Question1 What is ancestral property ?
1. Property inherited up to four generations of male lineage, which means father, grandfather, great grandfather and great-great grandfather is called ancestral property. It should have remained undivided till the fourth generation upwards.
2. Unlike other forms of inheritance, where inheritance opens only on the death of the owner, any right to a share in such a property accrues by birth itself.
3. Ancestral property could include self-acquired property as well. This is a matter that is determined on the basis of facts and circumstances of a case.
4. Any property divided through a partition deed, family arrangement, etc. loses its ancestral character. "The pre-requisite is that the property should not have been divided by the users in the Hindu undivided family as once a division of the property takes place, the share or portion which each coparcener gets after the division becomes his or her self-acquired property," says Hardeep Sachdeva, senior partner, AZB & Partners. The Supreme Court in 2016 has given a judgment to the effect that any property which has been previously partitioned or which has been distributed in accordance with Section 8 of the Hindu Succession Act, 1956, on principles of intestacy ceases to be joint family property and no suit for partition can lie in respect to such property.
7. Property inherited through Will and Gift are not ancestral properties.
The HSA comes into question when a Hindu dies intestate (without leaving a will). Thereafter, succession depends upon the rules as carried in the HSA. In case of a Hindu man dying intestate, his property goes to the following and in this order of preference. The following chart shows the rightful heirs as per HSA.
| Class-I heirs | Class-II heirs | Agnates | Cognates |
| i. Son ii. Daughter iii. Widow iv. Mother v. Son of a predeceased son vi. Daughter of predeceased son vii. Widow of predeceased son viii. Son of a predeceased daughter ix. Daughter of predeceased daughter x. Son of predeceased son of predeceased son xi. Daughter of predeceased son of a predeceased son xii. Widow of predeceased son of a predeceased son | i. Father ii. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister iii. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’ daughter’s son, (4) daughter’s daughter’s daughter. iv. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter. v. Father’s father; father’s mother. vi. Father’s widow; brother’s widow. vii. Father’s brother; father’s sister. viii. Mother’s father; mother’s mother ix. Mother’s brother; mother’s sister. | Example: Father’s brother’s son or even father’s brother’s widow. Rule 1: Of two heirs, the one who is in nearer line is preferred. Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor. Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. | Example: Father’s sister’s son or brother’s daughter’s son Rule 1: Of two heirs, the one who is in nearer line is preferred. Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who is closer to the common ancestor. Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously |
*Note: Agnates are relations through the males but not by blood or adoption. These can be relations through marriages. Cognates are relations through the females.
An irrevocable
power of attorney is a document used in some business transactions.
Durable powers of attorney are typically given to give someone
the authority to make decisions on your behalf in the event of an
accident. Irrevocable power of attorney is in effect during the waking
life of people. Prior to the Supreme Court judgement on Oct 11, 2011,
power of attorney was not irrevocable. It was possible to change the
details mentioned in the POA. However, post the SC verdict, the POA becomes
irrevocable when it is coupled with registered agreement to Sell, and
consideration paid in the Sale Agreement
Like any power
of attorney, an irrevocable power of attorney gives an agent (the
attorney in fact) the authority to make decisions, enter into
contracts and generally act on the behalf of the person granting the power (the
principal). Irrevocable powers of attorney are relatively rare, though,
because they essentially operate like any other power of attorney, but are not
unilaterally revocable by the principal. An irrevocable power of attorney can
have a sunset provision, ending the assignment on a particular date or
condition, but remains irrevocable until that time unless the parties agree to
terminate
· The Court upheld the decision of courts below placing
reliance upon Section 202 of the Indian Contract Act as also the judgment
delivered by this Court in the case of Shri
Ramesh ChandSuresh Chand, 188 (2012) DLT
538 which holds that documents which are in accordance with the amended
Section 53A of the Transfer of Property Act, 1882 and executed prior to
24.9.2001 when by Act 48 of 2001 Section 53A of the Transfer of Property Act
was amended to require compulsory stamping and registration of an agreement to
sell, then such documents prior to 24.9.2001 are valid documents because the
amendment to Section 53A of the Transfer of Property Act is prospective in
nature.
· The Court also held that – this aspect is
clearly stated by the Supreme Court in the judgment in the case of Suraj Lamps and Industries Pvt. Ltd.State of Haryana,
183 (2011) DLT 1 (SC) wherein the Supreme Court has held that those agreements
to sell, power of attorneys and Wills, which are in accordance with Section 53A
of the Transfer of Property Act, Section 202 of the Indian Contract Act and the
relevant provisions of the Indian Succession Act, the same will continue to be
valid i.e documents executed prior to 24.9.2001 being in accordance with the
then existing Section 53A of the Transfer of Property Act which did not require
stamping and registration of the agreement to sell would be valid documents.
IN THE MATTER OF HARDIK
KAUR V. KAILASH (S.B.) 193 (2012) DLT 168 IT WAS
STATED “THE WORDS” AND INTEREST IN PROPERTY WHICH FORMS THE SUBJECT MATTER OF
THE AGENCY” IN SECTION 202 OF THE CONTRACT ACT, 1872 ARE OF WIDER AMPLITUDE
THAN THE WORDS “AN INTEREST IN OR CHARGE ON SUCH PROPERTY” IN SECTION 54 OF THE
TRANSFER OF PROPERTY ACT, 1882. WHERE THE SELLER HAS RECEIVED THE SALE
CONSIDERATION IN PURSUANCE OF THE AGREEMENT TO SELL AND HAS DELIVERED THE
POSSESSION TO THE PURCHASER, THE PURCHASER WOULD HAVE INTEREST IN THE PROPERTY
WITHIN THE MEANING OF SECTION 202 OF THE CONTRACT ACT”
PLACING RELIANCE ON JUDGMENTS OF THE HON’BLE HIGH COURT OF
DELHI INRAMESH CHANDV. SURESH CHAND, 188 (2012) DLT
538 AND HARDIP KAUR V. KAILASH SUPRA, IT IS HELD
THAT DEFENDANT NO. 1 IN THE MATTER AT HAND THUS MAY NOT BE A CLASSICAL OWNER AS
WOULD BE IN CASE OF A REGISTERED SALE DEED, HOWEVER, THEY WOULD HAVE CERTAIN
RIGHTS AND ENTITLEMENT OVER THE PROPERTY. FURTHERMORE THIS COUPLED WITH THE
FACT THAT THE DEFENDANTS ALSO HAVE ACTUAL PHYSICAL POSSESSION, BUILDS A STRONG
CASE IN THEIR FAVOUR. THUS, THE INTEREST CREATED BY THE AGREEMENT ENTERED INTO
BETWEEN THE PARTIES STILL LIES WITH THE DEFENDANT.
Case Note on : Vimla Devi v. Pushpa Devi
and Anr- 2017 SCC OnLine Del 8694
In this case, Hon’ble High Court of
Delhi had the occasion of examining the above question.
The facts of the case lie in a very
narrow conspectus:
Plaintiff’s case
Conventional (purported) sale
documents
The Plaintiff/Appellant claimed that she
was the owner of 200 sq. yards of the property situated in Shahdara, Delhi. Out
of the area of 200 sq. yards, the appellant/plaintiff sold 70 sq. yards to the
respondent no. 1/defendant no. 1 on 11.2.1998 for a sale consideration of Rs.
1,75,000/-.
On 11.2.1998, appellant/plaintiff
executed a conventional set of documentation being the agreement to sell,
general power of attorney, Will, receipt, etc. in favour of the respondent no.
1/defendant no. 1. (These documents used to be executed in order to avoid stamp
duty/registration charges, and when Sub Registrars would not recognise Sale
Deed(s) in an unauthorised colony/area. For a more detailed discussion of
validity of such documents, see Suraj Lamps and Industries Pvt. Ltd.State of
Haryana, 183 (2011) DLT 1 (SC).
Cancellation of those documents
The area of 70 sq. yards consists of two
rooms, a latrine and a bath room, and possession of which was taken by the
respondents/defendants on 11.2.1998. It was further pleaded in the plaint that
since there was non-payment of the entire consideration, hence the
appellant/plaintiff cancelled the documentation dated 11.2.1998 by the
cancellation document dated 6.4.1998, and appellant/plaintiff also sent a legal
notice of the same date to the respondents/defendants.
It was further pleaded that inspite of
cancellation of the documents on 6.4.1998 the respondents/defendants did not
vacate the suit property, and hence the subject suit was filed.
Defendant’s stance
The suit was contested by the
respondents/defendants. It was pleaded by the respondents/defendants that
complete consideration of Rs. 1,75,000/- was paid when the documents dated
11.2.1998 were executed in favour of the respondent no. 1/defendant no. 1.
It was also pleaded that the appellant/plaintiff
with dishonest intentions cancelled the documents on 6.4.1998. It was pleaded
by the respondents/defendants that appellant/plaintiff had no authority to
cancel the documents and hence the cancellation has no significance to the
purchase of the suit property by the respondent no. 1/defendant no. 1. The
respondents/defendants pleaded that the adjoining 130 sq. yards to the plot of
70 sq. yards was already owned and was in possession of the
respondents/defendants, and hence the respondents/defendants are in possession
of the whole 200 sq. yards. The suit was accordingly prayed to be dismissed.
Main Issue Before the Court
The main issue which arose was whether
GPA/and other documents in this case constituted ‘agency coupled with interest’
and therefore irrevocable? If yes, what is the effect of the registered
cancellation deed?
Decision
The Court held that the cancellation of
the documents dated 11.2.1998 by the appellant/plaintiff by the documentation
dated 6.4.1998 is of no legal effect.
The Court noted that transfer of rights
in an immovable property is by a contract i.e the same is a bilateral act, and
such bilateral contract cannot be cancelled unilaterally i.e by unilateral
cancellation of documents by which rights in immovable property are transferred
by the transferor to the transferee.
On the question of ‘irrevocable agency’
the court extracted the legal position from previous cases:
“20. In the matter of Hardik Kaur v.
Kailash (S.B.) 193 (2012) DLT 168 it was stated “the words” and interest in
property which forms the subject matter of the agency” in Section 202 of the
Contract Act, 1872 are of wider amplitude than the words “an interest in or
charge on such property” in Section 54 of the Transfer of Property Act, 1882.
Where the seller has received the sale consideration in pursuance of the
agreement to sell and has delivered the possession to the purchaser, the
purchaser would have interest in the property within the meaning of Section 202
of the Contract Act”
Thus the GPA dated 11.02.1998 is
irrevocable in view of Section 202 of the Contract Act, 1872. The plaintiff,
therefore, had no right to terminate the said GPA. The revocation of the GPA by
plaintiff is, therefore, of no consequence.
Moreover the plaintiff has shown only
the photocopies of the cancellation deeds Ex.PW 1/7 and Ex PW 1/8 dated
06.04.1998. The cancellation deeds are thus not proved on record. The documents
can be looked at, at the instance of the opposite party. The cancellation deed
neither mentions that consideration was not received nor has any other cause of
cancellation been specified. The non-disclosure of any reason in the
cancellation deed clearly suggests that there was in fact no dispute about
consideration, as being claimed by the plaintiff in his suit. In addition, the
legal notice sent makes no mention of the fact that the consideration amount
had not been received. Moreover, the legal notice also does not state as to
whether upon cancellation the consideration amount paid was being returned to
the defendant by the plaintiff.
Even if it is assumed for the sake of argument
that the cancellation deeds are genuine, the agreement tot sell of which the
plaintiff has placed on record a certified copy Ex.PW 1/2 was never cancelled
by the plaintiff. As per the agreement to sell, it is on record that the
possession was handed over by the plaintiff to defendant no. 1 while executing
the documents. It is also clearly stated in the agreement to sell which is a
document admitted by both parties that the consideration of Rs. 1,75,000/- has
been paid by the defendants to the plaintiff. The plaintiff has also executed a
receipt of the same amount. Hence the plaintiff has no right to cancel or
revoke documents dated 11.02.1998 which were executed by the plaintiff in
favour of defendant no. 1 for sale of 70 sq. yards of the suit property.
Placing reliance on judgments of the
Hon’ble High Court of Delhi inRamesh Chandv. Suresh Chand, 188 (2012) DLT 538
and Hardip Kaur v. Kailash Supra, it is held that Defendant no. 1 in the matter
at hand thus may not be a classical owner as would be in case of a registered
sale deed, however, they would have certain rights and entitlement over the
property. Furthermore this coupled with the fact that the defendants also have
actual physical possession, builds a strong case in their favour. Thus, the
interest created by the agreement entered into between the parties still lies
with the defendant.
On basis of the discussion above, it is
held that plaintiff is not entitled to the relief of possession or injunction
in regard 70 sq. yards of the suit property as claimed for. Furthermore the
plaintiff has asked for the relief of permanent injunction in relation to the
whole 200 sq. yards. When the relief of 70 sq. yards out of 200 sq. yards
cannot be granted, there is no question of granting a relief in relation to
whole 200 sq. yards.”
The Court upheld the decision of courts
below placing reliance upon Section 202 of the Indian Contract Act as also the
judgment delivered by this Court in the case of Shri Ramesh ChandSuresh Chand,
188 (2012) DLT 538 which holds that
documents which are in accordance with the amended Section 53A of the Transfer
of Property Act, 1882 and executed prior to 24.9.2001 when by Act 48 of 2001
Section 53A of the Transfer of Property Act was amended to require compulsory
stamping and registration of an agreement to sell, then such documents prior to
24.9.2001 are valid documents because the amendment to Section 53A of the
Transfer of Property Act is prospective in nature.
The Court also held that – this aspect is clearly stated by the Supreme
Court in the judgment in the case of Suraj Lamps and Industries Pvt. Ltd.State
of Haryana, 183 (2011) DLT 1 (SC) wherein the Supreme Court has held that those
agreements to sell, power of attorneys and Wills, which are in accordance with
Section 53A of the Transfer of Property Act, Section 202 of the Indian Contract
Act and the relevant provisions of the Indian Succession Act, the same will
continue to be valid i.e documents executed prior to 24.9.2001 being in
accordance with the then existing Section 53A of the Transfer of Property Act
which did not require stamping and registration of the agreement to sell would
be valid documents.
The Court concluded by holding : “The
courts below, in my opinion, have also rightly held that the fact that
possession was given to the respondent no. 1/defendant no. 1 by the
appellant/plaintiff in terms of the documents dated 11.2.1998 shows that the
appellant/plaintiff had received the entire sale consideration. I also adopt
the other reasoning as given by the courts below showing that complete sale
consideration has been duly received by the appellant/plaintiff”
THE DEFENDANTS WILL NOT ACQUIRE ADVERSE POSSESSION BY
SIMPLY REMAINING IN PERMISSIVE POSSESSION FOR HOWSOEVER LONG IT MAY BE
The Supreme Court exposited that one who holds possession on behalf of another i.e. permissive possession, does not by mere denial of the other’s title, make his possession adverse so as to give himself the benefit of the statute of limitation.
The above said observation was made in the matter of Ram Nagina Rai vs. Deo Kumar Rai [Civil Appeal No. 7266/2013], ordered on 23.08.2018.
Challenge
Plaintiffs in a title suit claimed to be owners of a property, which was being occupied by the defendants, as permitted by their ancestors. Their case was that defendants got khatian changed without notice to them, showing the defendants to be in possession of the same.
Khatian, which records that Defendants are in possession, was published in the year 1970, but the plaintiff filed the title suit only 19 years after its final publication and hence, the suit is barred by limitation and contending that they had perfected the title by way of adverse possession.
Though the Munsiff’s court rejected the plea of adverse possession, the appellate courts found favour with it and dismissed the suit filed by the plaintiffs. Hence, the case reached the apex court.
Held
The Apex Court in the instant matter reiterated the law on Adverse possession as follows:
The burden is on the defendants to prove affirmatively that the bar of limitation prescribed under Article 65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property.
The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. Thus, it is incumbent on the plaintiffs to file a suit for possession within 12 years from when the possession of the defendants becomes adverse to the plaintiffs.
Adverse possession means a hostile assertion, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed.
It is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of the adverse user must be communicated at least impliedly to the actual owner of the property. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner.
In conclusion, the defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
It was held in the instant case that the acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. There is a lot of difference between simple possession and adverse possession. Every possession is not adverse possession. The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.
By applying the test of nec vi, nec clam, nec precario i.e., ‘without force, without secrecy, without permission’ as an established test for finding adverse possession, The Court found that the defendants have not proved their possession to be adverse to that of the real owner inasmuch as they entered into possession as licensees to begin with and there is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner.
ADVERSE POSSESSION
In the State of Haryana versus Mukesh Kumar & others case in 2010, the Supreme Court decided in favour of the actual owner of the property and said that the law of adverse possession was archaic and should be seriously looked into. It added that in adverse possession, a trespasser who is actually guilty was able to gain legal title over the property. The court found the legal system rewarding an illegal act baffling.
The concept of adverse possession is not applicable to the ancestral property and no person can claim it even if other co-sharers do not claim it for a long period of time
Family Settlement Judgments
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Registration
Act, 1908 — Ss. 17 and 49 — Partition/Family Arrangement/Settlement: Even
unregistered document of family settlement would operate as estoppel against
parties to such settlement. It can be used as corroborative evidence as
explaining arrangement made thereunder and conduct of parties. If partition
of joint family properties took place by oral family settlement, unregistered
document containing signature of all members, containing list of properties
partitioned, can be used as corroborative evidence. [Thulasidhara v.
Narayanappa, (2019) 6 SCC
409] |
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The Supreme Court has held that a family
settlement document which merely sets out the existing arrangement and past
transaction will not be compulsorily registrable under Section 17(1)(b) of
the Registration Act, 1908, if it doesn't by itself creates, declares, limits
or extinguishes rights in the immovable properties. Therefore, such a document will not be hit by
the bar under Section 49 of the Registration Act Case Title: Korukonda Chalapathi Rao &
Ors v Korukonda Annapurna Sampath Kumar Coram: Justice KM Joseph and Justice
SR Bhat Citation : LL 2021 SC 53 DOD 01 October 2021 |
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Ravinder Kaur Grewal and Others v. Manjit Kaur and Others, (2019) 8 SCC 729. The apex court in the above case held that once the 12-year period of adverse possession is over, even owner's right to eject the possessor is extinct and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In Ravinder Kaur Grewal and Others v. Manjit Kaur and Others (supra), the apex court stated as follows: “62. … In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession.” As the Supreme Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra) overruled the view taken in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra), the very basis of the High Court for holding that compromise decree dated 04th October 1985 requires registration is ruled out. The court further observed that there is no allegation that the decree dated 04th October 1985 is a collusive decree. In view of the facts in the present case, the compromise decree dated 4 th October 1985 was with regard to property, which was the subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi). Accordingly, the Supreme Court held that the compromise decree did not require registration and the Learned Civil Judge as well as the High Court erred in holding otherwise. The order of the Civil Judge as well as
the judgment of the High Court were set aside. While allowing the appeal, the
compromise decree was directed to be exhibited by the trial court |
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Partition_and_Joint_Family_and_Coparcencer.pdf |
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compromise-decree-requires-no-registration-if-it-does-not-take-in-property-that-is-not-subject-matter-of-suit |
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