Whether a Party can Claim Title by Adverse Possession and Inheritance Simultaneously? – The Judicial Analysis

Introduction

Rights and interests in property are the basis of property legal disputes. In property legal disputes there is the question of the rights and interests in that property. The judgement of a property dispute results in deciding the right title over the property. Title over a property provides a person with certain rights and interests over that particular property. The legal dispute around property mainly questions this title over the property. Therefore it is very important to decide the right title over the property because that will provide certain rights and interests to the parties to the dispute. The title is the legal way of saying that you own a right to something. For real estate purposes, the title refers to Ownership of the property, meaning that you have the rights to use that property. The title also means that you can transfer or portion that you can transfer that interest or portion that you own to others. There are various ways through which title over a property could be claimed. Such ways include by sale, gift, transfer, inheritance and adverse possession. Claiming title over property can be done through both inheritance and by adverse possession. There can be a dispute over claiming of title through inheritance and by adverse possession. This article attempts to analyze the dispute between claiming title through adverse possession and inheritance. 

Title by Inheritance

As per Britannica[1], Inheritance means “the devolution of property on an heir or heirs upon the death of the owner”. Inheritance is transferring or passing down title, debts, claims, and property to the legal heir consequent to the death of a person. Claiming the title of property by inheritance requires the presence of a succession of one generation to another. The claim of title by inheritance is generally governed by Personal Laws or any special legislation made for it. In the era of growing inflation and sky-touching prices of real estate, it is important to safeguard your property against any sort of alien claims on it. This can be done by obtaining a good title over the property. Although the transfer of title over property by inheritance is only done as a result of the death of a person, it is very essential to claim the title over the property inherited.

Laws on succession majorly deal with two types of conditions, firstly where the deceased has left a valid enforceable will and secondly where a person dies without leaving a will, more commonly known as Intestate. When a person makes a document describing about the distribution of property that document is known as a will. After the death of the person, the property would be divided as per the will written by the person. When the person dies without leaving a valid will then his distribution of property would be governed by personal laws. Claiming of title through inheritance can be done through the procedure set by the Personal laws.

Succession through Will is covered by the Indian Succession Act 1925 whereas the succession of the title without a will is governed through Hindu Succession Act 1956. In case of absence of a written distribution of property, the Indian Succession Act, 1925, becomes irrelevant due to the presence of the Hindu Undivided Family (HUF) in accordance with Hindu Law. The main objective of the act was to transfer property as per the custom of Hindu Law. The Hindu Succession Act covers only those people who are Hindu as per Section 2[2] of the Indian Succession Act 1956. Whereas the person covered under the Indian Succession Act 1925 is not only Hindu. 

Claiming of title over property through inheritance can be done in the two ways as discussed ways. One through making a valid will as per the provisions of the Indian Succession Act 1925 and the other through intestate transfer of property as per the personal laws. The Hindu Intestate transfer is covered through Hindu Succession Act 1956, whereas the Muslim intestate succession is based on basically 4 major sources. These 4 sources include The Holy Quran, The Sunna, The Qiya, and The Ijma. 

Claiming of title through inheritance can be through two ways; first one being through will and second through personal laws when will is not present. Claiming the title through inheritance can be done only by the heirs of the dead person and any third person can’t claim title over property through inheritance or succession.

Title by Adverse Possession

There is a legal principle that states that Law and equality are not provided to one who sleeps over his right. This principle aims to make people sensible about their right to claim an interest in the property within the stipulated and prescribed period. This principle states that someone who has forgotten all rights over a property can’t be permitted to re-enter the property. This concept is legally codified in the Indian Limitations Act which prescribes the limitation period in which the things should have been done.  Adverse possession is one of the conditions where the above principle is applied.

When the possessor of the property has been given the ownership over the property due to the fact that no one else came to claim his/her right over that property over a long period of time then it is known as inheriting the property through adverse possession. In alternative terms, any adversarial possession should not be kept hidden, as well as the individual in unfavourable possession should not recognise the genuine owner’s ownership and must dispute it. The adverse possession must be recognized to the individuals concerned in the land, albeit documentation of the unfavourable possessor telling the genuine owner of the former’s hostile behaviour is not required.

The Limitation Act 1963 is a key piece of legislation elaborating on adverse possession. According to Section 3 of the Limitation Act, 1963, no admissibility could be taken by the Court whereas if suit is effectively banned by limitation, that whether defendant has raised a defence or otherwise; however, it should be acknowledged that this same clause restricts just the redressal of the individual filing the suit and therefore not his legal rights. Nevertheless, there seems to be an exemption concerning withdrawal of rights underneath the Limitation Act, 1963, as given in Section 27, which states that if an individual does not take immediate steps to regain possession even during time of limitation, his rights are extinguished.

As per Section 27[3] of the Indian Limitation Act reads that in case an individual fails to bring a lawsuit for restoration of ownership under a certain time period, his right to reclaim custody of that property is ultimately lost. This circumstance gave rise to the theory of adverse possession. If an individual possesses properties in an adverse to the genuine owner’s stake as well as the genuine owner failed to bring a lawsuit for restoration of custody within a specified time, the individual in possession acquires the ownership of the asset through adverse possession.

The time period given to the owner to claim ownership over the property is given under Article 65[4], Schedule I of The Limitation Act. This article prescribes the duration of 12 years for a suit for possession of immovable property or any interest therein based on the title. Therefore when a property is possessed by a person other than the owner and the owner does not file a suit for recovery of possession within 12 years then the possessor would gain title over the property through adverse possession. The person claiming the title through adverse possession must have true intention to deny the right of the owner.

Claiming of title through adverse possession is done under the Indian Limitation Act and not under any other legislation or act of parliament. Claim of title by adverse possession can only be done by a third person who holds the possession of the property without ownership.

Important Judgements on Adverse Possession and Inheritance

  1. Karnataka Board of Wakf Vs.GOI[5]

In this case the Hon’ble Supreme court held that the owner of the property would be deemed to be in possession of a property until and unless there is a claim against the ownership. Generally non-use of owner’s right over the property by an owner would not deny his right over the property. His right could be challenged only when a third party obtains the possession over the property and exercises his possession as an owner. Furthermore, if the owner doesn’t claim backs the possession of the property from the third party over a period of time then he would lose all his rights as an owner and the third person would be declared owner as per the doctrine of adverse possession. The law of adverse possession is based on the default of the owner of the property while realisation of his rights over the property.

  • Amarendra Pratap Singh v Tej Bahadur Prajapati[6]

The Supreme Court stated concerning adverse possession 一 “A person, though having no right to enter into possession of the property of somebody else, does so and continues in possession fixing title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on a part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

  • Phoda Devi & Ors. v. Ganesh Mahto[7]

This case was an appeal to a judgement by appellant court. The broad facts of the case are regarding a disputed piece of raiyati land for a part of which the defendant’s father was appointed as Dar-riyati, who had apparently surrendered the land back to the plaintiffs after conducting a land survey and after a duly executing a Bajidawa deed in favour of plaintiffs. The case of the defendants was that their father was paying rent on several plots of parts of this raiyati land and still had possession and that the defendant had been in continuous possession of this land. It was further claimed that after his father’s death, the defendant had inherited this land, and that Dar-raiyats could not be ejected by Raiyats (plaintiffs) and Dar-raiyat’s interest was inheritable and transferrable as per the law and customs prevailing in the village. Thus, according to the defendants, the plaintiffs had no possession over any plot of the disputed land.

The Hon’ble High court decided in this case that the defendant’s arguments were missing essentials of valid adverse possession because he failed to claim the title through inheritance. He could not prescribe adverse possession against the plaintiff; the court found that suit was not barred by adverse possession. Furthermore, the court held that there can’t be claim for title through adverse possession and inheritance simultaneously.

Conclusion

Title over a property is very important to exercise one’s rights on that property. Without having title on a property I can’t exercise any right over that. Claiming of title is done through various ways including sale deed, gift deed, will, succession and by adverse possession. The two ways of succession and adverse possession have been discussed above. Inheritance is transfer of title over the property from a person to his heirs upon his death. Adverse possession is granted when the possession of a third person over the property has not been challenged by the true owner within a limited period of time. Adverse possession is a concept that is based on the principle that when someone sleeps over his rights he can’t be allowed to claim his right back. Judgements by Indian Courts have cleared the concept of adverse possession from time to time. A person can’t simultaneously claim title through inheritance and through adverse possession. Because in adverse possession you need to show that you were not the owner of the property and you are a stranger to the property whereas while claiming the title for succession you are not a stranger to property. Therefore claiming of title by inheritance and adverse possession can’t be done simultaneously.


[1] Britannica, https://www.britannica.com/topic/inheritance-law, 14-04-2022

[2] The Hindu Succession Act, 1956, § 2, Act 30 of 1956, Acts of Parliament, 1949 (India)

[3] The Indian Limitation Act, 1963, § 27, Act 36 of 1963, Acts of Parliament, 1963 (India)

[4] The Indian Limitation Act, 1963, Article 65, Schedule I

[5] Karnataka Board of Wakf Vs. GOI, 1( 2004) 10 SCC 779

[6] Amarendra Pratap Singh v Tej Bahadur Prajapati, (2004) 10 SCC 65

[7] Phoda Devi & Ors. v. Ganesh Mahto, 2022 Live Law (Jhar) 7

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