for the same from the court.
1. She can not legally sell of the property standing in the name of your father unless the property has been willed in her favour by your deceased father.
2. And in the above event, she shall have to obtain grant of probate of the will in her favour from the Court.
3. You can ask for copy of the will and if she refuses, you can file a partition suit in connection with the said property of your father, claiming your share of it.
If you have that fear seek injunction from civil Court against the same
