Transfer of property - XIII

LEGAL ANGLE

Does a person having possession of immovable property obtain any right thereto without a document of title or transfer in his favour (by inheritance, purchase, gift etc.)?

Apart from the actual owner, a person in possession is also entitled to a right in the property. Possession itself is a substantive right of which the courts take notice and even a person in wrongful possession has rights with respect to the property against all persons except the true owner himself and those in earlier possession.

In such a case, the course available to the rightful owner would be to institute legal proceedings to recover possession from the person wrongfully in possession.

The law of limitation in India provides that any suit for the possession of immovable property or any right to immovable property must be instituted within twelve years of the possession of the defendant becoming adverse to the person instituting the suit.

Adverse possession must involve the exercise of a right so irreconcilable with those claimed by the person claiming title to the property as to give such person cause to dispute the possession throughout a period of twelve years immediately before the institution of the suit.

By adverse possession, the owner by the denial of his right is excluded from the use of his own property. To create such right by adverse possession, the possession must be exclusive and continuous in character.

The law expressly states that as soon as the right to sue for possession comes to an end i.e. on the expiry of the above mentioned period, the right to the property itself is extinguished.

In such a case, on extinguishment of the right to the property, title by adverse possession is bestowed on the person actually in possession of it for a period of twelve years.

Thus title can be set up merely on the ground of possession contrary to any right of the true owner.

Anand Desai is managing partner with Mumbai-based law firm DSK Legal. He will address readers' queries, which can be sent to real.estate@business-standard.com