How to save title of your property from illegal occupants?

adverse possession

An owner of a property is at will to use or not to use his property. However, if there is an intrusion and he does not take any timely action against the intruder, he loses the property. It sounds strange, but this is the law.

Adverse Possession is a legal doctrine that legalises occupation of a trespasser over a property. The claimant gets a right of ownership in the property if the real owner of the said property is sleeping over his right and does not take any action against the intruder (the claimant) who has enjoyed the possession of the said property for a sufficient period.

Read More: Owners need to be careful

In Indian Law, the concept of adverse possession is explained under The Limitation Act, 1963. If the real owner does not claim his right against the intruder within a prescribed time, he loses his right, and the possessor (intruder) gets the ownership right.

Elements of adverse possession: There are certain elements which are necessary to form adverse possession. These are:

1.    Possession must be hostile to the owner:

  • The claimant must possess the property with an intention to acquire the right through adverse possession. It is possession with a declaration of ownership against the original owner.
  • A trespasser can occupy the land even by mistake or inadvertently
  • No adverse possession if the trespasser had the authority to use the property, e.g. a tenant

Read More: Boundary Line Dispute

The possession should not have been obtained by

  • Force
  • Unauthorised means

2.    Period of possession – A claim of ownership through adverse possession can succeed in a private property if the trespasser has possessed the property continuously for 12 years. The period begins from the date the claimant (trespasser) is in adverse possession. For Government properties, the time is 30 years. This period varies in different jurisdictions. The owner has to bring an action within this limitation period.

3.    Possession must be actual, uninterrupted, continuous and exclusive. The claimant must be physically present and using the property. The claimant must be using the property exclusively.

4.    The public at large must be aware of the possession of the claimant. It is not the liability of the claimant to inform the actual owner, but the possession should be open to the extent that the real owner has the means to know that someone is occupying his property.

Read More: When Caretakers Try to become Property Owners

Defenses to Adverse Possession

The real owner can prove the absence of any of the above stated essential elements to defeat the claim of the intruder:

  • The claimant has not possessed the property for requisite duration
  • Use of the property was not uninterrupted and not continuous
  • The property was not being used exclusively by the claimant. The owner was also using the said property
  • The owner has permitted the claimant to use the property. In such a case, possession is not hostile
  • Adverse possession does not help to get the title if the real owner is minor, of unsound mind or in armed forces.
  • Government-owned land is sometimes exempted from adverse possession.

Need to relook: Many legal thinkers have criticised the doctrine of adverse possession as it helps the illegal occupants to get the title because of the inaction of the real owner. There is unjust enrichment. There is a need to relook into this law. Recent court rulings reveal that courts are now making it more robust for the illegal occupants to claim title through adverse possession.

Precautions that real owners can take to protect their property: Being vigilant is the key          

  • Regular monitoring of the property – Especially in case of NRIs as they are more prone to losing their property to intruders.
  • Building a fence or wall around the property
  • Placing the signboards for trespassers

Land Kabza- What to do?

Land Kabza- What to do

Land Kabza means someone else has occupied the land of an actual owner. The problem is common with NRIs as they cannot visit the place frequently and the property is left unattended for a long time. Grabbing such properties is easy.

Legal Advice and good property lawyer always help: It is sensible to hire a property advocate for proper legal advice to prevent Land Kabza and to take timely legal action in case of encroachment.

Also Read: Share of a brother in deceased brother’s property

Here are the answers to certain queries that are often raised in this matter.

What is meant by land kabza?   

Land kabza means illegally occupying another person’s land by a person who is not legally entitled to the same. The Illegal occupation can be:

  • By Force – land mafias generally occupy the land abandoned by owners
  • By forging the documents of title – people occupy the land and also procure forged title deed in connivance with the local authorities
  • Tenants who refuse to leave

What precautions are required to prevent Land Kabza?

A.    Documentation

  • Property Documents: All property papers must be in order. A person who has invested and purchased any property or has acquired any property legally must ensure that the title deed describing him as the owner of the property is prepared and available with him.
  • Payment of charges: The owner must have paid all the electricity, water bills and other government dues for the property and must preserve the receipts as these all assist in defending the ownership.
  • Registration and mutation:  The owner must get the documents registered in conformity with the State Laws. Mutation of the property is also essential. Mutation means to inform the revenue authorities about the ownership of a property. Mutation is not one time process but has to be done regularly.

Rent Agreement: In case the property is on rent, a valid rent agreement with the tenant must be in place.

Also Read: Property rights of a wife after husband’s death

B.    General Precautions:

  • Regular inspection of the property: The owner must visit the land frequently. In case of NRIs, it is not possible to physically inspect the site regularly; therefore, they can manage the same through a family member or a friend. A caretaker can be appointed to do important tasks.
  • Fencing: In case of vacant plot or land, fencing should be there. Constructing a wall indicates that someone owns the property.
  • A signboard warning the trespasser:The signboard helps to know that someone owns the land and trespassers will be prosecuted.

What are the remedies?

Also Read: Division of property between brother and sister after father’s death

If the property is found to be the encroached, immediate action is required. First of all, the owner should ensure that he has got all the necessary documents proving his title/ownership with him and then:

  • Inform the local authorities –revenue department etc.
  • File a complaint with Police Authorities
  • File a complaint in the court
  • Negotiations also help in case the opponent has occupied the land inadvertently

Specific legal remedies:

  • Filing a civil suit u/s 5 or 6 of Specific Relief Act, 1963 for recovery of  immovable property
  • Executive Magistrate of the area takes action u/s 145 of the Criminal Procedure Code to prevent the breach of peace in case of property disputes.
  • Action for the offence of trespassing and illegal dispossession under Indian Penal Code

Prevention is always better than cure so it is advised that owners must ensure proper documentation and regular inspection of their properties.

Division of property between brother and sister after father’s death

Division of property between brother and sister after father death

Under Hindu Law, brother and sister are at par when it comes to the devolution of property of a father dying intestate.

When a Hindu male dies intestate (without leaving a will), his property devolves upon the legal heirs as per Section 8 of the Hindu Succession Act, 1956. The legal heirs are as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

Class I heirs as mentioned in the Schedule of the Act are:

  • Son
  • Daughter
  • Widow
  • Mother
  • Son of a pre-deceased son
  • Daughter of a pre-deceased son
  • Son of a pre-deceased daughter
  • Daughter of a pre-deceased daughter
  • Widow of a pre-deceased son
  • Son of a pre-deceased son of a pre-deceased son
  • Daughter of a pre-deceased son of a pre-deceased son
  • Widow of a pre-deceased son of a pre-deceased son
  • Son of a predeceased daughter of a predeceased daughter
  • Daughter of a deceased daughter of a predeceased daughter
  • Daughter of a predeceased son of a predeceased daughter
  • Daughter of a predeceased daughter of a predeceased son

There are 16 class I heirs. Eleven are females, and 5 are males.

Rules for distribution of property among brother and sister (both are class I heirs):

  • Class I heirs get their share simultaneously and to the exclusion of others.As per the rules, son and daughter (brother and sister) are entitled to equal share in the property.

e.g. a father dies leaving behind a mother, a widow and one son and two daughters, his property would be divided into five equal parts, and each of these legal heirs will get one-fifth share.

Stepson or stepdaughter: Daughter and son must be natural or adopted children. Stepchildren are not included in the definition of son and daughter under the Act.

  • Children of predeceased son or daughter will take between them one share, e.g. If the daughter is predeceased and has two children, then in the above example, the property is divided into five parts, and one-fifth share of the deceased daughter will be shared further by these two children equally.

Ancestral or self-acquired property

The daughter (sister) has equal right as a son (brother) in the ancestral as well as the self-acquired property of the father.

Under Hindu law, there is a concept of coparcenary. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations with the eldest male member as the head and his male lineal descendants as coparceners. After the amendment of 2005 in the Act, the daughters are considered as coparceners and have equal right in the ancestral property as a son.

Marital Status: Marital Status of the daughter (sister) makes no difference.

Date of birth of a daughter (sister): The Amendment of 2005 came into effect on 09.09.2005. The daughters born before or after this date are considered as coparceners.

If the daughter is not living on 09.09.2005, her children are entitled to get a share in ancestral property.

If the father is not living on 09.09.2005, the daughter cannot seek partition of ancestral property.

Testamentary succession: However, in case of self-acquired property of the father, he can make a will of the same as per his desire, and the property bequeaths to the person named in the will.

In the case of ancestral property, a Will can be made by a father once he has acquired his share.

Division of Property Among Daughters and Daughters-In-Law

Division of Property Among Daughters and Daughters-In-Law

Daughters and daughter – in – laws are on different footing when it comes to shares they receive on division of property in a family. Devolution of property by inheritance or succession is influenced by personal laws and is governed by various statutes.

Position of daughters: Equal right as a son

In the case of Hindus (Jains, Sikhs and Buddhists) division of property is governed by Hindu Succession Act, 1956.

Hindu law recognises the concept of a Hindu Undivided family. Only males up to four generations (lineal descendants from a common ancestor) are coparceners, and all others are members of the family. After the amendment of 2005 in the 1956 Act, daughter whether married or unmarried is a coparcener. After marriage, daughter ceases to be a member of father’s HUF but still, she is a coparcener. A daughter has the rights and liabilities of a coparcener.

  • She can demand partition, has a birthright in the undivided family property.
  • She can be a Karta also, i.e. head of the family if she is the eldest coparcener.
  • If the daughter dies intestate, her share in the HUF property passes by succession to her legal heirs as per section 15 of the 1956 Act.
  • A daughter is a coparcener but a daughter in-law is only a member of joint family.

In case of self-acquired property of the father, son or daughter has no birthright in the same. If the father dies intestate, devolution of property takes place as per rules of 1956 Act under which daughter is covered as Class I heir and has an equal right along with son and other legal heirs.

Read: Do grandchildren have a right to their grandfather’s property?

Daughters also have a share in mother’s property. Daughters and sons have equal rights in the property of their mother.

Position of daughter- in- law: Limited Rights

A daughter in law has no right in the ancestral or self-acquired property of her in-laws.

After the death of her husband, i.e. as a widow, she has the right in her husband’s property left behind by him. This property can be either ancestral or self-acquired. The right acquired by her is as a widow of the deceased husband.

Thus if a father dies intestate, a daughter has an equal right in his property along with her brother, but the daughter in law has no right in the property of her father- in law till the time her husband is alive. After the death of her husband, she is entitled to get the share in the property of her husband along with his other legal heirs.

Read: Property rights of a daughter in a hindu family

The daughter in law has a right to residence only till the time matrimonial relationship exists with her husband. The right of residence is there even if the house is a rented accommodation. If the property is a self-acquired property of her father in law, daughter in law has no right of residence as the said house is not shared house because the husband has no share in it.

A widowed daughter in law has right of maintenance from her father in law under certain conditions only, as prescribed in Hindus Adoption and Maintenance Act, 1956.

Division of property:

When there is a division of property in a joint Hindu Family, the daughters enjoy equal right along with sons. The daughter in law has no right in the property of her in-laws. She acquires rights to the in-law’ property only through her husband.

The daughter in one family becomes daughter in law in another family after her marriage. She has full rights in the property of her father even after marriage but limited rights in the property of her in-laws.

Filing partition of property with joint owners in your absence can become a nightmare, Beware!

Filing partition of property with joint owners in your absence can become a nightmare Beware

Life is very hard for some people. When a person goes through a lot of financial hardships, getting a property worth crore of rupees is nothing less than bliss.

Can we imagine cases, where people are not even aware that they are being duped by their own siblings or close relatives ?

We were approached by a person who had gone abroad many years ago. After the demise of his father, he and his mother had faced a lot of hardships in life. Their relatives informed them they have some property in India and they are filing the partition of the same to give them their share. They were happy to hear the news and gave the power of attorneys to do all the partitions on their behalf.

Since they never been to India from a long time so they had no idea about the actual value of the land and property. They were shown a rosy picture by their relatives and they fell into the trap. Anyhow somebody told them about our firm and they came for a free legal consultation just to check on whatever they are being told by their relatives is correct or not.

Our team did all the appropriate research work. We carried massive search to inquire if any joint ownership existed in the client’s father’s name. We ultimately got the success. The property was found. Partition was done among the co-owners and shares were transferred to legal heirs but to our shock the whole partition was biased. Their relatives took all the expensive chunks to themselves and gave them the least valued portions.

We immediately took the actions and devolved all the partition their relatives had done. It was a massive work that our team did by making several applications and explaining the ill intentions their relatives had. After that, we filed the new partition where everybody got the fair share of the land and property.  The family received their rightful share worth crores of rupees.

How do you approach partition of joint property?

Immovable Property is generally owned jointly. Joint property means a property where more than one party is the owner of the property.

Arising of disputes is inevitable in such properties. Partition is a solution. It is a division of property as per the share of each co-owner. Partition of joint property can take place by:

  • mutual understanding among co-owners
  • demanding one’s share

For partition, we need to know our share in the joint property. Share can exist due to inheritance or through some title document (sale deed, will etc). In the absence of clear title, other documents like land records, tax receipts, survey documents, help to prove a title.

What about certified copies of the documents related to property?

If a party has no document available with him, he can file for inspection of documents in the Registration Office where the property is located and get the certified copies of certain documents.

  • Shares in joint property:

Till the time property is joint, shares of co-owners are undivided. After partition, each co-owner gets a share in the joint property as per his entitlement according to the law.  Law of inheritance is also applicable when partition takes place. Each co-owner becomes the absolute owner of his property (share). He is free to dispose of the property.

  • Partition deed for smooth partition:

A partition deed, drawn in a clear and unambiguous manner, executed on a stamp paper is required to be registered at a place where the property is situated.  Names of the parties and their respective shares need to be clearly mentioned. It must carry the date from which the partition will be effective

  • Partition by Family Settlement Agreement:

The partition can take place through a family settlement agreement. It is drawn on the same lines as a partition deed but does not require any registration or stamp duty. It need not necessarily be a written document, can be oral based on mutual understanding.

  • Partition by filing suit in court:

Here, the court determines the share of each person and property is divided accordingly. It is filed in the court which has the jurisdiction in the area where the property is located.

Why do you need expert guidance?

Generally, the partition is not very easy as the shares in the property are not well defined.  A partition deed executed under expert guidance and legal advice helps to sail through such problems.