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Prakash Narrain (Professional)     17 September 2010

Adverse Possession

Can a tenant claim adverse possession after 12 years if the landlord was absent overseas for this period and then returns? Or does tenant have to prove that he took some "hostile" action such as entering the land by forced occupation or attempting to obtain title in his name?


I look forward to the thoughts of the learned forum members on this issue.



Learning

 12 Replies

Adv Archana Deshmukh (Practicing Advocate)     17 September 2010

If he is a tenant and has been living as a tenant in the property, he cannot claim the property by adverse possession, eve.though he might have been living there for more than 12 years and the landlord was overseas.

2 Like

adv. rajeev ( rajoo ) (practicing advocate)     17 September 2010

I do agree with Archana

Prakash Narrain (Professional)     17 September 2010

Thank you Ms Archana for the clarification.


To add further, I should say that the "tenant" has not being paying rent for this 12 year period, nor did the landlord make any attempt to collect it. So the "tenant" entered the property as a tenant, although he is not in practice a tenant since he is not paying rent.

As I understand the law of adverse possession, nobody can sue for it, but simply use it in their defense if sued for possession of property by the holder of the title.


How would the courts assess "adversity" in this instance, seeing as the person who entered the property as tenant has done no more than passively enjoy it in the absence of the landlord? Does the court automatically side with the occupier because he did not pay, and the landlord did not collect, rent?


Thanks again for your help.

Adv Archana Deshmukh (Practicing Advocate)     17 September 2010

Though the tenant is not paying the rent or the landlord have not cared to collect the rent. Such possession for however long period not 'adverse' to that of the landlord. So, the tenant cannot become owner by way of adverse possession.

1 Like

Prakash Narrain (Professional)     17 September 2010

Thank you Ms Archana, again. That clarifies the matter.

srinivasulu yangam (Sr. Manager)     22 December 2012

Inheritance adverse possession-kindly clarify

srinivasulu yangam (Sr. Manager)     22 December 2012

Elder sisters married off for more than 30 years their families settled and welloff , younger brothers just settling in life married and going for property partition deed, what shall be the inheritance status of the sisters? kindly clarify. 

Advocate Vishnu (Advocate)     24 December 2012

All the coparcenors have equal rights in the ancestral property as per the amended Hindu Succession act of 1956

If the elder sisters are well off , then the brothers can request them to relinquish their rights on the said property.

srinivasulu yangam (Sr. Manager)     25 December 2012

Thanks Mr.Vishnu for the valuable reply . Dear Sir, please clarify if the property is self acquired and the person dies intestate leaving behind an unmarried daughter and married daughters who have been married long time back before his death, sons and widowed wife.   

Thanks once again, Mr.Vishnu.

srinivasulu yangam (Sr. Manager)     27 December 2012

Thanks Mr.Vishnu,

For resolving the issue of coparcenors rights in the ancestral property, kindly suggest if the property is self acquired what shall be the issue. Further please clarify whether the amendments made to the HSA 1956 in 2005 by the parliament  is unique and apply to all the states in India or exempted in the states of Andhra pradesh,Tamilnadu, Karnataka and Maharastra where amendments made in 1994 are still in vogue(not sure please).

Please clarify, once again thanks.

Regards

srinivasulu yangam

Advocate Vishnu (Advocate)     28 December 2012

If the property is self acquired and the person dies intestate, all the legal heirs have an equal right over the said property. It does not matter whether they are married or not. so if some of the legal heirs are well off, they can relinquish their right  over the said property so that other siblings can benefit from the said property.

The Amendment passed in 2006 is valid throughout India  as it was passed in the parliament and no state is exempt from it . The old laws of the states you mentioned will not have force of law from the day the amendment was passed in the parliament.

srinivasulu yangam (Sr. Manager)     29 December 2012

Thanks once again Mr.Vishnu,

Yours timely reply to my querry has resolved the issue, and confusion, misintepretation of law that prevailed has some aswer now. Since we all struggle to be law abiding citizens it is an opportunity well facilitated by the LCI to the layman people like us to post queries to the legal experts and get their opinions. I thank once again to the all involved.

Regards

Srinivasulu Yangam


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