Property

An owner of a property is at will to use or not to use his property. However, if there is an intrusion and he does not take any timely action against the intruder, he loses the property. It sounds strange, but this is the law.

Adverse Possession is a legal doctrine that legalises occupation of a trespasser over a property. The claimant gets a right of ownership in the property if the real owner of the said property is sleeping over his right and does not take any action against the intruder (the claimant) who has enjoyed the possession of the said property for a sufficient period.

In Indian Law, the concept of adverse possession is explained under The Limitation Act, 1963. If the real owner does not claim his right against the intruder within a prescribed time, he loses his right, and the possessor (intruder) gets the ownership right.

Elements of adverse possession: There are certain elements which are necessary to form adverse possession. These are:

1.    Possession must be hostile to the owner:

• The claimant must possess the property with an intention to acquire the right through adverse possession. It is possession with a declaration of ownership against the original owner.
• A trespasser can occupy the land even by mistake or inadvertently
• No adverse possession if the trespasser had the authority to use the property, e.g. a tenant.

The possession should not have been obtained by

• Force
• Unauthorised means

2.    Period of possession – A claim of ownership through adverse possession can succeed in a private property if the trespasser has possessed the property continuously for 12 years. The period begins from the date the claimant (trespasser) is in adverse possession. For Government properties, the time is 30 years. This period varies in different jurisdictions. The owner has to bring an action within this limitation period.

3.    Possession must be actual, uninterrupted, continuous and exclusive. The claimant must be physically present and using the property. The claimant must be using the property exclusively.

4.    The public at large must be aware of the possession of the claimant. It is not the liability of the claimant to inform the actual owner, but the possession should be open to the extent that the real owner has the means to know that someone is occupying his property.

Defenses to Adverse Possession

The real owner can prove the absence of any of the above stated essential elements to defeat the claim of the intruder:

• The claimant has not possessed the property for requisite duration
• Use of the property was not uninterrupted and not continuous
• The property was not being used exclusively by the claimant. The owner was also using the said property
• The owner has permitted the claimant to use the property. In such a case, possession is not hostile
• Adverse possession does not help to get the title if the real owner is minor, of unsound mind or in armed forces.
• Government-owned land is sometimes exempted from adverse possession.

Need to relook: Many legal thinkers have criticised the doctrine of adverse possession as it helps the illegal occupants to get the title because of the inaction of the real owner. There is unjust enrichment. There is a need to relook into this law. Recent court rulings reveal that courts are now making it more robust for the illegal occupants to claim title through adverse possession.

Precautions that real owners can take to protect their property: Being vigilant is the key          

• Regular monitoring of the property – Especially in case of NRIs as they are more prone to losing their property to intruders.
• Building a fence or wall around the property
• Placing the signboards for trespassers

Right to property is governed by personal and statutory laws.

Once the mother (a woman) acquires any property through will or gift or by inheritance or it a self-acquired property, she becomes the absolute owner of the same.

Under Hindu Law, the property of a mother devolves as per the Hindu Succession Act, 1956 (the Act). The Act applies to intestate succession.

According to Section 15 of the Act, the following persons inherit a woman’s property after her death:

• Her children
• Children of predeceased children
• Husband
• Mother  and Father of the deceased mother
• Heirs of husband
• Heirs of father and mother

The order of preferences is as follows:

• Firstly, the children, children of predeceased children and husband
• Secondly, heirs of the husband
• Thirdly, her mother and father
• Fourthly, heirs of her father
• Lastly, heirs of her mother

Thus if a mother dies intestate, under Hindu law, her children, children of predeceased children and her husband have an equal right to the property. In their absence, the property is inherited by other heirs as per order of preference.

Right to mother’s property also includes right to the share of the mother in her father’s property, and children of a predeceased mother have a right to claim the  deceased mother’s share in  the property of her father: –

After amendment of the 1956 Act in the year 2005, daughters are coparceners and have equal rights as a son, in the property of their father. Thus if a daughter (who is a mother also) dies before the partition of her father’s ancestral property, the children of such pre-deceased daughter have a right in the ancestral property of their maternal grandfather and can claim partition.

However, during the lifetime of the mother, only the mother has a right to claim her share in this property of her father and as a son or daughter of such mother, the person can file a suit for partition only through power of attorney executed by mother in favour of her children.

In case of self acquired property of the father (i.e. maternal grandfather), if such father dies intestate, the son/daughter of predeceased daughter of such father are included in Class I heirs given in the schedule of the 1956 Act and have a right to claim their share.

After the partition of property in which a woman (mother) has a share, she becomes the absolute owner of her share:

Once the share of a daughter has been transferred to her after partition of the property of her father, she becomes the absolute owner of her share.

If a mother makes a will, the property bequeaths as per the will, and if the mother dies intestate, the laws of inheritance are applied as per the 1956 Act.

Distribution of the mother’s property between her son and married daughter:

Married daughter has equal right in the property of her mother as the son, and in case the mother dies intestate, the married daughter inherits her share equally with the son as per the Act of 1956.

Under Muslim Law, since the law is not codified, rights on the property of the mother are governed by personal laws.

For faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, devolution of mother’s property after her death is governed by India Succession Act, 1925. Generally, relatives of mother inherit and have priority over her husband and husband’s relatives.

Settlement deed is a legal document where parties to the deed settle their differences/disputes. The disputes may be related to court cases, property division, payments etc. A settlement deed between brother and sister living abroad may refer to any of these.

Generally, a settlement deed between brother and sister is a family settlement deed, and most often it is related to the division of property. Settlement deed is a legally enforceable document.

Requirements of Settlement deed

Settlement deed is essentially an agreement.

• Like any agreement, settlement deed has to be based on mutual consent of all the parties, and such consent should be free from coercion, fraud or misrepresentation.
• Settlement can be oral or written
• If in writing, it must be signed by all the parties
• Attestation by two witnesses

All the brothers and sisters must sign the settlement deed if it relates to the division of family property in which all have a claim. If any of the brother or sister is excluded, the deed is liable to be cancelled. Settlement deed once executed is binding between the parties to it.

Registration

A family arrangement can be oral or in writing. If it is oral, it does not require any registration, but if it is in writing, then the terms of the deed decide whether it is to be registered or not.

A family settlement deed between brother and sister for distribution of property must be in writing. In case of settlement deed for disposition of property, the property can be:

• Moveable – jewellery, shares etc
• Immoveable
• Cash in bank accounts

If the deed purports to assign an immovable property, the settlement deed must be mandatorily registered. The stamp duty is payable as per the value of the property.

If it is compulsory to register the document and the same is not registered, it carries no evidentiary value in the court. It may act as an estoppel against the family member who has signed the document and has gained out of it. However, if it is not mandatory to register a document and it is not registered, it can be used in evidence.

Payment of stamp duty and registration can be done through an agent (power of attorney holder for the s purpose) if the parties are NRIs and are not present in India.

Can the settlement deed be executed abroad?

The settlement deed between brothers and sisters residing abroad can be executed in the country where they reside. If the settlement deed relates to property division and has been executed abroad, the stamp duty is payable in India and registration, if mandatory, is done in Sub Registrar’s office where the property is located.

Otherwise also, for any document executed abroad and to be used in India, stamp duty is paid in India at the office of the Sub Registrar, within three months after it is first received in India. The concerned officer will authenticate the said document.

Any signed document should be presented for registration within four months of its execution. If the document is executed abroad, the time of four months begins from the date it is first received in India.

Grounds for challenging Settlement deed

Some grounds can be

• Coercion
• Fraud
• Misrepresentation
• Improper execution

As settlement deed can be cancelled if the parties mutually agree to do so by executing a cancellation deed. Otherwise, a suit can be filed challenging the same on any of the grounds available for the same.

It is always advisable to seek legal advice for the preparation of settlement deed and completing other legal formalities. A settlement deed is good alternative to litigation to settle disputes.

Land Kabza means someone else has occupied the land of an actual owner. The problem is common with NRIs as they cannot visit the place frequently and the property is left unattended for a long time. Grabbing such properties is easy.

Legal Advice and good property lawyer always help: It is sensible to hire a property advocate for proper legal advice to prevent Land Kabza and to take timely legal action in case of encroachment.

Here are the answers to certain queries that are often raised in this matter.

What is meant by land kabza?  

Land kabza means illegally occupying another person’s land by a person who is not legally entitled to the same. The Illegal occupation can be:

• By Force – land mafias generally occupy the land abandoned by owners
• By forging the documents of title – people occupy the land and also procure forged title deed in connivance with the local authorities
• Tenants who refuse to leave

What precautions are required to prevent Land Kabza?

A.    Documentation

• Property Documents: All property papers must be in order. A person who has invested and purchased any property or has acquired any property legally must ensure that the title deed describing him as the owner of the property is prepared and available with him.

• Payment of charges: The owner must have paid all the electricity, water bills and other government dues for the property and must preserve the receipts as these all assist in defending the ownership.

• Registration and mutation:  The owner must get the documents registered in conformity with the State Laws. Mutation of the property is also essential. Mutation means to inform the revenue authorities about the ownership of a property. Mutation is not one time process but has to be done regularly.

Rent Agreement: In case the property is on rent, a valid rent agreement with the tenant must be in place.

B.    General Precautions:

• Regular inspection of the property: The owner must visit the land frequently. In case of NRIs, it is not possible to physically inspect the site regularly; therefore, they can manage the same through a family member or a friend. A caretaker can be appointed to do important tasks.

• Fencing: In case of vacant plot or land, fencing should be there. Constructing a wall indicates that someone owns the property.

• A signboard warning the trespasser:The signboard helps to know that someone owns the land and trespassers will be prosecuted.

What are the remedies?

If the property is found to be the encroached, immediate action is required. First of all, the owner should ensure that he has got all the necessary documents proving his title/ownership with him and then:

• Inform the local authorities –revenue department etc.
• File a complaint with Police Authorities
• File a complaint in the court
• Negotiations also help in case the opponent has occupied the land inadvertently

Specific legal remedies:

• Filing a civil suit u/s 5 or 6 of Specific Relief Act, 1963 for recovery of  immovable property
• Executive Magistrate of the area takes action u/s 145 of the Criminal Procedure Code to prevent the breach of peace in case of property disputes.
• Action for the offence of trespassing and illegal dispossession under Indian Penal Code

Prevention is always better than cure so it is advised that owners must ensure proper documentation and regular inspection of their properties.

Among family members, to ascertain the right of one member in the property of another and distribution of property accordingly is not an easy task. It is always better to get legal advice for the same.

We decided to have a write up in one such matter and have tried to address the queries received by us.

Whether a brother has a right in his deceased brother’s property?

Yes, he has. It depends upon the personal law and statutory law governing the parties. It is different in Hindu Law, Muslim Law and the Indian Succession Act.

What is the share of a brother in deceased brother’s property under Hindu Law?

Under Hindu Law, the share is decided as per the Hindu Succession Act (HSA) and the nature of the property.

• If the property is ancestral, both the brothers have an equal share in the same being coparceners. The share of the coparceners in the ancestral property keeps on fluctuating till the time partition is effected.
• If the property is ancestral but has already been partitioned before the death or it is self-acquired property of the brother, devolution is as per section 8 of the Act.

What is the position of the brother as per Section 8 of the Act?

• As per Section 8 of the Act, brother is a Class II heir, and he gets the share in deceased brother’s property if no one is present in Class I heir and father is not alive.
• Class II heirs are divided into nine entries and brother falls in Entry II as described below:
  • Entry I –     Father
  • Entry II-     Son’s daughter’s son, Son’s daughter’s daughter, brother and sister
• There are a total of nine entries.
• Entry I gets preference over Entry II and so on. Within the entry, each of the heirs receives an equal share.

What is the share of a brother as per HSA?

• Brother is entitled to an equal share in the property with other class II heirs in Entry II. There are four heirs in Entry II.
• If A dies and he has a brother B and a sister C only. His property gets divided into two equal parts.
• If all the four legal heirs are present, the property gets divided into four equal parts.

What is the share under Muslim Law?

• Legal heirs under Muslim law are divided into sharers and residuary.
• Brother is a residuary heir. Therefore, the share of a brother in the deceased brother’s property depends upon the residue of the property left after sharers have got their share.

What is the position of a brother under Indian Succession Act?

Brother of a deceased brother inherits

• if the father is not alive and
• The deceased brother has left no lineal descendant, i.e. direct descendant. A’s child, and A’s child’s child is lineal descendants of A.

What is the share of a brother as per Indian Succession Act?

• If the mother of the deceased is living and there are surviving brother and sister and children of predeceased brother and sister, they all inherit equally. (Children of predeceased brother/sister inherit one share of their deceased parent among themselves)
• A has died, survived by mother M and a brother B and two children C and D of a predeceased sister. Here M will get one third, B will get one third, and C and D will share equally the remaining one-third share.

• If the mother is not living, then the property of the deceased goes to surviving brothers and sisters and children of predeceased brother /sister. All share equally with children of predeceased sharing one share of their parent equally among themselves.

Illegal transfers or mutation are a basic form of all property disputes that NRIs are faced with, and hence we have seen growth in Civil Lawsuit in India. You would always need to establish a clear title to stake your ownership. You would also need to change the ownership of the said piece of land or house in the name of the current living legal owners to avoid any fraud. Moreover, in case any fraud takes place, there needs to be clarity on the title to contest the case.

In India, the transfer is not an automatic process but often a time-consuming process under the law. If it is not done, then given the rampant land grabbing in India, in the absence of an updated title, it is assumed that the particular property is abandoned. The lack of action causes various property issues which give rise to a need for legal action such as filing of Civil Lawsuit in India.

There are different ways that a transfer can take place. Inheritance through a Will document or the law of natural succession in the absence of Will is two basic ways. In the latter case, inheritance is of class I legal heirs under the succession laws in India.

Also, if the owner is still alive and consenting to hand over ownership, he can gift it to you through a Gift Deed, which is a lawful way of undertaking a handing over or, change of ownership in the name of any relative or friend. Finally, a normal buy and sell procedure can take place too i.e. a registered sale deed. Whether the procedure has happened through a Will document or a Gift Deed, in most cases, NRI’s  have no trusted representatives in India, and this leads unnecessary harassment for them.

Property Disputes

Property Disputes have caused many a family to suffer. Hence these issues need due attention. Inheritance could bring along with it the complications of illegal transfers, possession or even sale by close relatives, trusted representatives and third parties.

Illegal transfers can happen in three main ways:

–    First, when there is forging or fabrication of documents like Wills – that is, making fake Will documents. This could be done by somebody to deprive the other shareholders of their due share. This is one of the most common methods, and here the defaulter takes advantage of the absence of the others and provides fake ownership to get control. For any mutation to happen, any one owner has to inform about the death of the previous owner. At times, one owner decides not to give the details like these for his selfish motive.

–    Second, impersonation is one of the common methods used too. In such cases, one party impersonates as a shareholder and produces himself in court for the same. Some of them are successful too. They manage to go and stake a claim on what belongs to somebody else. Therefore, a careful and proactive approach should be followed by all owners to avoid these fraudulent practices.

–    A third very obvious way is the misuse of the Power Of Attorney (POA) documents. In a host of cases, people end up giving general, non-restrictive POAs to their friends or relatives. In a lot of situations, people misrepresent, and there is a betrayal by even family members or close relatives, who give proof of utter mistrust and get properties transferred in their names. It is therefore advised that utmost care should be taken while granting a POA to anybody. Do not ever give any additional powers or you stand the risk of having them misused by vested interests.

The first two cases – false documentation and impersonation – can be challenged in courts if one files a Civil Lawsuit in India within the limitation period; the limitation period being three years of the date of knowledge of the said illegal transfer.

These two situations can invoke both civil and criminal litigation. However, in the case of improper misuse of POA, please be warned that hundreds of people have been deprived of their properties because of misuse of POA.

Being one of the top law firms in India, we use our best lawyer to represent, solve and finalize all such property disputes to suit the convenience of overseas citizens. In most situations, NRIs do not have the correct knowledge about procedures or formalities and so. Therefore we help them to file Civil Lawsuit in India and provide them sound legal advice to find solutions. NRI Legal Services is a trustworthy Law Firm in Chandigarh that is capable of handling all such issues for you.