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Adverse possession within siblings

Para Uryg
Adverse possession within siblings

Adverse possession means a possession adverse to the real owner. When a person occupies the property and enjoys the same denying the right of the actual owner, it is called adverse possession, and it leads to perfection of the title of the possessor as an owner if the real owner misses out timely action. 

Essential elements of adverse possession: 

  • Possession is hostile to the real owner. The claimant denies the right of the actual owner. 
  • Possession is for a long period, i.e. statutory period.  
  • Possession must be actual, uninterrupted, continuous and exclusive.  
  • Possession must be public. A real owner must know that the property is occupied by someone rejecting his title.

Case of brother and sister:

In law, one co-owner/co-heir represents all other co-owners/co-heirs. Possession by one co-heir is presumed to be possession by all and is considered as permissive possession.

In the case of co-owners / co-heirs, it is not sufficient to show that the possession by one co-heir is continuous, public and long. It has to be further shown that the co-heir who is the claimant has ousted the other one.

A case of adverse possession between brother and a sister is a case of adverse possession between co-heirs.  

In such cases, the plea of adverse possession will succeed if there is:

  • an open assertion by one co-heir (sister) of her title hostile to her brother
  • exclusive possession and enjoyment of the property in a manner which can constitute the ouster of the brother
  • brother must know that he has been ousted.

What constitutes ouster?

It depends on the facts of each case. Broadly speaking, three things are required-

  1. An open declaration of hostility by one co-heir towards the other. The sister must not acknowledge the title/right of her brother.
  2. Continuous, uninterrupted and prolonged usage of the property
  3. Exercising her right of exclusive ownership to the knowledge of her brother

All the elements must co-exist. Once they co-exist and if the brother does not take timely action, the sister will perfect her title through adverse possession.

Rights of brother: 

Plea of adverse possession has to be established with convincing evidence. The onus is heavy on the claimant to prove the same. It is not easy for a co-owner (sister) to show adverse possession as brother is one co-owner/co-heir.

However, the brother can file a suit for partition of the property or seek joint possession, based on his title. Some important points are:

  • The actual owner has to show that he never abandoned the property. The documents establishing his connection with the property are crucial.
  • He can beat the claim of illegal possession by showing that:
  • Prescribed duration of adverse possession not completed
  • Possession is not exclusive
  • Possession is not hostile as the claimant never indicated so.

It is always better to have a written agreement/family settlement with the co-heirs regarding the property. 

Para Uryg
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