Adverse Possession
Soma
(Querist) 11 September 2009
This query is : Resolved
One hindu died (before 15 year,, leaving two sons and one daughter. There is a will in favour of two sons.. nothing given to the daughter..
However daughter staying at the same house since birth and (even) after marriage with her husband since last 15 year..
Now one brother filed partition suit.. can the daughter and her husband claim adverse possession?
if not who and when can claim adverse possession?riven
Adinath@Avinash Patil
(Expert) 11 September 2009
Dear soma,
Daughter can not claim advers possession,If daugther living with the consent of her father & brother.
Daugther can claim Her share by challenging her father's will in partition suit.
riven
R.R. KRISHNAA
(Expert) 11 September 2009
A co-sharer or co-owner cannot claim adverse possession.riven
Soma
(Querist) 11 September 2009
thanksriven
Swami Sadashiva Brahmendra Sar
(Expert) 11 September 2009
In this case daughter need not claim adverse possession. she is owner being legal heir of her father and in the circumstances of this case she can not be austed from the house.riven
Soma
(Querist) 12 September 2009
Dr. Tripathi please mention on what ground ...as the will excludes the daughterriven
Raj Kumar Makkad
(Expert) 12 September 2009
If the property is ancestral, in that case the daughter has right of inheritance and if the same was self acquired in that case will shall prevail and the daughter shall have no right to claim ownership. The question of adverse possession doesn't arise at all.riven
Soma
(Querist) 16 September 2009
Thanks to allriven
a.manoharan
(Expert) 16 September 2009
Dear Soma
A co-sharer / co-owner / joint owner cannot claim adverse possession.Only 3rd party can claim adverse possession. Please inform the property is ancestral or self-acquired .riven
Soma
(Querist) 18 September 2009
thanks to allriven
V.V.RAMDAS
(Expert) 25 September 2009
Mr Makkad and Manoharnan had given correct answer.When there is will the daughter had nothing to say , if it is self acquired property of his father but if it is ancestral property than she has got right over the same. The three reqirements of posession ,to make the posession adverse i.e continuity, publicity and notoriety(hostile animus)denying the title of the trueowner. But it must be by a outsider not by the copartioner. person claiming adverse posession has to show (a) on what date he came inot posession,(b) what was nature of his possession, (c) whether factum of possession was known to other party, (d)how long his possession has continued, and (e) his posession was open and undisturbed- Such possession must start with a wrongful dispossession of rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
DR.P.L.NAWALKHA
(Expert) 29 September 2009
MR. MAKKAD IS RIGHT. OUT OF LOVE,AFFECTION,AND FACILITATING LIFE OF CHILD,SEVERAL PARENTS PROVIDE RESIDENCE AND WORK SPACE FACILITY TO GIRL CHILD.THE PROBLEM CROPS UP WHEN MANY OF SUCH PARENTS,WITH EXCLUSIVE,SON FIXED MINDSET MAKE WILL OF POSSESSION OF SUCH PROPERTIES IN FAVOUR OF SON ONLY.IF IN THE WILL IT IS SPECIFICALLY MENTIONED THAT GIRLCHILD WILL HAVE NO RIGHT,THEN SHE HAS NO RIGHT. IF THERE IS MENTION THAT SHE IS ONLY ALLOWED TO USE THE PREMISES,NOT AS RIGHT BUT AS USER ONLY,THEN SHE HAS NO RIGHT BUT CONTINUE TO USE TILL SHE FIND ALTERNATIVE SUITABLE ACCOMODATION. ABRUPT OUTSTING IS ILLEGAL.
Sachin Bhatia
(Expert) 29 September 2009
Co-sharer or co-owner cannot claim adverse possession moreover if the property is ancestral, in that case the daughter has right in that property but if it was self acquired by the father in that case will shall prevail.
Guest
(Expert) 08 October 2009
Daughter can claim her share by filing a suit and pray for injunction for the said property.Adverse possession is available against the original owner.
RASIK DAGLI
(Expert) 08 October 2009
Adverse Possession can not be claimed by a Co-Owner or Co- Sharer against other co-owner. Even it can not be claimed in the cases in which possession was acquired by permission or consent.
RASIK DAGLI
Advocate.
