Your aunties , uncle wife can claim equal share in property
on their demise intestate their share would devolve on their legal heirs
you can purchase their share in property
House ownership
Dear Sir, We would like to get in touch with you regarding a property issue where we (my parents and we two brothers) have been staying for more than 40 years in N 24 parganas. This house was built up on 1952 with my father initiative and he started staying there with his siblings and my grandparents. After 10 years they moved to Kolkata and my parents returned there by 1979 and started living since then. On 1991, when govt started registering all the properties at our locality, our house also got registered and the deed was made on my father’s name, uncle’s name (who is no more now and never stayed in this house) and my two aunties name as they were unmarried (they don’t have children now and never stayed in the house) and it was mutually decided that my father would eventually own the house. We two brothers with parents stayed there, taking care of our parents, taking all the responsibilities of maintenance; they never enquired about the house maintenance and did not intend to stay there as they had built up their apartment in Kolkata. Even they do not have address proof with that house address. Now our both the parents died we only spend maintenance for the house and sometimes go there stay couple of weeks. In this situation when we asked for the ownership of the house my two aunties (more than 70-year old) and uncle’s wife (74-year old) are not ready to leave their ownership; even they are not ready to take responsibility of the house maintenance. I have a question as they do not have any address proof, never stayed in last 60 years, only based on the deed can they claim the ownership of the house? If yes, what option we do have to get the house on our name (we two brothers) only?
Asked 4 years ago in Property Law
Religion: Hindu
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
25 Answers
If you and your brothers has possession of the plot and house. On adverse possession based you can apply in the court and take the property on both of your names.
The property is joint. Some of the co owners may have died and some are living but they do have a share in tge property. That cannot be denied legally.
However you may claim this property as yours on grounds of adverse possession. They may contest or not but you have the possession of the house and are living there and maintaining it payong taxes. That does not confer ownership but you may claim ownership through adverse possession.
Long stay in property dose not pass ownerhsip. Registered deed is in your father's name. Enjoy your title. If they are disputing and claiming their share in it. Let them approch court.
Dear sir,
If there is a registered deed favouring your dad uncle and aunts in such a case every1 will hold a legal right in the said property as in your father share you and your brother can claim a right and rest will remain with the other parties!!
Yes as per the deed they will have ownership rights. They can claim the same. But being owner they are also liable to pay maintenance of the house
1. To claim deceased Father's property, you will have to documentarily prove that Land & House was financed solely by Father and that Uncle & Aunt's did not contribute any money for the same. Till this is not proved in Court, Uncle & Aunt's will continue to have Stake /Rights in the House.
2. IF Available, check the Income Tax Returns of Father (even though it is very hold AND check the original land purchase documents and house construction plans & contractors receipts etc.... to prove your case for staking claim on entire property. Based on this you will be able to file Civil Court proceedings to nullify the mentioned Deed.
3. IF above is not possible, THEN the next best option is to settle amicably via a registered Settlement Deed, executed between all the Claimants with mutual consent.
1. Ownership is decided based on the registered title deed only and not on the fact whether the other parties maintained the house or not or whether they had ever mentioned address of that property as their address or not.
2. Preserve the evidence that your Uncle's wife and the Aunties are objecting your occupying the entire house and claiming sole title of the said property is to be preserved.
3. Now, whenever they claim any share of the said property, you can claim adverse possession since you are in possession of the said property in its entirety for more than 12 years against the expressed wish of your Uncle's wife and Aunties.
4. Mutate the property in your names, Keep paying tax and electricity bills keeping evidence thereof to claim adverse possession later on.
1. The address proof ir lack of it from one particular premises neither establishes title nor relinquish it.
2. Since the names of your aunts are there in the original title deed they have respective 1/3rd share in the property leaving remaining 1/3rd to you.
3. So in that circumstances the claim of your aunts are not unfounded .
4. Your aunts have become old and fragile. So in stead of raising dispute at such an old age pay them some money and get a Release or Gift deed registered by them.
5. They can file a suit for partition to claim their respective in which though you can take a feeble defence of adverse possession.
1. The two aunties and uncle's wife can claim their share in the house, since their names appear on the deed.
2. To get the ownership of the house only in you and your brother's names, the two aunties and uncle's wife have to execute a registered Gift Deed relinquishing their share in the property in favour of you and your brother, so that during their lifetime itself, the transfer of property takes place in you and your brother's names Or the two aunties and uncle's wife can individually execute a WILL bequeathing the property to you and your brother. In this way you and your brother can become Absolute owners of the property after their demise.
Or
3. The two aunties and uncle's wife can execute a registered Release Deed relinquishing their rights over the property in favour of you and your brother thus enabling you and your brother to become Absolute Owners of the property.
You should file a declaration suit for declaring 100% ownership of the property
It cannot be construed that your aunties and the widow of your deceased uncle do not have any rights in the properties just because they did not stay in that property.
Their rights are secured under the provisions of the HSA, 1956.
They have equal rights whether they paid for maintenance or not.
There is no binding on you that you have maintain the property or to allow it to ruin.
You cannot deprive their rights.
Hence the best possible way is to settle down the issue amicably by drawing a partition deed on mutually agreed terms and conditions.If that is not possible then you may have to file a partition suit to claim your deceased father's legitimate share in the property.
your father can claim exclusive ownership right over the house on the basis of adverse possession
even though your aunts and uncle's name is there in the house deed, it was your father who had been acting as the sole owner of the house
after his demise his legal heirs would step into his shoes
so your father and after him his legal heirs have perfected their title by adverse possession
the legal heirs can either file a declaratory suit to declare themselves as sole owners of the house or if the other claimants claim any ownership right now after lapse of 60 years by filing any civil suit, then the legal heirs can defend such suit by invoking right under adverse possession
You can become the owner of property by adverse possession if you have been living and have been in possession of that property for so long that you become the owner of the property to the exception of the real owner by adverse possession.
As per section 27 of Limitation Act, you become the owner by adverse possession if the owner doesn't lay claim within a period of twelve years.
1. Yes they can claim ownership of house on basis of registered deed.
2. You need to file suit for declaration of ownership of ground that it was mutually decided between siblings that house will be transferred on name of your father and on basis of this agreement nor brother neither sisters pay any maintenance since registration.
- Since, this house was built up by your father , and further this registered in your fathers & uncles name ,and two aunties name , hence they all having equal right over the same in the absence of any partition.
- Further , after the demise of your father , his share would be devolved upon you both.
- Further , during the life time , you cannot claim ownership over the property in the name of aunties, without their consent , however legally they can transfer the same in the name of you both.
- Further, if they never was in possession of the said property , then the person who is in continuous possession for the period of 12 years , can claim ownership on the ground of adverse possession.
- If you both having proof of staying i.e address proof etc in support of your fathers continuous occupation as well, you can claim the ownership after filing a Suit for Declaration before the court.
Thanks a lot for your answers; it helped me a lot understand our legal right and following steps. According to the responses I think we have two options – 1. Advance Possession, 2. Buyout their share mutually. Now, I have two questions: 1. What are the documentations required for advance possession and what is the criteria for that? We have maintained our address proof in that house but in last fives years we are staying in different states for our work. Are we eligible for advance possession? 2. If we buy out their shares; what are the mandatory points to be written on the document where they will sign so that they can’t claim anymore or raise any objection. Will it be gift to us or NOC? After we buy out if we want to make more construction or sell the property, in that case do we need to do mutation on our name?
Asked 4 years ago
Sale deed has to be executed to purchase their share in property
2) it should mention consideration to be paid
3)it should be duly stamped and registered
4) mutation of property should be done in your name then only property sold
Buying their share means you have to perform relinquish deed as its ancestral property for some consideration.
Adverse possession is not easy. You need to show that the owner was silent even after the possession went hostile with you.
It's better you execute registered gift deed. Averments and conditions can only be suggested after detailed study
1. What do you mean by advance possession.
There is no provision in law to implement such ideas.
If at all you would like to buy their shares in the proeprty, then they may have to either execute a registered release deed relinquishing their rights or to sell their share in the property or to execute a registered setlement or gift deed in your favor.
Your action of occupying the entire property would be considered as an act of depriving their rights or an act of land grabbing, both of which are an offence under the provisions of criminal law.
If they are willing to transfer their shares in the property by anyone of the modes as suggested herein above, you may enter into an agreement containing the conditions that you would make the settlement of balance of consideration amount by paying an advance amount for now and to have possession of property from now on i.e., from the date of entering into the said agreement.
2. For buying their shares, you may ask them to execute a registered sale deed in your favor or you can try other modes as suggested above for acquiring the property legally.
Once the property is legally transferred to your name, you can apply for transfer of revenue records and mutation to your name.
Sale deed in your father name, recover possession if they are living in the property or lock it.
To purchase their share, they have to execute release deed in your favor. They will sell their share fro XYZ amount and same will mention in release deed.
Gift executes out of love and here you will pay them so it will be registered release deed only.
To sell the property, prior mutation is not necessary.
1. You should arrange the proof of residing there continuously in the said property till date in any form.
- It is not mandatory to produce the proof of residence for each and every year.
2. If you want to buy their share , then you should execute Sale deed, where it should be mention that they have left their share in your favour and further will have no right to claim in future.
You can get a draft from a part particular lawyer
You need tax receipts,phone, electricity bills witnesses who can prove you are the possessors of property.
In my Opinion Better execute Sale Deed.
1. It is not Advance Possession but Adverse Possession which can be claimed by the occupier of the property of its owner if he stays in possession of the said property for 12 years or more against the expressed wish of the owner/s of the property.You forget about your address proof. You shall ave to have evidence that you are in possession of their share of the house for a period of more than 12 years against their expressed wishes. You can of course claim for Adverse Possession in case they file any partition suit claiming their share of he said property.
2. Get a Sale/Settlement/Gift Deed registered by them in your favour. Engage a local lawyer to properly draft your said deed and get the same Registered.