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Rahul999999 (N/a)     06 July 2021

Query on property inheritance through will

 

An immovable property built by Mr. A who died intestate was inherited by his 3 legal heirs: his widow & his 2 sons. Property mutation was done accordingly however the property remains undivided. In this case can ANY of these 3 legal heirs WILL away their share of the property? Also ever since the widow of Mr. A passed away 15 years ago, one of the sons has lived in the property with his family,  solely paid relevant taxes and performed necessary maintenance of the property while the other  son has not lived in the house for the last 30 years. He has paid a few visits over the years. In this scenario, can the son who has lived in the property claim the property through law of “Adverse Possession” ?



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 9 Replies

Advocate Bhartesh goyal (advocate)     06 July 2021

No , law of adverse possession does not apply on co -owners and co sharerers Other son is co owner of the property.It is immaterial that property is being used by only one son and he is paying taxes and maintaining  property .

3 Like

G.L.N. Prasad (Retired employee.)     06 July 2021

Adverse possession claim is not tenable, as the mutation records disclose all the legal heir's names.  When the property is not divided into metes and bounds, disclosing the schedule of the property with specific boundaries of each co-sharer, the property in possession by one of the co-sharer is that of a trustee.  The other co-sharer may even claim mense profits as the one is occupying the house without rent.  Let the disputes be settled amicably through proper settlement deed and do not invite complications with half-baked knowledge and assumptions that paying taxes and maintaining the property and enjoying property free of rent entitles a co-sharer for adverse possession..

P. Venu (Advocate)     06 July 2021

The facts posted do not form the basis for any claim based on adverse possession.

1 Like

Rahul999999 (N/a)     06 July 2021

Thanks for the helpful replies. Looks like the first question in my post was missed out ! Here it is again:

An immovable property built by Mr. A who died intestate was inherited by his 3 legal heirs: his widow & his 2 sons. Property mutation was done accordingly however the property remains undivided. In this scenario can ANY of these 3 legal heirs WILL away their share of the property?

Dr J C Vashista (Advocate)     07 July 2021

Yes, either of the three can bequeath his / her share in the property.

1 Like

P. Venu (Advocate)     07 July 2021

Yes, any of the  co-occupants/joint-holders can bequeath his/her share of the property, though undivided.

1 Like

G.L.N. Prasad (Retired employee.)     07 July 2021

If a members wants replies he has to number the queries, and if not, the replying members take the final question with such question tag and provide a suggestion.

Also ever since the widow of Mr. A passed away 15 years ago, one of the sons has lived in the property with his family,  solely paid relevant taxes and performed necessary maintenance of the property while the other son has not lived in the house for the last 30 years. He has paid a few visits over the years. In this scenario, can the son who has lived in the property claim the property through law of “Adverse Possession” ?

The property is not divided into metes and bounds in between the three legal heirs and there is nothing on record that shows who acquired what part and such boundaries.  Mutation can neither bring or lose rights on property stated in the will.

Then the son is definitely a trustee for the undivided property, which shows a mutation in 3 names without such division in individual names.

The query is finally on Adverse possession by one to grab the entire property when he is a trustee of all co-sharers and only entitled to his proportionate share alone and his claim is that he is residing in the house, paying taxes and maintenance stating that other co-sharer rarely visits to the property devolved on him through a will and mutation records confirm his joint ownership of undivided property !!!!!!!!! (hence adverse claim by the co-sharer who is residing in undivided property)

 

M V Gupta (Advocate)     07 July 2021

TO SUM UP THE LEGAL POSITION, IT MAY BE STATED -- THE SON WHO IS STAYING IN THE PROPERTY CANNOT CLAIM THE ENTIRE PROPERTY ON GROUND OF ADVERSE POSSESSION. EITHER OF THE SONS CAN WILL AWAY OR EVEN GIFT OR SELL HIS UNDIVIDED SHARE TO ANY ONE HE DESIRES.

1 Like

Rahul999999 (N/a)     07 July 2021

Thanks for the additional replies...it clears things up.


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