If you are stuck in such a situation, here is what to do.

Mr. Rehman, a resident of Amanpur, passed away many years ago, leaving behind his wife, who also passed away about a decade back. They had three children: two sons, Karim and Sameer, and a daughter, Fatima. After the parents’ demise, the elder son, Karim, continued to live in and manage the family home. Recently, Karim also passed away, leaving behind his wife, Zara.

Following Karim’s death, his siblings, Sameer and Fatima, filed a suit for the partition of the family property to claim their rightful shares. However, Zara’s lawyer has contested the suit, arguing that it is barred by the statute of limitations. The argument presented is that since Karim was in continuous possession of the property for over two decades, he became the sole owner by adverse possession, and his siblings have lost their right to claim any share. Zara is seeking a dismissal of the partition suit and an injunction in her favour. Currently, Sameer and Fatima are in possession of the property as Zara has moved to another state, Pradesh Pradesh.

Advice in such cases

Navigating family property disputes requires a clear understanding of legal principles, especially concerning co-owned properties.

• Understanding Co-ownership: In cases of inherited family property, all legal heirs are considered co-owners or joint owners. The possession of one co-owner is legally considered to be on behalf of all other co-owners. It is not, by default, hostile or adverse to the others.
• The Concept of Ouster: For one co-owner’s possession to be considered “adverse” and to start the clock for the limitation period, there must be a clear, unequivocal, and hostile act of “ouster.” This means the co-owner in possession must openly deny the title and rights of the other co-owners and this denial must be brought to their knowledge. Merely living in the property for a long time does not constitute an ouster.
• Limitation Period: The limitation period for filing a suit for partition is generally 12 years, but this period begins only from the date the possession becomes adverse to the other co-owners (i.e., from the date of a clear ouster). If there has been no ouster, the right to file for partition does not get extinguished simply by the passage of time.
• Current Possession Matters: The fact that the siblings currently have possession of the property is a significant factor in their favour, as it weakens the claim of exclusive and hostile possession by the other party.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Such civil disputes are governed by a combination of personal and procedural laws:

• Muslim Personal Law (Shariat) Application Act, 1937: This will govern the rules of inheritance and determine the specific share each legal heir is entitled to from the property.
• The Limitation Act, 1963: Article 65 of this Act is crucial. It deals with suits for possession of immovable property. The explanation to this article clarifies that for a co-owner, the possession is not considered adverse unless the plaintiff has been actually ousted or their title has been denied.
• The Code of Civil Procedure, 1908: This code lays down the entire procedure for filing and conducting a civil suit, including suits for partition and injunctions.
• The Specific Relief Act, 1963: This Act contains provisions related to granting injunctions, which either party might seek to protect their interests during the pendency of the suit.

If you are the complainant

If you are in the position of Sameer and Fatima and have filed the partition suit:

• Establish Co-ownership: Your primary task is to prove that the property was ancestral or jointly owned and that you are legal heirs. This can be done through property deeds, revenue records, and legal heir certificates.
• Negate the Claim of Ouster: You must demonstrate that your brother’s possession was permissive and on behalf of the entire family, not hostile. Any evidence of you visiting the property, contributing to its upkeep, or any communication acknowledging your shared rights would be beneficial. The burden of proving a clear ouster lies on the party claiming adverse possession (Zara).
• Gather Documents: Collect all documents related to the property, including the original title deed, mutation records, property tax receipts, and death certificates of your parents and the deceased brother.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If your right to a share in the family property is being denied by another co-owner:

• File for Partition Immediately: Do not delay in filing a suit for partition and separate possession of your share in the civil court.
• Seek an Injunction: If you fear that the co-owner in possession might sell, transfer, or create a third-party interest in the property, you must file an application for a temporary injunction to maintain the status quo until the case is decided.
• Assert Your Rights: Your legal case should clearly state that you are a co-owner and that the possession by the other family member was never adverse to your interest. Emphasize that there was no formal denial of your share until the recent dispute arose.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Property partition disputes are purely civil in nature. The police have a very limited role in such matters. They will not intervene to decide ownership or divide the property. Their involvement is typically restricted to situations where there is a potential for a breach of peace or violence between the parties. If there is a specific court order, such as an injunction, the police may be called upon to help enforce it. Otherwise, they will direct the parties to resolve their dispute through the civil courts.

FAQs people normally have

What evidence is required?

To successfully file and contest a partition suit, you will generally need the following evidence:

• Original Title Deeds of the property.
• Death Certificates of the ancestors (parents, grandparents) from whom the property was inherited.
• Legal Heir Certificate or a family tree issued by a competent authority.
• Revenue records like mutation entries and land records.
• Property tax receipts, utility bills, or any other documents showing possession or contribution towards the property.
• Any prior communication, family settlement attempts, or documents that acknowledge the rights of all co-owners.

How long will the investigation take?

Since this is a civil matter, there is no “investigation” in the criminal sense. The process is governed by court proceedings. A suit for partition can be a lengthy process. The duration depends on several factors, including the complexity of the case, the number of legal heirs involved, the court’s caseload, and whether the court’s decision is appealed in higher courts. An uncontested suit may be resolved relatively quickly, but a contested suit, like the one described, can take several years to reach a final conclusion.

Advocate Sudhir Rao, Supreme Court of India