ADVERSE POSSESSION

Involving in a case of adverse possession inspires me to write this article.

Latin maxim 'Nullum tempus occurrit regi ( no time runs against the King) is the root of the doctrine of adverse possession.  Adverse possession means a possession of an immovable property without having title of such property. A person, not having legal title of ownership of an immovable property can claim for immovable property.

1) Historical Background:

It is interesting to know the fact from where the Doctrine of Adverse Possession is begun to apply. For this purpose, let our vision be taken to the historical events. For this, I rely upon the certain paragraphs of the judgements of Hon'ble Supreme Court in a case of State of Haryana vs. Mukeshkumar and others, in petition for Special Leave to Appeal (Civil) no. 28034 of 2011 wherein Hon'ble Supreme Court has enlightened the historical back ground of doctrine of adverse possession. I would like to quote the relevant paragraphs of it.

paragraph no. 30:  '' The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title"
seisin means possession, more particularly of a land.

paragraph no. 31: "  The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity."

paragraph no. 32: "During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land."

2) Example of Adverse possession:

'A', having title of an immovable property, is an owner of that property. Accepting the fact that 'A' is the owner of the property, 'B' has possessed that property of 'A' long, openly, peacefully, continuously and uninterruptedly for the period of at least more than 12 years  and this fact is well within the knowledge of 'A' but 'A' has not taken any action for getting the possession back from 'B'. 'B' is entitled to claim for this property on the basis of the doctrine of adverse possession.

3) Ingredients of Adverse Possession:

It is very essential to know what are the ingredients of adverse possession. How one can justify that it is the case of adverse possession or on what grounds the adverse possession are justified or which ingredients are proved for establishing the case of  adverse possession.  The following ingredients of adverse possession are required to be satisfied by a person who institutes a suit for adverse possession.
a) The possession of the suit property  with the plaintiff must be established.
b) Animus possidendi ( intention to possess) adverse to the knowledge of the real owner.
c) possession is adverse or hostile to that of the true owner.
d) wrongful dispossession of rightful owner
e) plaintiff has to establish by evidence that permissive possession over the property becomes adverse to the interest of the real owner.
f) plaintiff has to establish perfect title of a suit property by way of adverse possession.
g) nec vi, nec clam, nec precario means an adverse possession is proved only when possession is peaceful, open, continuous and hostile.

The essentials of adverse possession were succinctly summed-up by Hon'ble Supreme Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779  as  “In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of   (2004) 10 SCC 779 Civil Appeal No. 2238 of 2016 Page 19 of 25 Page 20 nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma(Dr.) v. Raj Kumari Sharma (1996) 8 SCC128)."

4) Mere possession of property is not amount to adverse possession:

In a case between Ram Nagina Rai & Anr. Vs. Deo Kumar Rai(Deceased) by Lrs. (civil appeal no. 7266 of 2013 ), Hon'ble Supreme Court in paragraph no. 15 of the judgement held, " 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. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time...."

5) Plaintiff has to admit the ownership of the true owner:

As per the judgement of Hon'ble Supreme Court in a case between Dagadabai (Dead) by L.Rs. vs. Abbas@ Gulab Rustum (Civil Appeal No. 83 of 2008) , it was held in paragraph no. 21, "it is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divert the true ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit that ownership of the true owner and the true owner has to be made a party to the suit to enable the Court to decide the plea of averse possession between the two rival claimants."

 6) When Owner's right to property is extinguished:

If the owner of the property is not vigilant for his legal rights. Law does not protect to those who sleep  over their rights for  many years. Law helps only to those who are vigilant for their rights. Section 27 of the Limitation Act is the negative safeguard for the protection of rights of an owner of the property. It indicates the red light to the owner of the property to control the rights of the person (except owner of the property) who is in possession of such property.
Section 27 of the Limitation Act,1963

Generally remedy is closed due to the bar of limitation and nor rights, however, section 27 of limitation Act extinguishes the right of property as this section is exception to the general rule.

Section 27 restrains the owner of the property to vacant the possession from the person who has been possessed such property peacefully, uninterruptedly and extensively for a period of more than 12 years. This section ends the title of the property of a person who does not care of his ownership rights qua the property. 

Para 57 of the latest judgement of Hon'ble Supreme Court in a case of Eureka Builders vs. Gulabchand reported in (2018)4 SCC (Civ)9 says that "Section 27 of the Limitation |Act deals with extinguishment of right to property. It says that the determination of the period prescribed in the Act for any person to institute a suit for possession of any property, his right to such property shall be extinguished. Articles 64 & 65 of the Schedule provide 12 years' period for filing a suit to claim possession of any immovable property. The period of 12 years prescribed in these two articles is required to be counted from ''the date of dispossession" (Article 64) and "When the possession of the defendant becomes adverse to the plaintiff" (Article 65)."

7) Time from which period begins to run  for adverse possession:

As per Article 65 of the Limitation Act, the time commences for adverse possession is from the day when the possession of the defendant becomes adverse to the plaintiff. The period of limitation is of Twelve years. In the case of Hanamgowda vs. Irgowda  reported in [AIR 1925 Bom. 9], it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. (Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak (2004) 3 SCC 376). paragarph no. 77).

8) No adverse possession among the members of one family:

It is well settled principle that there can not be any adverse possession among the members of one family. A case between Nanjegowda alias Gowda(Dead) by Legal Representatives and another vs. Ramegowda reported in (2018) 1 SCC 574/ (2018) 1 SCC (Civ)417, wherein, the defendants(appellants) and the plaintiff (respondent) are the members of one family. They are first cousins from their father's side. The dispute is in respect of ancestral properties including land owned by the family. The Suit was filed by the plaintiff inter alia seeking relief for declaring the plaintiff as an owner of the suit land and for permanent injunction restraining the defendants(appellants) from interfering in his possession over the suit land on the basis of oral partition. The defendants(appellants) took a plea of adverse possession over the suit land and claimed that they became owner of the suit land by way of adverse possession due to their long, peaceful and continuous possession. The defendants admitted that the family relationship with the plaintiff along with the plea of the plaintiff regarding oral partition. It was held in paragraph no. 19 the judgement that ........"the plea of adverse possession was wholly misconceived and untenable. It is settled law that there can be no adverse possession among the members of one family for want of any animus among therm over the land belonging to their family." 




Chirag Bhatt
Advocate
9824025041

CY- PRES- A JUDICIAL SAFEGUARD OF THE PUBLIC TRUST

This article is based on the provisions of Section 55 of The Gujarat Public Trusts Act, 1950 ( herein after referred as the Act). I make an attempt to elaborate and interpret the said section in this article as under.

'CY-PRES' is  French legal term which means 'nearer or closer' or 'near enough is good enough'. The 'Doctrine of Cy-pres' is the root of the provisions of section 55 of the Act. It is essential to know that meaning of this doctrine as it is mother of invocation of section 55. The doctrine is used when something feeble  is required to be altered, instead of getting it dead.  This term has been used  in the context of Charitable Trust since ages. The English Courts used to apply this term for the Charitable Trust when the purpose of the Trust was about to be no longer survive or the intention of the settler or author of the said Trust was frustrated. 

The Indian laws are highly influenced by the English laws due to the political scenario being prevailed before independence of India. The enactment for Public Trust is no longer an exception from them. Thus, Cy-Pres is one of the sections of the Act. Now let me explain  the provisions of section 55 of the Act  about the importance of this section in detail.

 The two requisites are considered for the applicability of Section 55 of the Act. (1) an application is made in this regard to the Charity Commissioner  or (2) the Charity Commissioner is of the opinion that 

(a) the original object for the creation of the public trust is failed, 

(b) the income or any surplus balance of the public trust has not been used or is not likely to be utilized,

(c)(1)  it is not expedient, practicable, desirable, necessary or proper to carry out the original  intention, whether partly or fully, of the author of the public trust in the interest of public or(2)  the object of the public trust was created and that the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object, ( public trust for religious purpose is not considered as public trust for the application of the provisions of section 55 of the Act.)

The exclusion of public trust for religious purpose is amended and inserted in this provision after the decision of Hon'ble Supreme Court in the case of Ratilal Panachand Gandhi vs. State of Bombay reported in AIR 1954 SC 388 wherein Hon'ble Supreme Court held that, "A more serious objection has been taken by the learned counsel for the appellants to the provisions of sections 55 and 56 of the impugned Act and it appears to us that the objections are to a great extent well founded. These sections purport to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character. The doctrine of cy pres as developed by the Equity Courts in England, has been adopted by out Indian courts since a long -time past. The provisions of sections 55 and 56, however, have extended the doctrine much beyond its recognised limits and have further ,introduced certain principles which run counter to well established rules of law regarding the administration of charitable trusts. When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settlor, the court would not, when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it cy pres, that is to say, in some way as nearly as possible to that which the author of the trust intended. In such cases, it cannot be disputed that the court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent. It is we 11 established, however, that where the donors intention can be given effect to, the court has no authority to sanction any deviation from the intentions expressed by the settlor on the grounds of expediency and the court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settlor had directed(1). But this is exactly what has been done by the provision of section 55(c) read with section 56 of the Act. These provisions allow a diversion of property belonging to a public trust or the income thereof to objects other than those intended by the donors if the Charity Commissioner is of opinion, and the court confirms its opinion and decides, that carrying out wholly or partially the original intentions of the author of the trust or the object for which the trust was created is not wholly or partially expedient, practicable, desirable or necessary; and that the property or income of the public trust or any portion thereof should be applied to any other charitable or religious object. Whether a provision like this is reasonable or not is not pertinent to our enquiry and we may assume that the legislature, which is competent to legislate on the subject of charitable and religious trust, is at liberty to make any provision which may not be in consonance with the existing law; but the question before us is, whether such provision invades any fundamental right guaranteed by our Constitution, and we have no hesitation in holding that it does so in the case of religious trusts. A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. It is perfectly true, as has been stated (1) Vide Halsbury, 2nd Edn., VOl. IV, P. 228, by the learned counsel for the appellants, that it is an established maxim of the Jain religion that Divadraya or religious property cannot be diverted to purposes other than those which are considered sacred in the Jain scriptures. But apart from the tenets of the Jain religion, we consider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority- to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold, therefore, that clause (3) of section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1), must be, held to be void."

Hon'ble Supreme Court considered the religious purpose of the public trust qua cy-pres is ultra vires in view of the provisions of Article 26 of the Constitution of India and therefore, the words a public trust ''other than a trust for a religious purpose'' is amended and inserted in the provisions of 55(c) of the Act.

(d) in any of the cases mentioned in sections 10 to 13 or in regard to the appropriation of the dharmada sums held in trust under section 54 the directions of the court are necessary, The Charity Commissioner shall require  the trustees for application under Section 55 for the directions of the competent Court. As provided in Rule 31 of The Bombay Public Trusts (Gujarat) Rules, 1961, the trustees have to apply to the Court having jurisdiction for directions within three months from the date of the receipt of the Court Commissioner, provided that the Charity Commissioner may allow a longer time or grant extension of time for the purpose as per his discretion. 

It is noted that the provisions of sections 10 to 13 of the Act are pertaining to the grounds for not a public trust to be void.  Section 10 says that a public trust is not void on the ground of uncertainty of persons or for whose benefit, it is created. Section 11 speaks that a public trust is not void on the ground of non-charitable or non-religious purpose. Section 12 informs that a public trust is not void if no obligation is annexed with disposition or statement requiring a person in whose favour it is made to hold it for the benefit of a religious or charitable object. Section 13 provides that a public trust is not void on failure of specific object or society ceasing to exist. 

Section 55(2) says that if a trust does not make any application in respect of the purpose mentioned in section 55(1) of the Act, or there is no trustee or  the Charity Commissioner himself is s trustee, he has to apply to the Court.

Limitation of Cy-Pres doctrine : 

It is a question that under which circumstances, the Cy-pres is applied or is not applied.  The doctrine of Cy-pres is applicable to both testamentary and non-testamentary gifts, A Will  for public charitable purposes. 

There are two  limitations on the cypres doctrine which come into play here. Where the donor has determined with specificity a special object or mode for the course of his benefaction the Court cannot innovate and undo, but where a general charitable goal is projected and particular objects and modes are indicated the Court, (2) A.I.R. 1960 A.P. 605.

Conditions for applicability of Cy-pres under Section 55 of the Act:

Whether section 55 is applicable to the case or not is a question of fact, however, I reply upon the judgement of Hon'ble Supreme Court in the case of State Of Uttar, Pradesh vs Bansi Dhar And Others on 11 December, 1973 reported in 1974 AIR 1084, wherein Hon'ble Supreme Court held as under.

"The judges have set this restraint on their power to resurrect, or rather to vary and validate. The twin conditions to be satisfied are "(1) The settler must, in general, have shown a general charitable intention .... It will only apply where the original trust has failed ab initio. The absence of a general charitable intention will not be fatal to those trusts which have taken affect but have failed .... Once money has been effectively and absolutely dedicated to charity, whether in pursuance of a general or a particular charitable intent, the testator's next of-kin or residuary legatees are for ever excluded. This will mean that the material date for the purpose of deciding whether the cypres doctrine is applicable is the date when the trust came into effect (e.g. in a will, on 'the death of the testator ) ."

(2) The second condition for the application of the cypres doctrine used to be that it was or had become "impossible" to carry out the settler's intention or alternatively that a surplus remained after fulfilment of the purpose......

In short. there must be a larger intention to give the. property, in the first instance; secondly, there must be impossibility not in the strict physical sense but in the liberal. diluted sense, of impractibility. Even here it must be mentioned, however, that the cypres application of the gift funds assumes a completed gift. It is essential that a gift has been made, effectively before, its actual implementation by application of the funds, literally or as nearly as may be, arises."

In another case between Potti Swami And Brothers vs Rao Saheb D. Govindarajulu  ...reported in AIR 1960 AP 605, it was held that," The doctrine of "cypres" connotes that if the wishes of the testator cannot be carried out literally they will be carried out as nearly as possible to what he desired.That is, where a testator shows a general charitable intention, but the object of his charity turns out to be impracticable or when there is surplus money after the trust has been performed, the cy- pres doctrine will operate to enable the Court to apply the whole fund or the surplus as the case may be to another charity as merely as the testator's intention. But where the prescribed mode of doing the charitable act is the only one the testator has at all contemplated, the Court cannot apply the doctrine of cy-pres, but there will be a resulting trust for the testator's estate."

 Conclusion:

 To conclude, it can be said that the purpose of incorporation of the provisions of section 55 is to protect the original object of the public trust in case the same is frustrated. Further, this section becomes safeguard to the public trust in respect of  not utilizing the  the income or any surplus balance of it. It is to save the original intention of the author of the public trust. The Charity Commissioner requires the trustees to apply to the Court having jurisdiction for direction of the Court for the protection of the original object and intention of the author of the public trust. Sometimes it happens that it is due to any known or unknown reason, the object of the public trust is failed or is not carried out practically in the manner provided in the Act, at that time the provisions of Section 55 play the role as a safeguard with the help of Judicial Order in the form of directions to the trustees of the public trust. 

 The Court, having heard the parties and having made such inquires as it thinks fit, shall give directions protecting the original intention of the author of the public trust or the object of the public trust. If the Court is of the opinion that carrying out intention of the author or object of the trust is not wholly or partly practicable, expedient or desirable or necessary or proper in the interest of public, it is the discretionary power of the court to apply cy-pres to any other charitable or religious object by way of altering any scheme already settled or by way of varying the terms of any decree or order which is already passed in respect of the public trust or conditions contained in the instrument of the public trust. Such decision or order passed by the Court is decree and the same can be challenged by way of filing appeal before Hon'ble High Court. 

Chirag Bhatt

Advocate

9824025041