• Adverse possession time limit against predeceased mother’s son(B)

We had partition of our house property in 1990 and brother (A) family are in possession of the property allotted in partition in 1990 with seperate gate.Son(A) died on 25th feb 2005 & mother(C) had inherited share in predeceased son property with A’s widow & two children & according to my understanding mother’s share in son A’s property will be 1/4. Mother died on 20 jan.2007. she did not file petition for possession/partition during her life time against brother(A).I am one of the legal heirs of mother & I as brother(B) can claim share in brother(A) property since mother(C) had died & brother (B) being mother’s (C) successor.When statutary provision of 12 years time of adverse posession against me(B) would run out to claim mother(C) inherited share in predecesed son(A)property. Sir, my question is what will be the starting date of adverse possession against me(B). Will it be from the date my brother(A) died or from the date my mother(C) died. Will the 12 year period be counted from my brother’s(A) death or from the date of mother’s (C) death.I do need citations. Kindly provide citations,without citation my problem will not be solved. As far I have studied, it will come under article 65 of the limitation Act and explanation for the purpose a,b,c will not be applicable to my understanding. You may refer to Parvathy Thilagam vs Rengasamy Nadar(Died) on 23 August, 2016 in which “Chinnammal till her death on 16.01.1985 and thereby they prescribed title adverse possession. Chinnammal lost her right in the property.” I hope I have written correctly.
 

Rough work, Main question is above.
(C inherited property from A after A died & logically I think that since I have inherited property from C (after C died) being one of the legal heirs of C & with it inherited from C 12 year limitition period to file suit against A, so my limitation period(limitation period which C had) to file suit should be minus limitation period already expired from the date of A’s death. It means period of limitation will be counted from A’s death. C would have lost her right in A’s property if C did not file partition suit within 12 years from A’s death and I would have inherited nothing. What the legal position is you may inform me now with reasons and citations.I may be wrong in my thinking.As far I have studied it will come under article 65 of the limitation Act and explanation for the purpose a,b,c will not be applicable to my understanding.)
Asked 7 years ago in Property Law
Religion: Hindu

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4 Answers

1. The concept of adverse possession is not applicable to the facts mentioned by you as you had a definitive share in the property on the demise of your mother. The limitation period of 12 years to file a suit for partition would begin from the date of demise of your mother.

2. Citations you should find on your own.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) on son A death in 2005 mother would have one fourth share in son property .

2) on mother demise in 2007 her one fourth share would devolve on legal heirs including you

3) you can file suit for partition to claim share in A property

4) It is well settled that the possession of one co-owner is considered in law as possession of all co-owners. The possession of a co-owner is presumed to be on the basis of joint title. Long and continuous possession by itself would not constitute adverse possession. In order to constitute adverse possession, it is not enough to show that one of them is in sole possession and enjoyment of the properties. The co-owner out of possession must be proved to have had notice of assertion of hostile possession ousting him. The relevant judgments are as under:

5.1 In P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, the Supreme Court held that the possession of one co-heir is considered, in law, as possession of all the co-heirs. The relevant portion of the said judgment is reproduced hereunder under: -

"8...But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 [C]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Dont get confused by complicating the different provisions of law.

You should concentrate on the law that provides you relief and should not travel beyond that.

If you are entitled to a share in the property or share of the property that belonged to the deceased as a legal heir to the deceased and suppose that property is under possession and enjoyment of other legal heirs, you can claim your legitimate share in the property as your right in it any time.

The law of limitation or law of adverse possession shall not operate to this situation.

There is no time limit for claiming partition and separate possession of your legitimate share or rights in the property, provided you are eligible or entitled to a share in it.

Since this is the position of law you dont require a citation to establish this fact before court of law and can file a partition suit to claim your share and separate possession of the share.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

1) relinquishment deed cannot be made in favour of particular co sharer

2) release deed would be for benefit of all co parceners

3) it cannot be relinquished for benefit of D only

4) unable to find citations sought by you

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

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