• Adverse possession within family

Lawyers, 

In 1965 my grandmother purchased agriculture land in Hyderabad. In 1969 she passed away leaving behind 4 sons and 2 daughters - only 1 son and 1 daughter adults in 1969. The eldest son mutated the land in his name directly. The daughters signed notarized stamp papers claiming no right in ancestral properties. 

Now my father when investigating the properties found that the mutation done only in one name as all Pahani records from 1970 - Present just show the name of his eldest brother. Meanwhile, in 1987 a partition had taken place (not registered) showing my father holding rights in the above said property. 

Today we are thinking of filing a case against the eldest brother and a petition to MRO to correct mutation and pahani records and issue pass book. But my primary concern before getting started on this is can the eldest brother claim ownership by adverse possession.

Regards
Asked 7 years ago in Property Law
Religion: Hindu

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4 Answers

1)your brother cannot claim adverse possession against family member

2) possession has to be open, hostile, exclusive, actual, and continual for the statutory period.

3) it is weel settled law that between co-owners, the mere fact that one co-owner is in possession of the entire property would not be sufficient evidence of ouster so as to extinguish the rights of the other co-owner

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

Hi

1) In your case, when the rest of siblings were minors in 1969, and as such the eldest son cannot claim valid title on the property on grounds of mutation when the rest of siblings were minors.

2) Mere Mutation of property in Mandal records(Pahani, Adangal etc) does not confer ownership of the property.

3) In order to claim ownership and title of the property, a settlement deed or a partition deed should have been compulsorily registered under section 17 of Indian registration act by paying registration fees and stamp duties and in this deed all of the family members should have affixed their signatures in presence of two witnesses.

4) Your uncle(eldest son) cannot deny your father or the other siblings their respective share of your grand mother's property on the grounds that he had mutated the property in his name in mandal records.

5) The concept of adverse possession is not applicable amongst family members and hence your uncle(eldest son) cannot claim adverse possession.

6) The Supreme Court in Chatti Konati Rao & Ors. vs Palle Venkata Subba Rao has explained the underlying principles in cases pertaining to claims of Adverse Possession

a) It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous.

b) The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner.

c) It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567)

7) Also that the daughter's extinguishing their rights by way of notarised stamp papers is not the right method for partition of property.

8) The sisters should have executed a registered settlement deed at Sub-Registrar office as mandated by Section 17 (b) and (c) of Indian Registration act failing which they can continue to stake their claim on the ancestral property.

Section 17(b) and (c) of Indian Registration act reads as follows:

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

1. Adverse possession is claimed by one if he keeps in possession a property or part thereof which belongs to some other person for more than 12 years against the expressed wish of the owner.

2. In the instant case, you have not lodged any claim on the property before within last 12 years and it is your grandfather;s property.

3. File the partition suit immediately claiming partition of the said property with metes and bounds.

4. Also apply before the BLRO for including the name of your father as the joint owner of the said property in the land records.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

In the inherent property the interests of cosharers cannot be extinguished by operating law of adverse possession.

The partition suit can be filed at any time and it is not barred by limitation.

You father can file partition suit now and can apply for mutation of revenue records after getting separate possession of his legitimate share in the property.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

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