Son Can't Claim Right Or Share In Parents' Flats While They Are Alive : Bombay High Court

A division bench of Justices Gautam Patel and Madhav Jamdar rejected the son's suggestion that he has a settled and enforceable share in either of the flats in the lifetime of the real owners, his parents, as being "laughable." "The fact that he is their son does not make either of their flats 'a shared household", the bench said.

"Asif(Son) can have no right, title or interest whatsoever in either of these flats — one in his father's name and other in his mother's name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable. The fact that he is their son does not make either of their flats 'a shared household'".

It rejected the son's intervention application in his mother's  petition to be appointed as her husband's guardian for his person and property.

Her husband has been in a vegetative state for over a decade, has dementia and has suffered multiple strokes. Sonia Khan (mother) approached the court to use their joint account and sell their flats to meet Faraz Khan 's (father's) medical expenses.

The property in question was a bank account with 'Saraswat Bank,' and the father's flat in Marol, Andheri.

The son, living elsewhere, sought to intervene and oppose his mother's plea claiming to be the father's "de-facto" guardian for many years. He has no rights in his father's flats and he has nothing to show that he has ever cared for his father, the bench observed adding that the mother and married sister had annexed a large set of documents to show the mother had been bearing the father's medical expenses.

The son then claimed that although his parents were alive, the two flats owned by his parents were "a shared household" and therefore he, the son, has some sort of enforceable legal right or entitlement to either or both of these flats.

The court found the son's submission "ill founded," and "illogical" and "laughable." "In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father's name and other in his mother's name — so long as his parents are alive."

The court further observed that Asif may have been advised (or ill-advised) to accuse his sisters of domestic violence even though he is not part of the domestic set-up. It took exception to Asif's submission that his mother had an 'alternate remedy'.

"That submission alone shows us Asif's true nature, his utterly heartless and avaricious approach. His Interim Application is dismissed," Justice Patel said.

No Provision of Law to Deal With Pro-Tem Guardianship

While allowing the mother to operate her and her husband's joint account, the court directed her to keep an account of all the expenses and not use the money for herself. Further that she would be permitted to negotiate with flat purchasers but not sell the house without the court's permission.

The bench said that these safeguards were required as there were no "structured provision in law as yet to deal with these situations."

While there were some indications in the Disabilities Act and in similar statutes but a comprehensive statute dealing with these situations and allowing pro-tem guardianship is not yet in place, the bench said.

"We put the case of Fazal Khan (father) practically on the same footing as that of a minor who holds a share in an immovable property. This necessarily means that Fazal's interests are under the care and supervision of the Court…it is for this reason that we find ourselves unable to grant an open-ended permission in cases like this," the bench said.

Case Title: Sonia Fazal Khan & Ors Versus Union of India & Ors

Citation: 2022 LiveLaw (Bom) 103

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