Property
2 years ago
Dear Lawyers,
I have been staying in my parental house with my family since 2007( 14 years now ) after selling my own house.The reason for shifting with them was to look after them in their old age.Father expired in 2009 & mother passed away in 2012.Had an elder brother but he did not take responsibility to look after them and has his own flat where his wife & son resides.He too expired in 2018 leaving behind his wife and son.Can I claim possession of my parental flat under adverse possession as my father had not nominated anyone or made a will.Please advise as my sister in law & her son are not ready to cooperate on registering the succession certificate on my name.
Sidhaarth
Responded 2 years ago
A.In given circumstances the principle of adverse possession is not applicable. As per law sister in law and her son are entitled to have equal share in the property left by your parents. All properties left by your parents are liable to be divided in two equal parts. If flat is not divisible then it should be sold and sale consideration be divided in two equal parts. You can implead names of sister in law and his son in succession certificate as they are also successors.
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Pardeep Kumar Dhiman Dhiman
Responded 2 years ago
A.Aap ke father dwara chodi gai property par unke dwara chode gae sabhi successor ka barabar ka adhikar hai. Partikul possession ka right defendant ko hashil hai plaintiff ko nhi.
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A.Hi,
The legal heirs of your brother has also a rightful share in the property upon his demise. You cannot deny them their share. You can ask them to vacate their share, but if they aren't accepting, then you will have to give them their share.
The legal heirs of your brother has also a rightful share in the property upon his demise. You cannot deny them their share. You can ask them to vacate their share, but if they aren't accepting, then you will have to give them their share.
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A.No you cannot. The law of adverse possession is not as simple as it appears to be. Following essentials of adverse possession of property to be fulfilled before one can claim the property.
ESSENTIALS OF ADVERSE POSSESSION:
1. Property :- There must be certain property, which may be movable or immovable.
2. Nature of possession required over the property to constitute adverse possession :- In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. It is not sufficient to show that some acts of possession have been done.
3. Possession must be continuous:- To constitute adverse possession, possession must be continuous. But it is not necessary to establish possession of every moment of the requisite period.
4. Possession must be with intention of ouster of the real owner :- Animus possidendi necessary. Possession does not become adverse when the intention to hold adversely is wanting.
5. Dispossession of the true owner :- In reference to this point the term dispossession and discontinuance of possession are relevant. In dispossession a person comes in, and drives out another from possession. In discontinuance of possession, the person in possession goes out and is followed into possession by others. To constitute discontinuance of possession, there must be dereliction by the person who has right and actual possession by another, whether adverse or not.
6. Possession of another essential for dispossession :- ―Dispossession‖ implies the coming in of a person and driving out of another person from possession. ―Dispossession‖ implies ouster and the essence of ouster is that the person ousting is in actual possession of the property. The mere finding that the persons are not in possession of the disputed property does not decide the question, whether there was dispossession. Dispossession occurs only when a person comes in and drives out another from possession.
ESSENTIALS OF ADVERSE POSSESSION:
1. Property :- There must be certain property, which may be movable or immovable.
2. Nature of possession required over the property to constitute adverse possession :- In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. It is not sufficient to show that some acts of possession have been done.
3. Possession must be continuous:- To constitute adverse possession, possession must be continuous. But it is not necessary to establish possession of every moment of the requisite period.
4. Possession must be with intention of ouster of the real owner :- Animus possidendi necessary. Possession does not become adverse when the intention to hold adversely is wanting.
5. Dispossession of the true owner :- In reference to this point the term dispossession and discontinuance of possession are relevant. In dispossession a person comes in, and drives out another from possession. In discontinuance of possession, the person in possession goes out and is followed into possession by others. To constitute discontinuance of possession, there must be dereliction by the person who has right and actual possession by another, whether adverse or not.
6. Possession of another essential for dispossession :- ―Dispossession‖ implies the coming in of a person and driving out of another person from possession. ―Dispossession‖ implies ouster and the essence of ouster is that the person ousting is in actual possession of the property. The mere finding that the persons are not in possession of the disputed property does not decide the question, whether there was dispossession. Dispossession occurs only when a person comes in and drives out another from possession.
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Ayantika Mondal @ Prime Legal
Responded 2 years ago
A.Hi,
Since your father died inter-state, ie. without an will, you and your brother has equal claim in the parental property. So, after your brother's death, his legal heirs will have valid claim on the property, you cannot deny their share in the property.
If you like my answer, please rate me.
Since your father died inter-state, ie. without an will, you and your brother has equal claim in the parental property. So, after your brother's death, his legal heirs will have valid claim on the property, you cannot deny their share in the property.
If you like my answer, please rate me.
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