Adverse Possession

[Sri Kanitkar]

Dear Sir,

1. My father made a WILL favouring me, my wife and her relatives. My sister was excluded from his WILL.
2. My sister criminally intimidated and forced me to sign a ‘Registered Family Deed’, which deals with the assets/estate of our father. However, since this Family Deed was made when my father was alive and without his signature, it falls u/s 6(a) of the Transfer of Property Act. Hence it is void ab initio and it has no legal sanctity. I have sent my sister a legal notice cancelling the Family Deed.
3. My sister illegally and forcibly entered and occupied 80% of my father’s property and an FIR is registered on er. She continues to be a trespasser. By using the Family Deed (it was registered), she has transferred all my father’s electric bills, tenancy, business etc., to her name.
4. I and my wife etc stay on the balance 20% of the property.
4. My father has expired. But we are not proceeding for probate.
5. After 12 years are over, can my sister claim adverse possession over the ENTIRE property and evict us from the balance 20% of my father’s estate? Please note that the Family Deed is void ab initio and I have sent her a legal notice to cancel it. I have also stopped receiving any monetary benefits under it.
6. Is it necessary that I move the court to cancel the ‘Registered Family Deed’ and to declare it as null and void? Considering the huge back log of cases, is this effort worth it?
7. Instead of this, can I apply for partitioning of my father’s property under Hindu Succession Act?
8. Thanks & regards

[Dr. Ashok Dhamija]

In another question asked by you, you have mentioned that your father expired recently. I presume that “recently” means not later than 12 years. In such a situation, since your sister is living in the property of your father, then previously she would have been living there either in her capacity as daughter or as per the “family deed” mentioned by you. In my opinion, this previous period when your father was alive, cannot be included in the adverse possession since at that your father might also be staying there who was the owner of the property. And, since your father died recently, she would not be in adverse possession for a period of 12 years after his death. So, I do not think the adverse possession principle would apply in this case.

Moreover, she is not in exclusive possession of the property, since you said that you are also living in the same property (20% of the area). One of the requirements of adverse possession is exclusive possession. So, this ingredient is also not satisfied.

Further, as per your own version, she is apparently claiming title under the “family deed”. So, the ingredient of “hostile possession” which is required for adverse possession, is also apparently not satisfied.

Likewise, it appears that you have already started litigation in respect of the said property before the expiry of the 12 years period. Or, you may be about to start such litigation within such period.

In view of these reasons, I feel that it may not perhaps be possible for your sister to claim adverse possession. I have written all this on the basis of limited knowledge of detailed facts of your case. For a proper legal advice, you should show all relevant documents and details to some lawyer.

Similarly, without having seen all the relevant documents, it is not possible for me to tell you whether you should file for partitioning of the property as per Hindu Succession Act or should go in for declaration of the family deed as null and void. In fact, at another place, you have also mentioned that you have a will in your favour, but you don’t want to get it probated. So, these appear to be complicated questions of facts on which I cannot offer a correct solution without having seen the full contents of the relevant documents. It is in your own interests that you must show all relevant documents to some lawyer and obtain his considered opinion.

 

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sri Kanitkar]

Thank you Sir

[Author]

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