• Property inheritance and adverse possession

Hello

I am looking for some advice on filing a case.

Background:
Religion - Hindu
My Grandfather had a shop. He died 1988 without a will. Grandfather had 11 children 8 male and 3 female. Original paperwork of the property is not known and all 11 claim they are lost.

My father had the possession of the shop since 1988 as he was running it. He closed the shop in 2003 as he wanted to retire. Property is closed since then. We have carried out repair and construction. We also pay electricity/property/Welfare association bills.

My father died in 2016 which left the shop to me and my mother.

None of my father's siblings are in talking terms, some have moved abroad and some have died. No negotiation is possible as there are too many parties involved now.

No legal case has been filed by any sibling for the property.

Please advice on way forward on this?

Query:
1. Can I file a case in the court to get me ownership of the property based on adverse possession as we have possession for over 12 years?
 a. What will be the process to do this?
 b. What are the risks of doing this, as I don't want to lose the property.
 c. Does adverse possession of father pass to my Mother and Me?

2. If i cannot claim under adverse possession what will be the course of law for it.
 
Thanks for your advice
Asked 6 years ago in Property Law
Religion: Hindu

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16 Answers

1. Adverse possession cannot be claimed in the facts of your case as it cannot be claimed between family members as per law. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.

2. In absence of any relinquishment or gift deed from your father's siblings or there legal heirs, nothing can be done to transfer the property in your mother's or your name. You can simply keep the property in your possession and can use it for yourself.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

This is not Adverse possession. This is possession plain and simple. Adverse possession starts when the rightful owner or a shareholder asks you to give his rightful share and you refuse.

Also tge shop belongs to all of the 11 heirs and their children.

File a partition suit and make all of them parties and describe the family tree.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

1) you cannot  claim adverse possession against family member 

 

2) 

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:

3) 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.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The property is jointly owned by may persons. File a partition suit and make all the heirs party to it. The ones you know are parties. File it in the civil court. Then the court shall send notices to the Parties. Find out the addresses. Otherwise give their last known address. The suit shall be decided ex parte in your favour if nobody comes to contest the suit.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

You can file the suit for claiming possession on ground of adverse possession but the same is not dependent on 12 years of possession. It depends on many other factors like possession becomes hostile etc. You need to prove adverse possession in court of law

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

1) If the shop possession is under you than you can claim the property rights, first you can file for legal heirship and after that get legal rights of yours by possession, if any one of siblings son or daughter claim rights than you can purchase the shop from them.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

1. you cannot claim adverse possession against your own family members. it's a possession, 

2. file a partition suit,

as the property is owned by many persons jointly, you have to get the notices serviced to them through many ways like ordinary service, dasti, post, publication in the newspaper, etc  

 

Suneel Moudgil
Advocate, Panipat
2386 Answers
6 Consultations

Adverse possession by a co-owner: intent to oust co-owner must be clear and unequivocal.

Partition suit will be futile, 11 shares of shop not feasible but only sale amount. Suit will take years as service of notice to all heirs and those who expired to their legal heirs will only take long time. 

Issue them notice and denied them any share. Than period of adverse possession will start.

Or bring a story that your father ousted them in 1988 from any claim,

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

You have to send notice at last known address 

 

3) if summons are returned you have to opt for substituted service ie paper publication in 2 local newspapers 

 

3) you and your mother inherit your father share in the property 

 

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. The plea of adverse possession can be taken as defence . On this basis no case or declaration by court can be sought for. Since there is no problem till this date as regards your possession I would  not recommend you to trigger any litigation just now. Moreover mere possession is not enough to get success on adverse possession You will have to prove in court is that your possession open and hostile to the actual owner with intention to 

2.  So enjoy the property and wait for the others to approach ort ake steps to get the property vacated.

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

1. Adverse possession is claimed by the person who is not title holder or legal heir of the property but have in possession of the said property against the expressed wish of the title holder or his/her legal heirs for a period of more than 12 years without any case filed against the said occupier. In the instant case you yourself are one of the legal hwirs of the said shop. So, the provision of adverse possession is not applicable in your case. You can claim its complete ownership  and run or let out the said shop..

 

2. Run the shop by yourself if possible or let it out. If other legal heirs file any partition suit, you shall have to contest the same fittingly.

 

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1.  If you want to go strictly as per law then you shall have to get a sale/relinquishment/settlement deed registered by other legal heirs conveying their title of the bsaid shop in your favour. Since you are in possession of the said shop, there is no ground for you to filoe a partition suit since if the shop is partitioned, you will have to give share of it to the other legal heirs. Let them file the partition suit when you can offer them to sell off their shares of the said shop.

 

2. You shall have to get the title of the shares of other share holders of the said shop in favour or you and your mother as informed earlier.

 

3. Court will not find out the other legal heirs. Either you shall find out the legal heirs or the other legal heirs will find out thqat you are holding the possession of the shop alone and claim its share. You can continue to hold possession of the shop and try to run it or let it out unless you find some other claimant of its share.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. adverse possession can be claimed when you are a trespasser on some one else's property and are in possession of such property right under the nose of the true owner for a continuous period of 12 years during which the true owner took no steps to evict you from his property

2. such is not the case here since the property has passed on to the legal heirs by inheritance

3. since your GF was a Hindu, his property will devolve on his legal heirs who are his mother [if alive], widow and children, u/s 8 of Hindu Succession Act

4. so if you claim that you have inherited the property then you will have to file a partition suit

5. the suit has to be against all known legal heirs of your GF

6. the suit has to be filed in the court which has jurisdiction over the property i.e. in a court in the place where the property is situated

7. since you claim partition, it is you who have to serve the case papers on all the legal heirs so that they can file their say/written statement

8. whatever last known address you know of the legal heirs, that you have mention in the cause title of the suit

9. if service on the legal heirs cannot be effected for want of their proper addresses, then you will have to apply to the court for substituted service by paper publication - that is by giving the notice about filing of the suit in local newspapers

10. some courts like Bombay High Court have also made rules for service by email 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

1.  This is not your father's property alone, it is shared by 11 people(siblings), hence there is no question of adverse possession therefore you cannot claim ownership just because you possess it over 12 years, the court may not entertain any such suit.

2. You along with the other legal heirs of your deceased father can claim your father's share in the property by filing a partition suit for separate possession of your share in it.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1.  In the partition suit you may have to implead all the shareholders (including the legal heirs of the deceased legal heirs of your grandfather) as necessary parties to the suit, you can mention their last known address for service of summons..

2. As informed you in my previous post, you and your  mother shall be entitled to your deceased father's share in the property alone and not the entire property.

3. You first file the partition suit, the court will conduct the trial and shall conclude to allot you the legitimate share you are entitled 

4. 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Dear

In this case the adverse possession is not applicable because property belong to all legal heirs of your grandfather and one family member cannot claim any property on ground of adverse possession.

It is better for you to keep enjoying the possession until no dispute arise on the property.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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