All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC

All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC [Read Judgment] Sep 15th 2017, 04:32, by Sukriti The Supreme Court recently reiterated the principle that all assets in a Hindu Undivided Family would be presumed to be joint property belonging to all its members and that the burden to prove otherwise is on the family member asserting such claim. “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property,” the Bench comprising Justice R.K. Agrawal and Justice Abhay Manohar Sapre observed. The Court was hearing an Appeal challenging an order passed by the Karnataka High Court in a family dispute pertaining to ownership and partition of agricultural lands. The Apex Court upheld the High Court’s order which had declared the property as joint property of the family. The Court opined that the Appellants had failed to prove that the property was self acquired and observed, “In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done. Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.” It, therefore, upheld the judgments passed by the lower Courts and observed, “In our considered opinion, it was, therefore, obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule ‘B’ and ‘C’ was not part of ancestral properties but were their self-acquired properties. As held above, the plaintiffs failed to prove this material fact for want of any evidence. We have, therefore, no hesitation in upholding the concurrent findings of the two Courts, which in our opinion, are based on proper appreciation of oral evidence.” Read the Judgment Here

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC [Read Judgment]

Jun 21st 2018, 15:33, by Sukriti

Nitish Kashyap

The Bombay High Court has held that certificate of purchase cannot be conclusive proof of title vis-à-vis joint tenants of a land.

Justice Anuja Prabhudessai held that in case of a joint family property, the certificate of purchase issued in the name of karta or an elder of the family is actually for or on behalf of the joint family.

Case Background

The court was hearing an appeal against judgment of a Joint District Judge, Thane, dated January 24, 1990, wherein compensation for sale of a land in Thane was directed to be divided equally between descendants of co-tenants Vithu and Gajanan.

The government acquired the said piece of land measuring 1 acre 26 gunthas and 8 annas in 1973 for Rs. 57,000 approximately.

Changa Agaskar was the original tenant of the said land and after his death, his two sons, Vithu and Gajanan, used to cultivate the land together as a joint family property.

Vithu claimed that he had purchased the said land in the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural land Act. He further claimed that upon paying the purchase price, the certificate of purchase under Section 32 M of the Act was issued in his favour on July 20, 1966. The original claimant, therefore, claimed that being the exclusive owner, he was entitled to receive the entire compensation amount.

However, descendants of Gajanan claimed that the land was never partitioned and that even after the death of Changa and Gajanan, they continued to cultivate the land as a joint family property. The respondents denied that Vithu was the sole tenant/purchaser of the property. They have stated that Vithu had paid the purchase price of the acquired land out of the sale proceeds of the joint family land. The respondents, therefore, claimed that being the co-tenants of the property, they were entitled to 50 percent of the compensation.

Judgment

After examining the Bombay Tenancy and Agricultural Land Act, the court noted that it is clear that an undivided Hindu family can be a tenant within the meaning of Section 2(18) of the Act. Thereafter, the court looked at the land survey records, mutation entries and said:

“It is thus clear that the original claimant Vithu was not a tenant of the said land in his personal or individual capacity but had only inherited the tenancy rights upon the death of Changa. The original claimant Vithu had therefore failed to prove that he was the sole tenant of the said property. The claimant had also not adduced evidence to prove that the subject property was partitioned during the lifetime of Vithu and Gajanan or that they were cultivating the property or their respective shares separately. The reference court was therefore perfectly justified in holding that the acquired land was a joint family property.”

The land records revealed that the original claimant Vithu had subsequently got his name entered in the survey records, by bracketing the name of Gajanan. He had also purchased the property under Section 32G and a certificate of purchase was issued in his name. It is to be noted that no notice was given to the respondents before deleting/bracketing the name of Gajanan from the survey records, the court said.

Thus, the court rejected the appeal against judgment of the District Judge in Thane and said:

“Under such circumstances, the certificate of purchase issued in the name of Vithu, would be for and on behalf of the joint family. The said certificate would at the most be conclusive proof of purchase against the owner of the land. The tenancy rights of the joint tenants cannot be negated solely on the ground that the certificate of purchase was issued in favour of Karta of a joint family or any elderly person of a joint family. Hence, the certificate of purchase cannot be the conclusive proof of title, vis-a-vis the joint tenants.”

Read the Judgment Here

Can’t Acquire Adverse Possession By Simply Remaining In Permissive Possession For Howsoever Long It May Be: SC

Can’t Acquire Adverse Possession By Simply Remaining In Permissive Possession For Howsoever Long It May Be: SC Exposits Law On Adverse Possession [Read Order] Sep 1st 2018, 07:25, by Sukriti Ashok Kini ‘One who holds possession on behalf of another, 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.’ Some judgments of the Supreme Court, though does not state anything new, are to be read in an academic point of view. It helps newbie lawyers and law students to know law as it is. The judgment expositing the law on adverse possession by the bench comprising Justice NV Ramana and Justice Mohan M Shantanagoudar, in Ram Nagina Rai vs. Deo Kumar Rai, is one such. 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 disputed house. The defendants’ case was that they are the owners in possession of the suit house even prior to 1953. RS Khatian, which records they are in possession, was finally 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. The main contention was that they had perfected the title by adverse possession and, therefore, the plaintiffs are not entitled to recover the possession of the suit house from the defendants. 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. The case reached the apex court. Reading of this judgment will give us a clear picture on the law of adverse possession. The bench reiterated the position of law 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 based on title. 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. Article 65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. 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. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. Where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person, whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another’s title. Simply put, one who holds possession on behalf of another, 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 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. Until the defendants’ possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants’ possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property. The defendants are not only required to prove that they have been in possession of the suit property continuously and uninterruptedly, but also need to prove, by cogent and convincing evidence, that there is hostile animus and possession adverse to the knowledge of the real owner. 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. His hostile attitude should be open to the knowledge of the real owner. 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. ‘Animus possidendi’ is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, 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. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. A person pleading adverse possession has no equities in his favour. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. Taking note of the evidence on record, the bench observed that except for the change of khatian sometime in the year 1970 by the defendants and the payment of taxes for being in possession of property, no material is produced by the defendants to show whether the possession was really hostile to the actual owner. “There is absolutely nothing on record to show that there was a hostile assertion by the defendants. We do not find that the defendants had hostile animus at any point of time, from the facts and circumstances of this case. The defendants denied the title of the plaintiffs over the suit property only when the suit came to be filed, inasmuch as the defendants have taken such a contention for the first time in their written statements,”, the bench observed. The bench held that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property as it would be in clear violation of the basic rights of the actual owner of the property. On tax receipts and land records, the bench said even assuming that those documents relate to the suit house, they, at the most, depict the possession of the defendants and not their adverse possession. Restoring the Munsiff’s Court Decree, the bench set aside the judgments of appellate courts. Read the Order Here