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Stepmother took possession over the entire property

Shivendra Pratap Singh

Advocate

24/04/2020/ 8:16:16 AM

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My father has solemnised second marriage after my mother’s death. Stepmother doesn’t have children. Stepmother took possession over the entire property. I am the only son of my father. After my father’s death, the stepmother is getting family pension. The question is my stepmother is having rights in my father property. She Equally shares in my father property. Give me legal advice.

Question from: Bihar

You did not mention that property is ancestral or self-acquired property. If it is an ancestral property then your stepmother has no right. She cannot take possession over the ancestral property. The only coparcener has a right to inherit the ancestral property. 

When stepmother took possession over the ancestral property

After the amendment in the Hindu Succession Act, only children of the deceased get right in the ancestral property. You are the only child so you have exclusive right over the ancestral property. The stepmother has limited right in the ancestral property. If the son is minor or unsound mind then the mother can manage the ancestral property. She cannot alienate the ancestral property as her own property because she has no right to sell the ancestral property.

Possession over the self acquiree property

If this is your father’s self-acquired property then your mother has right therein. She can take possession over the property but to the extent of her share. She has a one-third share in this property so the possession shall be the extent to that portion only. She cannot take possession over the entire property. 

File a declaratory suit

You can file a declaratory suit under section 34 of the Specific Relief Act 1963. The court will declare your right in the property and may direct your stepmother to release her possession over the two-third portion of the property. If it is an ancestral property then the court will direct her to leave the possession over the entire property. The Limitation Act prescribes twelve years limitation period to file such a declaratory suit.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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