Illegal, Mistaken or Fraudulent Registration of Deed, and Subsequent Mutation: No Adverse Possession

Jojy George Koduvath

Abstract

Mere possession, however long, will not give rise to perfection of title by adverse possession. To attract title by adverse possession, the acts of possession must be –

  • notorious, peaceful, open and hostile to the true owner.

It is expressed in the classical formulation of adverse possession in the Latin maxim: “nec vi, nec clam, nec precario”

  • That is –
    • not by force: nec vi,
    • not in secrecy: nec clam
    • not by permission: nec precario.

Illegal, mistaken or fraudulent registration of a deed, subsequent mutation and mere possession, however long, will not perfect title by adverse possession.

Part I

Illegal, Mistaken or Fraudulent Registration of Deed, and Subsequent Mutation: No Adverse Possession

If the deed is mistakenly or fraudulently registered with respect to the government or private property, and mutation entries were caused to be made, they will not ripen into adverse possession against the true owner for the following reasons:

  • 1. The ingredients of adverse possession will not be attracted – such as: OPEN, actual, and NOTORIOUS (visible, not secret) exclusive possession, hostile to the true owner (Government). A sham/void/fraudulent transaction will not satisfy these ingredients. (See: Madhavrao Waman Saundal Gekar v. Raghunath Venkatesh Desh Pande, AIR 1923 PC 205; Lakshmi Dutt v. Gopal Dutt, AIR 1974 (All) 316; Radhabai and Ram Chandra Konher v. Anantray Bhagvant Despande, ILR (1885) 9 Bom 198).
  • 2. Fraudulent execution of deeds between personshaving no title at all over Government land can use it as a title deed alone. That is, the claimant does not admit the title of the ‘true owner’.
  • 3. Mutation will not create or extinguish title.
  • 4. Courts must be cautious to apply adverse possession where public property is sought to be grabbed.
  • 5. Fraud vitiates everything. It cannot be used as the beginning of adverse possession. One cannot base adverse possession on a fraudulent foundation.
  • 6. Courts strictly scrutinise adverse possession in cases involving public property.

In Vishwa Vijai Bharti v. Fakhrul Hasan, AIR 1976 SC 1485, it is held as to the presumption of correctness on revenue-records as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

Registration of Title deed Insignificant; If inherent defect in title,

The inherent defects in the title of a party to a suit will not stand cured by the existence of a lawfully registered sale deed (P.  Kishore Kumar v. Vittal K.  Patkar, 2023  INSC 1009; 2023 14 SCR 796). The title of the executant does not automatically stand confirmed, even if the subsistence of a deed is proved. It is also a trite law that if the vendor had no pre-existing rights, a document could not convey any interest (NeelakantanDamodaranNamboothiri v. VelayudhanPillai NarayanaPillai, AIR 1958 SC 832; K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789 (SC).

If the vendors had ex facie no ownership rights (under any prior document) to convey the same to the transferee, the doctrine Nemo Dat Qod Non Habet applies (Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209; Rusoday Securities v. National St. Exchange 2021-3 SCC 4017; Umadevi Nambiar v. Thamarasseri Diocese, AIR 2022 SC 1640; P. Kishore Kumar v. Vittal K Patkar, 2024-1 CTC 547; Chandra Gopiv. U. K. Gopalakrishnan, 2013-1 KHC 174, Sarojini v. Santha Trading Co., 1969 KLT 412).

Part II

Ingredients of Adverse Possession

  • (a) hostile animus,
  • (b) denial of title of true owner – admitting the title of the true owner,
  • (c) wrongful dispossession of true owner,
  • (d) placing the date of starting of wrongful dispossession,
  • (e) some overt act,
  • (f) hostile (or notorious) acts must be peaceful, open and hostile to the true owner.
    • It is expressed in the classical formulation of adverse possession in the Latin maxim: “nec vi, nec clam, nec precario”
    • That is –
      • not by force: nec vi,
      • not in secrecy: nec clam
      • not by permission: nec precario.

Note:

  • (i) For perfecting adverse possession, the statutory requirement of ’12 years’ in the Limitation Act, 1963 (particularly Article 65) must also be satisfied.
  • (ii) It starts only – “when the possession of the defendant becomes adverse to the plaintiff” (Art. 65).
Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779;
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570;
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753

Drastic Change on Adverse Possession

Drastic change has been made, on the law on Adverse Possession, by 1963 Limitation Act. It introduced the words – “when the possession of the defendant becomes adverse to the plaintiff“.

  • Under the (previous) Limitation Act, 1908 (Arts. 142 and 144), the true owner had to file the suit within 12 years of losing possession (otherwise, there would have been adverse possession).
  • Under the 1963 Limitation Act, it is no longer necessary for the true owner to prove that he was in possession within 12 years of filing the suit (as required, earlier, by Arts. 142 and 144 of the Limit. Act, 1908).
  • The burden lies solely on the claimant of adverse possession to establish hostile animus, denial of the title of the true owner, wrongful dispossession, and other overt acts constituting adverse possession.
  • Bar of limitation arises, in a title suit (by the true owner), if only the defendants have a sustainable claim of adverse possession, after the 1963 Limitation Act.

Effects of the Drastic Change

  • The limitation starts ‘when the possession of the defendant becomes adverse to the plaintiff‘ (Art. 65, Limitation Act).
  • Mere possession, however long, will not be adverse.
  • Even if Plaintiff has knowledge of defendants’ possession (however long) – no relevance.
  • Adverse possession and title claim will not go together.
  • The claimant must (first) admit the ownership of the true owner.
  • An issue as to ‘adverse possession’ necessary.
  • Proper animus (pleading and proof) needed.
  • The ‘mindset/attitude’ of the true-owner is immaterial.
  • Defendants must have relinquished the title claim, if raised, to prop up adverse possession.
Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286,
Thakur Kishan Singh v. ArvindKumar, 1994-6 SCC 591,
Ramiah v. M. Narayana Reddy,  AIR 2004 SC 4261,
T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59,
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,
Ram NaginaRai v. DeoKumarRai, 2019-13 SCC 324,
Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, 
Uttam Chand v. Nathu Ram, 2020-11 SCC 263,
Govt of Kerala v. Joseph, AIR 2023 SC 3988.

Suit on Title – No Limitation Unless Defendant has Claim of Adverse Possession

  • No question of limitation arises unless the defendant substantiates his plea of adverse possession. This is because, after the significant change brought about by the Limitation Act, 1963, mere possession—however long—does not, by itself, become ‘adverse’.
Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
K.J. Abraham v. Mariamma Itty, ILR 2016-3 Ker 98;
C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007-14 SCC 183
Indira v. Arumugam, AIR 1999 SC 1549,
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808.

Acquiescence, Inaction, etc.

  • The same is the position even if – acquiescence, inaction, etc. on the part of true owner.
  • Even if the plaintiff admits that the defendant has been a trespasser for a hundred years, there will be no bar of limitation to a recovery suit based on title, if the defendant does not claim adverse possession.

No Adverse Possession, Unless Claimant ‘Admits Title of the True Owner‘

  • There can be no adverse possession where the claimant does not admit the title of the true owner.
Dagadabai v. Abbas @ GulabRustumPinjari, 2017-13 SCC 705,
Raghavan, v. Devayani, 2024-2 KHC 417,
M. Radheyshyamlal v. V Sandhya, 2024 INSC 214, pointed out M.Siddiq v. Suresh Das, 2020-1 SCC 1 (Ram Janmabhumi Temple case – 5 Judge Bench).
  • If the defendant (effectively) pleads adverse possession, admitting the plaintiff’s title, the plaintiff need not prove title.
  • Similarly, if the plaintiff (effectively) pleads adverse possession, the defendant, true owner, need not prove title.

Burden is on the Claimant

  • The burden to prove adverse possession is on the claimant (of adverse possession).
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
Janata Dal Party v. Indian National Congress, 2014-16 SCC 731,
C. Natrajan v. AshimBai, AIR 2008 SC 363; 2007-14 SCC 183,
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
Mohammad Ali v. Jagdish Kalita, 2004-1 SCC 271,
Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639.

Adverse Possession – Irrational, Illogical Claim

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517, it was pointed out that the claim of adverse possession must be read in the context of human rights. The law which ousts an owner on the basis of inaction within limitation is found in this case to be irrational, illogical and wholly disproportionate.

Part III

Sec. 3 of the TP Act

Section 3 of the Transfer of Property Act defines the expression – “a person is said to have notice”.

S. 3 of the Transfer of Property Act

The relevant portion of S. 3 of the Transfer of Property Act reads as under:

  • ” ‘a person is said to have notice‘ of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
  • Explanation I – Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-sec. (2) of Sec. 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share of interest is being acquired, is situated ).
  • Provided that- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,
  • (2) the instrument (or memorandum) has been duly entered or filed, as the case may be, in books kept under S. 51 of that Act, and
  • (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under S. 55 of that Act.

Explanation I to Section 3 of the TP Act is explained in Ranjit Singh v. Punjab State, 2014-4 LawHerald 3533; 2014-3 RCR(Civ) 766,  as under:

  • “19. Explanation I to Section 3 of the Transfer of Property Act clarifies that where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such party shall be deemed to have notice of such instrument as from the date of registration

The Privy Council applied this Doctrine with ‘Some Modification’

In Tilakdhari Lal v. Khedan Lal, AIR 1921 PC 112, while dealing with notice of registered mortgages, it was held that ‘it would not be reasonable to hold that registration was notice to the world of every deed which the register contained’ and that ‘the doctrine must be subject to some modification’.  The Privy Council further observed on the doctrine ‘registration as notice to the world’ as under:

  • “Their Lordships find it difficult to understand how such a difference can cause the register to be notice in the one case and not in the other. In either instance the doctrine of notice must necessarily depend upon the fact that there is a public register open for inspection, to which all persons having dealings with the property can have access; in each case they have before them the means of acquiring knowledge. In India that knowledge may afford complete protection even if notice be otherwise obtained of an unregistered deed. In England and Ireland that is not the case. But the completion of the register and the penal effect of non-registration do not appear to their Lordships to be any reason for causing the register to be notice in the one case and not in the other.
  • For these reasons their Lordships think that notice cannot in all cases be imputed from the mere fact that a document is to be found upon the register under the Indian Registration Act.”

An alienee, expected to make inquiry, presumed to have constructive notice

The Kerala High Court, in Gomathy Ammal v. Padmavathi Amma, AIR 1967 Ker 58, observed as under:

  • “Under S. 3 of the Act as amended, registration of a document by itself imports notice thereof. The law prior to the amendment has been laid down by the Privy Council in Tilakdhari Lal v. Khedan Lal AIR. 1921 P. C. 112, and in the concerned area by the Travancore High Court in Mariyadumperumal Chidambarathanu v. Namasivayom Sivakami 17 Trv.LJ 321 at p. 329.
  • The Privy Council said:
    •  “…. but nonetheless it shows that it would not be reasonable to hold that registration was notice to the world of every deed which the register contained. The doctrine must be subject to some modification. There may be circumstances in which omission to search the register would, even under the definition already given, result in notice being obtained and the circumstances necessary for this purpose may be very slight, but in the present case no such circumstances are found.
  • In Mariyadumperumal Chidambarathanu v. Namasivayom Sivakami, 17 Trv. LJ. 321 at p. 329 after a consideration of previous decided cases on the subject, the court said:
    • ‘without going so far as to lay down as an absolute proposition that registration is notice to subsequent alienees, we would hold that a subsequent alienee, who is expected as a prudent person to make inquiry or inspection in the Registry Officer, should be presumed to have had constructive or imputed notice of the prior registered deed, and consequently also of its contents as notice of the existence of a deed affecting title is notice of its contents’.”

Deems (only) ‘Constructive Notice’ of (earlier) Deed

That too to one who Subsequently Acquired the Property

In R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590, it is held as under:

  • “37. The legal position is well settled in that every document affecting an immovable property as provided in section 17 has to be registered so that any person who wants to deal or desire to acquire interest with such property could find out encumbrances if any, the legal obligations, rights and ownership or claim over such property, and registration acts as constructive notice to a person who subsequently acquires such property or interest or any part thereof or interest or fraction of interest thereof”.

Proposition ‘as to Notice to entire world’ is Not accepted in Adv. Possn. Claim

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property; and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Explanation I of Sec. 3 of the Transfer of Property Act is Explained in this decision as under:

  • “29. On going through the dictum laid down in the above judgments relied on either side, I am of the opinion that the registration of document isonly a constructivenotice to a person, who subsequently acquired that property or interest or any part thereof or interest or fraction of interest thereof. In this regard, it would be proper to refer Explanation I of Sec. 3 of the Transfer of Property Act, which reads as follows:
    • “Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, …..”
  • Thus, it is clear that the registration is only a constructive notice to the person who has subsequently acquired such property. If the submission of the learned counsel for defendants 1, 3, 5 and 7 that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers when the property was sold without their knowledge. Further, I find that the subject property was sold only within the family members and therefore, as contended by the learned counsel for the plaintiff, she might have been in a position to know about the same only at a later point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the property to the strangers. Further, I do not find any evidence in this case with regard to open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore, in my considered opinion, the principle of ouster cannot be applied in this case. The courts below have correctly appreciated the evidence and the documents adduced by the parties. The concurrent findings of the courts below reflect the evidence on record.”

In KS Natraj v. NIL, 2020-2 KarLJ 356 (B.V. Nagarathna, Suraj Govindaraj, JJ.) it is observed as under:

  • “20. The most important purpose of registration is to secure that persons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.”

Apply When Wilful Abstention from Making (expected) Enquiry

In Godhan Son of Pola v. Ram Bilas, AIR 1995 All. 357, it is observed as under:

  • (22) FROM the reading of this provision along with Explanation-I, it comes out that the person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from making such enquiry which a person normally ought to have made he would have known it. In such cases the persons can also be deemed to have notice. According to Explanation-I, where law requires a transaction to be recorded or to be entered in, completed by registered deed then in respect of such transactions which satisfy two conditions i. e. a requirement of law that transaction is to be entered into by registered instrument only and the same has been completed by registered document, then persons shall be deemed to have knowledge of that instrument from the date of registration. The registration of the document has (sic) taken to complete notice to world at large. The agreement to sale immoveable property of value of more than Rupees One Hundred, under the Transfer of Property Act, is required to be entered into by the registered document.”

Sec. 3 TP Act Notice is on immovable property; & It is not a Notice In Rem

In truth, the proposition, ‘registration of a document gives notice to the world‘ is not followed in India. In  Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205, it is held as under:

  • “(30) THE notice contemplated under Explanation 1 of S. 3 of the Transfer of Property Act by registration of a document relates to transactions with regard to immovable propertywhich is required by law to be and has been effected by a registered instrument and that also for a person acquiring such property or any part or share or interest in such property. It is not a notice in rem. Testamentary documents do not come within the purview of the notice as contemplated by the said section.

As regards the object of the Explanation to Section 3, it is observed as under:

  • It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability. (Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363).
  • The object of the Explanation to Section 3 is to safeguard the interests of a third party who has (already) acquired a good title under a previous registered instrument. (Kuldip Singh v. State, AIR 1954 P&H 31).

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