Adverse possession between family members and co-owners

Many property disputes in Coimbatore are within families. One brother stays on the ancestral land and cultivates it while the others move to the city or abroad. Decades later, when partition is asked for, he says the land is his by adverse possession. Does the claim succeed? Usually not, and the reason lies in a rule specific to co-owners.

The basic rule: possession of one is possession of all

Co-owners, such as heirs who inherit property together, each have an interest in every part of the property. When one of them occupies it, the law presumes that they do so on behalf of all the co-owners, not against them. So a co-owner’s long, even exclusive, occupation is not by itself hostile to the others.

Ouster: what must be proved

A co-owner can acquire the shares of the others by adverse possession only by proving ouster. The Supreme Court’s decisions, from P. Lakshmi Reddy v. L. Lakshmi Reddy (1957) onwards, require:

• an open assertion of a hostile title to the whole property, not a secret intention;
• exclusive possession that excludes the other co-owners;
• knowledge of the other co-owners of that hostile claim; and
• continuation of that state of affairs for the full 12 years.

In Karbalai Begum v. Mohd. Sayeed (1980), the Court held that co-owners hold as constructive trustees for one another, and that a co-owner who does not share in the income is not, for that reason alone, ousted.

What usually does not amount to ouster

• One co-owner living in the family house while the others live elsewhere.
• One co-owner cultivating the land and keeping the income.
• The patta, tax receipts or electricity connection standing in one co-owner’s name.
• The other co-owners not asking for partition for many years.

When the claim can succeed

The position changes once a co-owner clearly and openly claims the whole property as their own, and the others know of it. Examples are a public denial of the others’ shares, a sale of the whole property as sole owner to the others’ knowledge, or a written assertion that the others have no right. If the other co-owners then do nothing for 12 years, a later suit for partition or possession may be barred. Courts have refused partition where co-owners knew for more than 12 years that one of them was openly treating the property as exclusively theirs and took no action.

Daughters and the joint family

For Hindu joint family property, daughters have been coparceners with the same rights as sons since the 2005 amendment to the Hindu Succession Act. In Vineeta Sharma v. Rakesh Sharma (2020), the Supreme Court held that this right does not depend on the father being alive on 9 September 2005. A brother in possession of the family property therefore holds for his sisters too, and the ouster rule protects them in the same way.

Practical steps for families

• Partition early. A registered partition deed, or a partition by court decree, removes the uncertainty for good.
• Record family arrangements. If one member is allowed to occupy or cultivate, a short memorandum signed by all saying so is valuable later.
• Watch the revenue records. If someone tries to transfer the patta to their sole name, object in writing to the revenue authorities at once.
• Act on any hostile claim. The moment a co-owner denies your share in writing or tries to sell the whole property, take advice and consider a suit for partition and an injunction. That denial may be the date from which time starts to run.

Common questions