Adverse possession time limit against predeceased mother’s son

505 votes

For adverse possession 12 years will be counted from the date when your brother first time claim the right in his property from that time 12 years must be passed without interruption this is not a rocket science but for more details you can consult a local advocate

Advocate Siddharth Dev LawRato

697 votes

dear sir
the concept of adverse possession is once a lawful owner knowingly well that his land is in possession of someone else and also declares him trespasser still does not seek possession of the same within 12 years then it is applied. whereas as far as your query is concerned the time will be calculated from the date of your knowledge that you are the lawful owner and the right to exercise the same has been declined by the one who is in the possession and thereafter within 12 years you do not take any steps or action then the concept of adverse possession will apply. whereas the concept of adverse possession is still very difficult to prove since it is a matter of evidence whether in what capacity the person in possession is living and why the lawful owner did not claim the same. but in any case you should not leave the claim just like that, atleast fight for the same.

Advocate Harshit Jain LawRato

880 votes

Sir first of all your question is not clear you are saying that you enter a partition deed in 1990 and the house came in share of brother A ..Did your brother had no legal heirs of his own ??Why the share is succeeded by mother.As per your question yes you can succeed the share by virtue of legal heir of your mother.Therefore the classification for succeeding the property as per transfer of property Act says that Class -I legal heirs then Class -II then agnates and cognates.So yes you can succeed the share and the statutory period of 12 years will start from death of your mother ,but need to clarify your question once more so feel free to get in touch.Thanks

Advocate Nishant Solanki LawRato

574 votes

As per my opinion, for the possession to be adverse the property in question must be specified and the person in possession must be in the capacity of a trespasser.

In the present case, the shares of heirs in an undivided property are uncertain as the specific portions of property have not been determined either by parties or by Court.

Having said that, in an appropriate case the Limitation period for adverse possession (Art. 64 Limitation Act) begins from the time possession becomes adverse to te rightful owner of the property. In your case, that would be when you (brother B) actually became the rightful owner of the share in mothers property I.e. on her death.

As for the other event i.e the death of brother A, it did not confer any cause of action of action on brother B since he had not acquired, owing A's death, any right in the said property. At this time Limitation period could be said to have commenced with respect to the mother. However when her share devolved on brother A, it was then that a fresy period of limitation started with respect to the share inherited by him.

Hope this helps.

Advocate Nikhil Sabharwal LawRato