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What Is Adverse Possession Of Property Or Land in India?

What Is Adverse Possession Of Property Or Land in India?

India – A Liberal Democracy That Guarantees The Freedom Of The Individual

India is a democratic country with firm faith in liberalism and the freedom of the individual. Every citizen in this country enjoys rights and privileges, which is in line with developing his/her individuality, and which is not in contravention with the individual rights of the other citizens.

The Sensitive Issue Of The Right To Property

Among the plethora of rights enjoyed by the citizens of India, the right to the private ownership of property also stands very tall. It is this right which makes us a liberal democracy, while continuing to be a responsible republic with commitment to the ideals of socialism and equality.

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A very common type of private ownership is the ownership of houses in the urban scape, some of which are given to tenants on rent. In fact, the issues between the landlord and tenant occupies an important part of the contemporary legal disputes and litigation procedures.

An important aspect of landlord and tenancy issues is the adverse possession in land. Let us what the term actually implies and about its related developments.

Adverse Possession In Land – Is Adverse Possession Legal In India

Adverse possession in land law is a legal principle that was introduced into the Indian real estate markets and legal systems by the British rulers. Adverse possession means acquiring property by unwanted means. However, it is an accepted method and is common in India. According to the law of adverse possession, if a person continues to occupy a property for 12 years, he/she is granted the ownership right of the property.

The Specifics Of Adverse Possession In Land

In simple words, if a tenant continues to occupy a unit for 12 years without any interruption from the owner, he/she gets the owner status for the property. The law was brought in to improve land use, but over the years, adverse possession has given way to advance possession, a form of hostile possession where the rightful owner is denied any claim to their property. Property owners should be aware of these adverse possession laws to avoid any hassle or dispute.

Also read Property Title Verification In India – The Process, Methods & Other Aspects

Law Of Adverse Possession As Per The Doctrine of Limitation Act

The law of adverse possession in India is governed by the Doctrine of Limitation Act of 1963. As per law, if during the time or period, if an appeal is not made to modify any of the limits, the present scenario of headings is maintained. In the context of adverse possession, the period is defined as 12 years. As per the Indian legal system, if a property owner fails to lay claim to his property for 12 years, and the same tenant continues to occupy the property for 12 years, then the right of ownership of the property is transferred to the tenant. goes.

Some Exceptions

But There Are Some Exceptions in Adverse Possession Law:

If the owner is a minor.

If the owner is mentally unsound.

If the owner serves in the armed forces.

Owners Should Be Aware Of This Law

Property disputes are on the rise in the country and owners should be very careful to avoid such situations. Being aware of these laws will help the owner learn how to prove adverse possession in court.

The Logic Behind Adverse Possession of Land

Although it is considered an illegal act, the Indian legal system continues to award principles of adverse possession based on the sole fact that the property was neglected by the owner for 12 years. This may be due to lack of knowledge on the part of the owner and there are many instances where the judiciary has sided with the owner. However, the trial went on for years and the trouble to the original owner could have been avoided.

The Directive Of The Honourable Supreme Court

Hon'ble Supreme Court on Adverse Possession in 2019 said, "From the culmination of title upon termination of title of owner, a person cannot be remedial. If he is evicted by the owner after losing the right by adverse possession" he can be evicted by the plaintiff on a plea of ​​adverse possession.Similarly, any other person who has evicted the plaintiff from full ownership by way of adverse possession can also be evicted when unless such other person has taken full ownership by adverse possession against such plaintiff. Similarly, in the case of infringement of any of his rights under the other sections, a plaintiff who has completed title by adverse possession shall, can file suit and prosecute.

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How Do I Apply For Adverse Possession Of Property In India?

The Conditions That Prove Adverse Possession

To prove adverse possession, these conditions need to be ascertained:

Continuity in adverse possession: If a property is taken by way of adverse possession, the possession must be uninterrupted for a specified period of 12 years.

Actual Possession: The owner must completely take possession of the property by way of actual possession. Actual possession includes fencing of property, construction of house, cattle grazing, construction of shed in the land

Exclusive Possession: The occupier must prove sole proprietorship for the property for 12 years.

Open Possession: Possession cannot be given by force or without informing the owner or through their license.

The Points To Be Provided & Proved Before The Court:

The holder must prove the following before the court:

Date of possession.

The public was aware of the occupation.

Nature of possession.

Continuity of possession.

Period of possession.

Can the tenant claim adverse possession through lease/rental agreements?

Tenancy through lease or rental agreement is generally not considered under adverse possession law in India. However, in certain circumstances, if the lease has expired or if the owner has defaulted on the details mentioned in the agreement, the tenants take advantage of the situation to file for ownership by way of adverse possession.


Property Title Verification In India – The Process, Methods & Other Aspects

Property Title Verification In India – The Process, Methods & Other Aspects

Title is a legal term; It means right of ownership of property. The title of the property is the prime concern of everyone at the time of property purchase. Every property has a title. Title is the proof of the right of ownership or the basis of the right of ownership. Title can be created by act of parties or by operation of law.

Also read What Is Adverse Possession Of Property Or Land in India?

The title to the immovable property is ascertained by reading the relevant "documents" and "deeds" relating to such property. The word "document" has a very broad import. Under common law 'document' means any substance expressed or described by means of letters, figures or marks for the purpose of recording that matter. Documents relating to property or commercial transactions are generally called instruments or deeds.

Land is a subject under the powers of the state governments under the Constitution of India and hence, property laws in India may differ from state to state. Apart from local laws, several laws framed by the central government also govern the acquisition and ownership of property (including interest in property) by way of purchase/sale, transfer, mortgage, inheritance or gift.

Transfer of property other than agricultural land, registration of deeds and documents come under the Concurrent List. When a person acquires or owns immovable property, the law also entitles him to use, lease, sell, rent or transfer/gift the land. The owner also has the right to mortgage his immovable property as security for the loan.

Here we'll tackle title checks required for a variety of purposes, including sale, lease, sublease and mortgage. For the purpose of brevity, reference to sale shall also include the purposes of lease, sublease, license and mortgage where applicable.

Importance of title verification

1. A title proves ownership. Barring a valid legal dispute, a land title serves as an official record for the ownership of the land. Without the appropriate title, the legal system would not recognize an unfiltered deed or informal contract.

2. All owners can hold their own duplicate title: Each owner of a land title can hold a legally valid copy of the title. The Register of Works will make a note of each owner's copy in the recordkeeping system to confirm the validity of the copy issued by each county. In the case of trust and company-based ownership, an accredited administrator may retain a copy of the title on behalf of the trust or company.

3. Prospective land owners often conduct title searches to uncover potential issues: During a title search, an investigator will look at years of land documents to identify potential issues with land ownership. A title search can prevent new owners from accepting liability for past issues. For example, a property owner cannot sell or transfer ownership rights to a property with unresolved tax issues. An outstanding lien can make any ownership transaction invalid.

Title searches reveal information about property taxes, property deeds contracts, CC&Rs (contracts, terms and restrictions), deed document issues and unresolved ownership claims, and more. If the previous property owner granted the easement or rights to use the property to a company or individual, the search will also reveal these recorded contracts.

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While buyers and lenders commonly use title searches during the buy/sell process, many other parties can benefit from a title search. Home builders, businesses and government officials can use title searches for risk management and investment protection purposes.

4. Title Insurance Offsets the Risk Associated with Title Transfer: To mitigate the effects of issues not discovered during the title search, many land buyers invest in title insurance as part of the closing costs of the transaction. Owner's title insurance often provides coverage for damages up to the full value of the title in case an issuer jeopardizes a future claim of ownership. Owner's insurance policies will also cover dispute resolution legal costs, including damages paid to another party to the extent of the policy. Lender's title insurance protects the lender's agreement with the borrower. In the event of a land dispute, the policy will cover the lender's loss and legal expenses.

It is clear that title verification is a necessary activity before buying a property.

Property Title Verification Process & Method

The search for property title or legal description is done by the attorney or a title company in most real estate transactions. The Attorney/Title Company must first look at the past records of the property. A property can have a "Chain of Titles". The attorney has to see whether there is any encumbrance on the property.

Sometimes a legal succession certificate is also required to determine the title of the property if there is more than one person as the owner of the property. It is necessary to define the relationship of owners. But this is generally done when the property owner is a deceased person and that person has more than one legal representative. In such a situation, it is necessary to show the relationship between the deceased and his legal representative. It will also have to be checked that no objection has been raised on the sale of the said property.

Mother Deed is necessary to trace the origin of the property. It is a document that helps in further sale of property, thereby establishing new ownership. In the absence of the original deed, certified copies should be obtained from the registered authorities. Mother Deed covers change in ownership of property, whether through sale, partition, gift or inheritance. It is very important that the mother deed records the references to past ownership in a sequence and must be continuous and unbroken. In case of missing sequence, one should mention the text (Preamble) in records, revenue records or other documents from the registration offices. The sequence must be updated to the current owner.

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Property title verification is necessary to prevent legal disputes after the sale of property. This is usually done with the help of the buyer's attorney. The attorney will determine by going through the past records of the property. Hence title verification assumes a major importance in the sale of property.

Partition Of Property Under Hindu Law

Partition Of Property Under Hindu Law

Partition is the process of division of property. The Hindu Succession Act, 1956 ("Act") regulates the partition of property under Hindu Law. 

There are two types of partitions under the Hindu Succession Act. 

  1. Self-Acquired Property 

  2. Ancestral Property 

Property obtained by someone in their lifetime and not inherited from their ancestors is Self-Acquired Property. On the other hand, Ancestral property is property inherited from one's forefathers. Further, Succession itself is of two types: Testamentary Succession and Intestate Succession. 

  1. Types of Succession

As noted, Succession can either be Testamentary or Intestate. Testamentary Succession occurs if there is a will. As long as the will is valid and enforceable, the will has to be executed, and the inheritance provisions do not apply. Part VI of the Indian Succession Act, 1925, further elaborates on provisions related to wills. The will should be clear, reduced to writing, signed by the testator and two independent witnesses. 

By contract, Intestate Succession is primarily covered by the laws of inheritance. For Hindus, these are governed by the Hindu Succession Act, 1956. 

  1. Rules of Succession under Hindu Law

Succession itself depends on whether the property is a self-acquired property or an intestate property.

  1. Succession of Self-Acquired Property

Self-acquired property is also known as coparcenary property. Individuals only have an "interest" in such property, and they receive a share in the property if they have an interest in it. Thus, the "devolution of interest" is an important concept.

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Section 6 of the Act comprehensively discusses the devolution of interest in cases of the death of a Hindu male. The property will devolve to all coparceners within the dictates of Mitakshara law. However, the Act is progressive and has included women and female heirs within the coparcenary. 

  1. The succession of Ancestral Property

The rules of property division are given under Chapter II of the Hindu Succession Act, 1956.

A Hindu male's basic rules of Succession are codified under Sections 8 and 9 of the Act. Under these provisions, the order of Succession is as follows:

Relatives specified in Class 1 > Relatives specified in Class 2 > Agnates of the deceased > Cognates of the deceased. 

The Succession is exclusive. This means that if there are any Class 1 heirs, they will all receive a share in property and exclude heirs from other categories. If there is no class 1 heir, then all members of Class II will exclusively receive an a of the property, and so on. This is the order of Succession clarified in Section 9 of the Act. 

The list of relatives under Class I & II are mentioned under the Schedule to the Act. Class I heirs primarily include the son, daughter, mother, etc. – Usually, the deceased's closest relatives. Class II heirs are more distant but somewhat related: they include the father, son's daughter's son, son's daughter's daughter, and so on. Sections 10 and 11 state the rules of Succession for Class I and II heirs.

The property of an intestate shall be divided among the heirs in class I of the schedule by the following rules- 

Rule 1: The intestate of window (s) shall take one share each. 

Rule 2: The surviving sons and daughters and the mother shall take one share each

Rule 3: The heir in the branch of each pre-deceased son or daughter shall take one share between them. 

This is also applicable to Class-II heirs.

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Finally, property devolves to cognates and agnates. A cognate is any blood relative from the mother's side, while an agnate is any blood relative from the father's side. While both Class I and II heirs receive equal shares, Section 12 of the Act mentions the hierarchy in Succession among the cognates and agnates. 

For females, similar rules are followed. These can be found under Sections 15 and 16 of the Hindu Succession Act.

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