Does ‘Abandonment’ Give rise to a Vested Right, in Indian Law?

Yes; Abandonment by One may Confer Legal Rights on Another.

Jojy George Koduvath.


Property, as a legal concept, is the sum of a bundle of rights.

  • In the case of tangible property, it includes the following rights:
    • the right of possession,
    • the right to enjoy,
    • the right to destroy,
    • the right to retain,
    • the right to alienate
  • and so on (Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684).

Therefrom, it is clear that the owner of a ‘property’ has the liberty to ‘abandon’ it.

We need not probe deep to find out the genesis of this right

Under law, the ‘right to abandon’ is wielded in properties which are capable of transfer from one to another. Rights in contractual matters can also be abandoned. This privilege is one exercised unilaterally; and it is ancillary and incidental in the right of ownership. (This right being inherent and sui generis we need not probe deep to find out the genesis of this right.)

One cannot abandon the obligation arsing from a contract

Though a party to a contract may also relinquish his rights, he cannot abandon the obligation arsing from the same. Therefore:

  • Abandonment is
    • the voluntary act done by the owner of a property
    • whereby he permanently renunciates the right, title and interest
    • in a specific transferable property,
    • not amounting to a transfer (to a transferee); or
  • the willful relinquishment of the beneficial rights in a contract, by a party to the same.

Abandonment is the voluntary giving up of one’s rights

In Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98 (SR Das, MC Mahajan, Vivian Bose, Ghulam Hasan), ‘Abandonment‘ was explained by Vivian Bose J., who delivered a separate Judgment, as under:

  • ‘Abandonment is the voluntary giving up of one’s rights and privileges or interest in property with the intention of never claiming them again’. 

‘The Free Dictionary: Dictionary, Encyclopedia and Thesaurus’ describes ‘abandonment’ as under:

  • “Voluntary relinquishment of all right, title, claim, and possession, with the intention of not reclaiming it; the giving up of a thing absolutely, without reference to any particular person or purpose.”

In Kanhiya Shanker v. Mohabata Sedhu, AIR 1960 P&H 494, it is held as under:

  • “Abandonment means the Act of intentionally relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons.”

Once an Abonnement Always an Abonnement

Abandonment of a right in a transferable property or a contract will result in vesting a corresponding entitlement in another. An abandonment, as the word connotes, made once, stands permeant and irrevocable; or in other words, once an abonnement always an abonnement.

If Abandonment Proved, Subsequent Claims Futile

Once an abonnement being always an abonnement, if an abandonment is proved, subsequent claims by the same person or his successors will not be accepted in law.

Voluntary Abandonment of Known and Existing Right alone is Recognised in Law

If only the abandonment of a transferable property is the result of an intentional or voluntary act, then only it will be recognised in law as an act capable of losing right in one and creating in another. It must be a known and existing legal right. (See: Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan, AIR 1959 SC 149.)

In Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association, 1988 Supp. SCC 55, it was held as under:

  • “In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined the facts of each case.” (Quoted in: Dr. Karan Singh v. State of Jammu and Kashmir, 2004 (5) SCC 698, AIR 2004 SC 2480)

In Manju Devi v. State of Bihar, 1999-2 BBCJ 91; 1999-2 BLJR 1226; 1999-2 PLJR 641, it is held as under:

  • “Abandonment would require something for more definite and positive, showing intentional and voluntary relinquishment of a known right absolutely and unconditionally.”

In Kanhiya Shanker v. Mohabata Sedhu, AIR 1960 P&H 494, it is held as under:

  • “7. The courts do not presume in favour in favour of abandonment and the onus rests on the party asserting abandonment. It is, therefore, incumbent upon the party pleading abandonment to establish his plea. In this case, defendants No. 1, the appellants before us, who set up abandonment, have to prove the same by unequivocal and decisive evidence.
  • Abandonment means the Act of intentionally relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons. In this case it has to be a voluntary relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons. In this case it has to be a voluntary relinquishment of possession of the property by its owners with the intention of terminating their ownership but without vesting it in any other person.
  • A person abandoning his property gives up all hope, expectation or intention of recovering his property. The property, after it is abandoned, results in complete divestiture of the title of its owner and having ceased to be his property it becomes the subject of appropriation by the first taker or by its occupant who reduces it to his possession. Abandonment is not a surrender of property because the latter term connotes its relinquishment to another. It is an Act whereby a person gives up his ownership without creating proprietary rights in another person.
  • 8. There are two primary elements of abandonment, namely the intention to abandon and the external Act by which effect is given to the intention and both these elements must concur. The intention must be clear and unmistakable indicating that it is the ownership which is being relinquished and not the possession or any other sub-ordinate right consistent with the retention of ownership. A person abandoning permanently divests himself of his title. The Act of abandonments from its very nature has to be voluntary, absolute and unconditional, excluding element of coercion, and pressure of any kind. In order to see that the plea of abandonment is proved in a particular case, the Courts have to ascertain the existence of affirmative and unmistakable evidence leading to the exclusive inference of intentional relinquishment of property and repudiation of ones ownership.
  • Mere non-user over a long period unaccompanied by any other evidence showing clear intention, will not be held sufficient to constitute and abandonment. By itself, therefore, an absence from land for a long time will not amount to an abandonment though this circumstance may have a considerable probative force. In such a case the party asserting abandonment has to show that the owner left the premises without any intention to repossess or reclaim them for himself. Abandonment of immovable property necessarily implies non-user, but non-user per se does not create abandonment, on matter how long it continues. A non-user must, therefore, be accompanies with an intention on the part of the owner to give up the property and for good. The Courts may, however, turn to surrounding circumstances in order to find out whether the renunciation was voluntary and intentional and the external Act evidencing abandonment was motivated by the intention to abandon.
  • Thus a mere failure to occupy land for an indefinite time does not necessarily constitute an abandonment of title or possession, unless there is evidence sufficient to sustain a finding that the property was left without any intention to repossess it and the person abandoning was indifferent as to what may become of it in the future and who may take possession of it or claim title to it. when the expression “abandonment” is used in relation to property, it signifies the complete relinquishment of title, possession or claim, virtually indicating that the property is being thrown away. Abandonment is not equivalent to inaction. A person abandons property when he forsakes it entirely, renounces it utterly and give it up permanent, with an intent never again to claim any right or interest therein.” (Quoted in: Manju Devi v. State of Bihar, 1999-2 BBCJ 91; 1999-2 BLJR 1226; 1999-2 PLJR 641)

In Daulat Singh v. Dilbagh Singh, 2004-136 Punj LR 871, it is observed as under:

  • Mere inactivity or a passive attitude of a person cannot be interpreted as an act of abandonment. In the said case also one Dalip Singh was adopted son of Sajjan Singh. He filed suit for possession. It was held that the plaintiff and the defendant became joint co-sharers in the ancestral land. The court has relied upon a Division Bench judgment reported as Kanhiya Shanker and Ors. v. Mohabata Sedhu and Ors., (1960)62 P.L.R. 494 to hold that in order to establish abandonment there must be an intentional and voluntary relinquishment of right for good without and further the onus to prove abandonment rests heavily on the person who alleges the same.”

Right of Abandonment is an Unrestricted and Inherent Right

Right of abandonment of a transferable property being an unrestricted and inherent right vested with the (transferable) property owners, it is not expressly dealt with in the Transfer of Property Act. It is similar to doctrines of waiver, acquiescence, laches etc. in certain respects; and also akin to estoppel.

Estoppel in Law

Section 115 of The Indian Evidence Act, 1872, declares ‘estoppel’ as under:

  • “115. Estoppel — When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

Abandonment is much more than mere Estoppel, Waiver, Acquiescence or Laches

‘Abandonment’ of a transferable property stands distinguished from waiver, acquiescence, laches and estoppel. In Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98, it was held by SR Das, J., after referring various English decisions, as under:

  • “Further, whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, on the authorities, that mere waiver, acquiescence or laches which does not amount to an abandonment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest.” (Quoted in Prabhakar Gones Prabhu Navelkar v. S.S. Prabhu Navelkar (2019-11 SCALE 381).

It was added in this decision as under:

  • “Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares.” 

Abandonment amounts to Estoppel (Certainly) Stops setting up a Claim

In Prabhakar Gones Prabhu Navelkar v. S.S. Prabhu Navelkar, 2019-11 SCALE 381 (K.M. Joseph, J.), analysing Dr. Karan Singh v. State of J & K, 2004-5 SCC 698, it is observed that ‘in regard to abandonment the Court referred to the judgment in Mulchand’s case and apparently approved the same‘. Thereafter it is held (in Prabhakar Gones Prabhu Navelkar) as under:

  • “79. Therefore, we would hold that a when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view in Mulchand (Mulchand v. Jawahar Mills, AIR 1953 SC 98) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppel is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law.”

“A right not exercised for a long time is non-existent

In Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, relating to disciplinary proceedings against an employee of the Bank, it is observed, as under:

  • “A right not exercised for a long time is non-existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay.”
    • Note:
    • 1. It is doubtful whether mere delay, laches and acquiescence apply to ‘adverse possession’ matter – in view of the specific provisions in the Limitation Act with regard to adverse possession.
    • 2. See doctrines of abandonment (or deliberate relinquishment) and acquiescence amounting to estoppel may have more force on the matter of adverse possession, they being arise from the wilful conduct of the person concerned.

Doctrine of Estoppel, delay, laches, acquiescence – applied to non-suit litigants

It is held, in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, further as under:

  • 29. Before proceeding further, it is important to clarify distinction between ‘acquiescence’ and ‘delay and laches’. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain (See Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das, AIR 1925 Cal 1107).  In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance (See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax, (1992) 194 ITR 584),  which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention (See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34).  Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance (See “Introduction”, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14th Edition, 2016). However, acquiescence will not apply if lapse of time is of no importance or consequence. 
  • 30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person (See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584). Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.

Abandonment and Section 9, TP Act – Deed Not Required

Section 9 Transfer of Property Act states that a transfer of property may be made by oral transfer and without writing in every case in which writing is not expressly required by law. TP Act does not require execution of a document when a property is abandoned. (See: Narsingdas Takhatmal v. Radhakisan Rambakas, 1952-54 BomLR 492; Peddu Reddiar v. Kothanda Reddi, AIR 1966 Mad 419).

In Ramdas Chimna v. Pralhad Deorao, AIR 1965 Bom 74, it is held as follows:

  • “The relinquishment by Bainabai of her interest in the joint family property was merely abandonment of here interest in the joint family property in favour of her two sons. Such a relinquishment or abandonment of interest in the joint family property, even though it consists of immoveable properties and is of the value of Rs. 100/- and upwards, can be effected without a written instrument, though if one is executed, it would undoubtedly require registration under Section 17 of the Registration Act, Gauri Bai v. Gaya Bai, AIR 1927 Nag. 44.”

In The Weavers Mills Ltd. v.  Balkis Ammal, AIR 1969 Mad 462, it is observed, referring Sec. 9 as under:

  • “That section says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. The Transfer of Property Act is not exhaustive of the kind of transfers. We are inclined to agree with the proposition of Ramaswami J., in Sarandaya Pillai v. Sankarlinga Pillai, 1959-2 Mad LJ 502, at p. 503 namely, that
    • “the test, therefore, in this country to determine whether a transaction (be it a transfer or not) can be made without writing is to see if it is expressly required by law to be in writing. If the transaction is a ‘transfer of property’ and there is no express provision of law requiring it to be in writing. Section 9 will enable it to be made without writing. If on the other hand, the transaction is not a ‘transfer of property’ and there is no express provision of law requiring it to be in writing, the general principle referred to above will enable it to be validly made without writing.”
  • The learned Judge, if we may say so with respect, rightly pointed out that Section 9 underlines the general principle that everything is to be taken permissible unless there is a prohibition against it and has been inserted in the statute ex abundanti cautela.”

No Obligation can be Abandoned

In Shripati Lakhu Mane v. Maharashtra Water Supply And Sewerage Board, 2022 SCC OnLine SC 383, it is held as under:

  • “Moreover, abandonment is normally understood, in the context of a right and not in the context of a liability or obligation. A party to a contract may abandon his rights under the contract leading to a plea of waiver by the other party, but there is no question of abandoning an obligation. In this case, the appellant refused to perform his obligations under the work-order, for reasons stated by him. This refusal to perform the obligations, can perhaps be termed as breach of contract and not abandonment.”

Escheat and Bona Vecantia – Incidents of Sovereignty

Who is the ultimate owner of a property?

The answer is: ‘The State’.

Because, the reply to the following question, that determines the ‘ultimate ownership’ of a property, is – ‘the State’. The question is:

  • Who is the owner of the property:
    • that is abandoned by all, that has no rightful owner or over which all claims raised are invalid; and
    • over which none can raise a valid claim?

Our Apex Court, in Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843,  appraised the principles of escheat in the Constitutional context (particularly, Article 296 of the Constitution) and held as under:

  • “In this country escheat is not based on artificial Rules of Common Law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.”

Bona vacantia:  It is the legal principle that asserts that the Crown takes (as bona vacantia) goods in which no one else can claim property as a rightful owner.

Article 296 of the Constitution Asserts These Rights

Article 296 of the Constitution of India reads as under:

  • Property accruing by escheat or lapse or as bona vacantia – Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.”

Read Blog: Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.

Who gets Rights in the Abandoned Property?

It depends upon the nature of the property; such as, movable or immovable property. Prior ownership, possession existed at the time of abandonment, duration of possession after abandonment, etc. are also important. In most cases, especially in immovable properties, it is reverted back to the prior owners or other co-owners.

Generally speaking, subject to the custom and the special or common law on this subject, the rights on abandoned properties are acquired ‘by the Occupant, who first took possession of them with the intention of keeping them as his own‘ as stated by Sir Henry Sumner Maine in “Ancient Law”, Chapter-VIII, ‘The Early History of Property’. It reads as under:

  • “Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called res nullius — things which have not or have never had an owner–can only be ascertained by enumerating them. Among things which never had an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which have not an owner are movables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the Occupant, who first took possession of them with the intention of keeping them as his own–an intention which, in certain cases, had to be manifested by specific acts.” (Quoted in Bhikhari v. DDC, 2018 (141) RD 130 (Sudhir Agarwal, J.)

Abandonment Recognised in Law

Our Apex Court, in Jai Singh v. Gurmej Singh, 2009-15 SCC 747, laid down that a co-owner can abandon his rights in favour of other joint-owners. It is held as under:

  • “The principles relating to the inter-se rights and liabilities of co-sharers are as follows: ….. Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. …. ”

In Qadir Bux v. Ram Chandra, AIR 1970 All. 289, it was observed as under:

  • “30. The main point for consideration is whether in such circumstances it can be said that the plaintiff had been dispossessed or had discontinued his possession within the meaning of Article 142 of the First Schedule to the Indian Limitation Act. The term “dispossession” applies when a person comes in and drives out others from the possession. It imports ouster: a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term “discontinuance” implies a voluntary act and abandonment of possession followed by the actual possession of another. It implies that the person discontinuing has given up the land and left it to be possessed by anyone choosing to come in. There must be an intention to abandon title before there can be said to be a discontinuance in possession, but this cannot be assumed. It must be either admitted or proved. So strong in fact is the position of the rightful owner that even when he has been dispossessed by a trespasser and that trespasser abandons possession either voluntarily or by vis major for howsoever short a time before he has actually perfected his tittle by twelve years’ adverse possession the possession of the true owner is deemed to have revived and he gets a fresh starting point of limitation – vide Gurbinder Singh v. Lal Singh, AIR 1965 SC 1553. Wrongful possession cannot be assumed against the true owner when according to the facts disclosed by him he himself had voluntarily handed over possession and was not deprived of it by the other side.” (Quoted in Bhikhari v. D.D.C., 2018 (141) RD 130)

Abandonment in claims of Adverse Possession

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is the important Supreme Court verdict that discussed various views on doctrine of ‘adverse possession’ and gave a decisive finality on this subject. It is observed in this decision as under:

  • “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”

Thereafter it was emphasised as under:

  • “Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
  • 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
  • 2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.”

Read Blog: Adverse Possession: An Evolving Concept

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land LawsTransfer of Property Act

Evidence Act – General

Contract Act


Stamp Act


Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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