Civil Procedure Code (CPC)

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Jayesh Varyani (nil)     25 May 2021

Title of property to the one who resides

Hi, 

My Aunt have a property  in which she is residing with her family since it's purchase. Her husband bought it 25 years ago on the name of his younger brother (due to love and affection) but they have been living there since it's purchase. Her husband died 5 years ago. But still they have been living in that property till now. Her Husband's Younger Brother resides in another property nearby whose ownership is with her Mother in Law. Her husband's younger brother is a loan defaulter and closed many buisness due to losses.  Today some bank employees came who took pictures of their property and went away to talk with her Husband's Younger Brother. She overheard them, her Husband's h younger brother have given a guarantee of someone's loan by showing the property in which they reside. 

 I wanted to know can we claim title of the property back by any means? Since her husband's younger brother never resided in this property neither there is any tenancy agreement between them. He just holds the title. Infact my aunt pay all the bills of that Property. Please suggest if there is any way to reclaim title of property. 



 11 Replies

Sankaranarayanan (Advocate)     25 May 2021

He just hold the title means. It means the property  title is stands in the name of  that  brother then he has right over the property. so better to get clarity  with the support of all papers and records from the local advocate and act accordingly 

G.L.N. Prasad (Retired employee.)     26 May 2021

Contact a local advocate as many details are missing.  If the property was acquired in the name of the younger brother, when he was a minor or when he is not having such age and avocation to acquire the property, your mother can argue that father has acquired the property with his self acquired income and kept in the name of his younger brother.  The bank can proceed with ease on specific property mortgaged but if the property is a separate property of the guarantor, it is not that easy to get such possession when a family was residing for more than 25years.  There is no mention of the name of the owner as per Municipal records/tax paid receipts.  Every step should be cautious, as there is no mention as to the claim of the younger brother on the property till now.  If there is a wrong step, the younger brother may claim the property as his exclusive property, and hence it is always proper to remain silent. Respond through Advocate at appropriate time when you are compelled to make a statement.

Let the younger brother fight it out.  If once he makes some statement that the property belongs to the eldest brother, thank heavens as there is no possibility of litigation with him as the fact was admitted by him in writing.

1 Like

M V Gupta (Advocate)     26 May 2021

In the circumstances mentioned by you, residence in the property for a long period does not confer title to property. The odds would be against your Aunt if she tries to claim title to the property now. 

1 Like

sneha jaiswal   26 May 2021

Hello, Greetings of the day!
For the query you posted, 
Your Aunt husband’s younger brother holds the title of the property. He has the right over the property because on his name only, the title of the property is registered. For claiming the title of the property, I would suggest that with all the documents like bills which your aunt is paying, take them to the local prudent lawyer and he will better help you with all the matter concerned and may help you to get back the claim of the concerned property.
Hope it helps
Regards,
Sneha Jaiswal
Law Student

1 Like

T. Kalaiselvan, Advocate (Advocate)     26 May 2021

The possession of the property by your aunt is adverse to the title holder.

The title holder never took any step in the past 25 years to evacuate your aunt's family members from that property.

Besides your aunt is the one who is paying the property tax, electricity consumption bills, water tax etc, which are some of the substantial documentary evidences to prove her possession and enjoyment of the property in question. 

Under the doctrine of adverse possession, a person who is not holding the title to the land but holding the possession of the land owned by someone else for a considerable period may acquire a valid title to it, provided that the adverse owner is in possession for a sufficient period as per the Limitations Act.

Elements establishing adverse possession

  1. CONTINUITY IN ADVERSE POSSESSION: The Possession and occupancy of the property by the trespasser/claimant shall be continuous, uninterrupted and unbroken for the entire statutory limitation duration.
  2. HOSTILE POSSESSION:   Hostile Possession means that the Claimant/ occupier is occupying the land despite knowing that he/she doesn’t hold any legal title to occupy or possess the said property.. There will be no conflict or conflict about the title as long as the claimant continues to claim the land and hold it against the interests of the owner and the world as a whole. Possession must be aggressive from the start and must continue throughout the limitation period.
  3. Actual possession: an adverse possession must be actual possession, such as the construction of a house, the erection of a shed or some structure, the fencing of a property
  4. EXCLUSIVE POSSESSION: During the statutory limitation period, the claimant must be in the sole physical possession of the property against the legitimate right, assertion, and title of the rightful owner or other claimants. 
  1. Section 27 Extinguishment of right to property- For instituting any suit for the possession of any property, any person needs to filed the suit within a limitation period else his right to such property shall be relinquished.
  2. According to Article 64 of the Limitation Act, 1963 the limitation period is prescribed of 12 years for a claim based on the previous possession; not on the title. 

It is evident from the above provisions of the Limitation Act, 1963 that if the claim for possession is not filed within the prescribed limitation period, then the right of the owner based on title or possession shall be extinguished and the owner who has the possession of the immovable property shall become the owner by the right.

 

In view of the above said contents, your aunt may file a suit for declaration of title to the property perfecting the law of adverse possession. 

 

1 Like

G.L.N. Prasad (Retired employee.)     27 May 2021

This is your original query: Today some bank employees came who took pictures of their property and went away to talk with her Husband's Younger Brother. She overheard them, her Husband's h younger brother have given a guarantee of someone's loan by showing the property in which they reside.   I wanted to know can we claim title of the property back by any means? Since her husband's younger brother never resided in this property neither there is any tenancy agreement between them
With the permission of an owner, a tenant can live  and the person residing with permission of owner can not claim adverse possession.   There are several things to look into.  The utmost priority is Your uncle's stand.  You are in no way involved in the present context.  Let your uncle declare in writing that it is his brother's property kept in his name, and he never resided in that, and it was purchased by his elder brother in his name etc.  All this will go in your favour.   According to my knowledge, this is not your issue for the present with bank, and is in between your uncle and bank.  Cross the bridge when it comes to create any notice on your own for the present.

P. Venu (Advocate)     27 May 2021

Yes, many details are missing. All the more so, because you supplied irrelevant and unconnected materials to render the query out of focus and the issue incomprehensible:

"Younger Brother resides in another property nearby whose ownership is with her Mother in Law. Her husband's younger brother is a loan defaulter and closed many buisness due to losses.  Today some bank employees came who took pictures of their property and went away to talk with her Husband's Younger Brother. She overheard them, her Husband's h younger brother have given a guarantee of someone's loan by showing the property in which they reside." 

How is it her Mother in Law?

"She overheard them"  Who is this she?  And all the more how you are in the know of what a third person has overheard?

Further, what is your locus or standing in the issue? How you are related to the so-called aunt? Has the any children or brothers who can take care her, if at all she is in a position to take care of herself?

The posting suggest itself to be less than honest when, admittedly, the younger brother has never requested or suggested the sister-in-law to vacate.

So also it is strange that the elder brother has purchased the property in the name of the younger brother due to "love and affection" Was the elder brother married at that and if so, his wife had consented to such an arrangement? And, what was the source of funds for the elder brother to make purchase?



 

Jayesh Varyani (nil)     27 May 2021

Thanks for relevant and accurate reply.

I will contact you in the above matter.

G.L.N. Prasad (Retired employee.)     27 May 2021

The members can only guide you with a route map to reach your destination, and they cannot make a journey with you to the destination.   Trust a local advocate with all relevant documents.

P. Venu (Advocate)     27 May 2021

Originally posted by : Jayesh Varyani
Thanks for relevant and accurate reply.

I will contact you in the above matter.

You are welcome to contact me. However, having raised the query in this platform and, in my reading, the query suggests deeper issues as highlighted in my previous posting, propriety requires that  relevant and material facts are disclosed in this forum.

adv. rajeev ( rajoo ) (practicing advocate)     30 May 2021

In whose name property stands such person has got tittle over that property.  The property documents must be clear


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