1) under section 44 of transfer of property act co owner can sell his share in property without consent of other co owners
2) in the alternative your brother can file suit for partition for division of house by metes and bounds
Parental negligence by son of a senior citizen
My elder brother is physically and mentally handicapped since 1991. Still , he gave as much support as possible to family with help of his siblings to get his only son post graduate in mass media . He left for studies in 2010 and didn't look back. His mom joined him in 2013 deserting husband to isolation. I am his younger brother , trying to give him stable home. Had to admit him twice in Mental health care centres since January 2014. In April 16, he fell and got fractured his leg because of which health care people were unable to manage him. As a last resort I have shifted him to old age home from senior citizens and mentally unsound patients. I am single so can't keep him with me considering the tours I need to take for my business. And now financial burden is too much. My brother has flat in Goa acquired from the money he got from his share in our father's property. By birth he's Maharashtrian and his wife is from Karnataka. We are facing problems in selling his house because of Goan law where wife has equal share in husband 's property. Even the EMI of the home loan is paid till date by me so as to stop bank from sealing it. His wife is not answering any of our calls or messages. Please advise
Asked 8 years ago in Family Law
Religion: Hindu
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6 Answers
1. If there is default in EMI the bank will take the possession of the property and eventually auction it to recover its amount.
2. Your brother can sue his son for maintenance under Senior Citizens Protection Act whereunder it is the unceasing liability of children to support their parents financially who are not self sufficient.
As already said , by brother is mentally unsound to file any case. For parental negligence or for Partition of Property. Could any of his other relatives including me file on his behalf for parental negligence. Since it's unbearable to financially support for his welfare sale of his house is the only option. Bank loan outstanding is hardly 10% of the total value so by not paying emi bank will auction it and will transfer whatever left after recovery to an account which only his wife can operate in his absence. So, how could I use it for his welfare. Bank is conveniently accepting emi from me because they are not concerned other than their bank's interest which I understand. For a financially and physically incapable senior citizen how feasible it is to file for Partition even if he would not be mentally fit ?
Asked 8 years ago
the Local Level Committees set up under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 can issue guardianship certificates in regard to persons with disabilities
2) legal guardian so appointed can open and operate the bank account and take other decisions as long as he remains the legal guardian.
3) after being appointed as guardianyou can file suit for partition on behalf of brother
4) make an application to senior citizen tribunal on behalf of your brother and seek maintenance from his son
The senior citizen and physically handicapped person has to apply for maintenance from his son on his own, you may assist him but you cannot file any case on his behalf until you ar his court appointed guardian.
You can file a petition before competent court to declare him mentally handicapped and and another petition to appoint court guardian to look after him.
After becoming guardian appointed by court, you may file a petition on behalf of yor brother seeking the relief of maintenance from his son.
For your subsequent question also the answer to your previous question posted on the previous post shall b the same.
You have o follow the procedures for appointing yourself or anyone to take care of the mentally unsound person through court seeking to appoint as guardian to the mentally retarded person to take care of his property too.
1. If he is mentally unsound then the case can be filed by you for and on his behalf as his next friend.
2. Partition suit can also be filed but it will take time to be decided. The efficacious remedy for him would be to apply for maintenance.