Gratuitous Possession of Property

Introduction

Consider a case of a person who
was in need of a house to stay and some close relative of his helped him by
allowing him to stay gratuitously in his spare house. This person continues
staying in this house for a significantly long period of time due to the
goodwill gesture extended to him by his relative. Since possession is often
considered to be nine-tenths of the law, can he now claim that by virtue of
such a long period of possession, he has acquired a legal right in the property
and hence, he also has a title to the property? Strange as this proposition may
sound, this is a reality which several people are experiencing.

The Delhi High Court had an
occasion to consider a somewhat analogous issue in the case of Sachin vs.
Jhabbu Lal, RSA 136/2016 (analysed in detail in this Feature in the
BCAJ of January 2017). In that case, the Delhi High Court held that in
respect of a self acquired house of the parents, a son had no legal right to
live in that house and he could live in that house only at the mercy of his
parents up to such time as his parents allow. Merely because the parents have
allowed him to live in the house so long as his relations with the parents were
cordial, does not mean that the parents have to bear his burden throughout
their life.

However, would the position be on
a different footing if a close relative was allowed to stay in a house for a
fairly long period of time out of sympathy, natural love and affection? This
was the issue deliberated by the Supreme Court in the case of Behram Tejani
vs. Azeem Jagani, CA 150/2017 (SC).

Facts of the Case

A person named Mohammed Ali Tejani
(“the deceased”) died, leaving behind a will. Prior to his death, he had a
fractional ownership in various immovable properties, flats in Mumbai. One such
property was a residential flat. The deceased resided in this flat with his
wife and his family members. After his death, his wife and his daughter’s son
(‘grandson’) continued to reside in this flat.

Under his will, the deceased
bequeathed his fractional ownership in all his immovable properties, including
the abovementioned residential flat, to his 4 brothers in equal proportion. He
did not provide for any life interest benefit or carve out any interest in this
flat for his wife or his grandson. The will was sought to be probated.

The grandson prayed before the
Bombay City Civil Court for a temporary injunction restraining the
beneficiaries under the will from dispossessing him and his grandmother from
the aforesaid flat since they were in use and possession of the same.

In reply to this, his 4 grand
uncles, i.e., the deceased’s brothers (also the beneficiaries named by the
deceased under his will) stated that the wife of the deceased was merely
allowed to use and occupy the suit premises by the defendants out of love and
sympathy without any fees or compensation; that the suit premises belonged to
them as co-owners since the testator had bequeathed his right, title and
interest in the building to them. They further stated that nonetheless, out of
sympathy, close blood relationship and out of love and affection, the
deceased’s wife had been allowed to use the suit premises. Further, since she
has no right, title or interest in the suit premises she could have no right to
permit any other person much less her grandson to interfere with the ownership
right of the co-owners. Accordingly, they opposed the grant of any interim
relief to the grandson.

The Bombay City Civil Court
dismissed the injunction prayer of the grandson. It held that the deceased’s
wife herself had no right in this premises. Only on a sympathetic ground she
was allowed to occupy the premises. In such facts, when the grandson came
before the Court claiming equitable relief like injunction, he had to prima
facie show some rights to claim the relief. If protection was asked for,
one must clearly seek ascertaining his legal rights. He merely claimed that he
was residing with his grandmother and if she herself did not have a right in
the property, then an injunction type of a protection could not be granted in
favour of the grandson.

On appeal, the Bombay High Court
overruled the verdict of the City Civil Court and upheld the grant of a
temporary injunction. It held that legal right of possession alone cannot be
the basis unless it is adjudicated, for overlooking the “settled possession”.
While deciding the possession right the City Civil Court had actually given a
finding against the maternal grandmother and decided that even she had no right
to occupy the premises and therefore, there was no question of permitting her
grandson to reside therein. The concept of “settled possession” could not be
equated with in all matters-“legal possession”. It depended upon the facts and
circumstances of a case.

It further held that the lower
Court proceeded on a wrong footing of law that the possession can be granted
only to the person who has a legal right to occupy the premises and no one
else. It felt that the law must take its due course with a foundation to
dispossess the person in possession of the premises only after a due trial. In
view of the same, it was inclined to observe that the order passed by the City
Civil Judge was against the settled principle of law with regard to the
possession of the property. It was however, made clear that the High Court was
only dealing with the protection of the possession of the premises and not the
ownership and/or title of the maternal grandmother of the plaintiff.

Accordingly, the beneficiaries
under the will of the deceased appealed to the Supreme Court.

Supreme Court’s Verdict

The Apex Court analysed the will
and observed that the will bequeathed the entire interest of the deceased in
the immovable properties in favour of his brothers. Neither the deceased’s wife
nor the grandson had any interest in these properties. She did not have any
right qua the premises in question but was permitted to occupy merely
out of love and affection. The status of the grandmother was thus of a
gratuitous licensee and that of her grandson was purely of a relative staying
with such a gratuitous licensee.

The Court referred to its earlier
decision in the case of Rame Gowda (Dead) by LRS. vs. M. Varadappa
Naidu(Dead), 2004(1) SCC 769. In that decision, the Supreme Court dealt
with the issue of settled possession by a person. It referred to Salmond on
Jurisprudence which held “that few relationships are as vital to man as that
of possession, and we may expect any system of law, however primitive, to
provide rules for its protection. . . . . . . Law must provide for the
safeguarding of possession….. Legal remedies thus appointed for the protection
of possession even against ownership are called possessory, while those
available for the protection of ownership itself may be distinguished as
proprietary.”

It also analysed its decision in Lallu
Yeshwant Singh (dead) vs. Rao Jagdish Singh, (1968) 2 SCR 203 where it
was held that the Law respects possession even if there is no title to support
it. It will not permit any person to take the law in his own hands and to
dispossess a person in actual possession without having recourse to a court. No
person can be allowed to become a judge in his own cause. Next, in Nair
Service Society Ltd. vs. K.C. Alexander, (1968) 3 SCR 163, the Apex
Court held that a person in possession of land assumed character of an owner
and exercising peaceably the ordinary rights of ownership has a perfectly good
title against all the world but the rightful owner. When the facts disclosed no
title in either party, possession alone decided. The court quoted Loft’s maxim ‘Possessio
contra omnes valet praeter eur cui ius sit possessionis (He that hath
possession hath right against all but him that hath the very right)‘ and
said, “A defendant in such a case must show in himself or his predecessor
a valid legal title, or probably a possession prior to the plaintiff’s and thus
be able to raise a presumption prior in time”.    

The Court thus held that it was
clear that so far as the Indian law was concerned, the person in peaceful
possession was entitled to retain his possession and in order to protect such
possession, he may even use reasonable force to keep out a trespasser. A
rightful owner who had been wrongfully dispossessed of land may retake
possession if he could do so peacefully and without the use of unreasonable
force. If the trespasser was in settled possession of the property belonging to
the rightful owner, the rightful owner shall have to take recourse to law; he
cannot take the law in his own hands and evict the trespasser or interfere with
his possession. The law will come to the aid of a person in peaceful and
settled possession by injuncting even a rightful owner from using force or
taking law in his own hands, and also by restoring him in possession even from
the rightful owner (of course subject to the law of limitation), if the latter
has dispossessed the prior possessor by use of force. It is the settled
possession or effective possession of a person without title which would
entitle him to protect his possession even as against the true owner. The
concept of settled possession and the right of the possessor to protect his
possession against the owner had come to be settled by a catena of
decisions, such as, Munshi Ram and Ors. vs. Delhi Administration,(1968) 2
SCR 455;Puran Singh and Ors. vs. The State of Punjab (1975) 4 SCC 518 and Ram
Rattan and Ors. vs. State of Uttar Pradesh (1977) 1 SCC 188. The Court
further observed that it was difficult to lay down any hard and fast rule as to
when the possession of a trespasser can mature into settled possession. The ‘settled
possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge
of the owner or without any attempt at concealment by the trespasser. The
phrase ‘settled possession’ did not carry any special charm or magic in it; nor
was it a ritualistic formula which could be confined in a strait-jacket. An
occupation of the property by a person as an agent or a servant acting at the
instance of the owner would not amount to actual physical possession.

It laid down the following tests
which could be adopted as a working rule for determining the attributes of
‘settled possession’ :

(i)   that the trespasser must be in
actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to
the knowledge (either express or implied) of the owner or without any attempt
at concealment by the trespasser and which contains an element of animus
possidendi. The nature of possession of the trespasser would, however, be a
matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession
of the true owner by the trespasser must be complete and final and must be
acquiesced to by the true owner; and

(iv) that one of the usual tests to
determine the quality of settled possession, in the case of culturable land,
would be whether or not the trespasser, after having taken possession, had
grown any crop. If the crop had been grown by the trespasser, then even the
true owner has no right to destroy the crop grown by the trespasser and take
forcible possession.

Next, the Supreme Court analysed
the ratio of another of its earlier decisions, Maria Margarida Sequeira
Fernandes and others vs. Erasmo Jack De Sequeira (Dead) through LRS, 2012 (5)
SCC 370. In this case, the appellant was married to a Naval Officer who
was transferred from time to time outside Goa and hence, on the request of her
brother she gave possession of the premises to him as a caretaker. The
caretaker held her property only on her behalf. The brother filed a suit for injunction
against his sister, the legal owner.

The Supreme Court observed that in
civil cases, pleadings were extremely important for ascertaining the title and
possession of the property in question. Possession was an incidence of
ownership and could be transferred by the owner of an immovable property to
another such as in a mortgage or lease. A licensee held possession on behalf of
the owner. Possession was important when there were no title documents and
other relevant records before the Court, but, once they come before the Court,
it is the title which has to be looked at first and due weightage be given to
it. Possession cannot be considered in vacuum. There was a presumption that
possession of a person, other than the owner, if at all it was to be called
possession, was permissive on behalf of the title-holder. Further, possession
of the past was one thing, and the right to remain or continue in future was
another thing. It was the latter which was usually more in controversy than the
former, and it was the latter which had seen much abuse and misuse before the
Courts. A title suit for possession had two parts – first, adjudication of
title, and second, adjudication of possession. If the title dispute was removed
and the title was established, then, in effect, it became a suit for ejectment
where the defendant must plead and prove why he must not be ejected.

In an action for recovery of
possession of immovable property, upon the legal title to the property being
established, the possession of the property by a person other than the holder
of the legal title was presumed to have been under and in subordination to the
legal title. It is for the person resisting a claim for recovery of possession
or claiming a right to continue in possession, to establish that he has such a
right. To put it differently, wherever pleadings and documents established
title to a particular property and possession was in question, it will be for
the person in possession to give sufficiently detailed pleadings, particulars
and documents to support his claim in order to continue in possession.

In Maria Sequeira’s case, the
brother did not claim any title to the suit property. Undoubtedly, the sister
had a valid title to the property which was clearly proved.The lower Courts had
failed to appreciate that the premises in question was given by the sister to
her brother herein as a caretaker.The brother’s suit for injunction against his
sister was not maintainable, particularly when it was established beyond doubt
that he was only a caretaker and he ought to have given possession of the
premises to the sister who was the true owner of the suit property on demand.
Admittedly, he did not claim any title over the suit property and he had not
filed any proceedings disputing the title of the appellant. The Supreme Court
held that an occupation of the property by a person as an agent or a servant at
the instance of the owner will not amount to actual physical possession.

It further held that the
possession of a servant or agent was that of his master or principal as the
case may be for all purposes and the former cannot maintain a suit against the
latter on the basis of such possession. Merely because the plaintiff was
employed as a servant to look after the property, it cannot be said that he had
entered into such possession of the property as would entitle him to exclude
even the master from enjoying or claiming possession of the property or as
would entitle him to compel the master from staying away from his own property.

In Maria Sequeira’s case, the
Court held that Principles of law which emerged were as under:-

(i)   No one acquired a title to the
property if he or she was allowed to stay in the premises gratuitously. Even by
long possession of years or decades, such person would not acquire any right or
interest in the said property.

(ii)  A caretaker, watchman or
servant can never acquire interest in the property irrespective of his long
possession. The caretaker or servant had to give possession forthwith on
demand.

(iii)  The Courts were not justified
in protecting the possession of a caretaker, servant or any person who was
allowed to live in the premises for some time either as a friend, relative,
caretaker or as a servant.

(iv) The protection of the Court
could only be granted or extended to the person who had a valid, subsisting
rent agreement, lease agreement or license agreement in his favour.

(v)  The caretaker or agent held a
property of the principal only on behalf of the principal. He acquired no right
or interest whatsoever for himself in such property irrespective of his long
stay or possession.

Hence, in Maria Sequeira’s case,
the judgment of the lower Courts were set aside and the Supreme Court directed
that the possession of the suit premises be handed over to the sister, who was
admittedly the owner of the suit property.

Accordingly,
after analysing and following the ratio of the above decisions, the Supreme
Court in Tejani’s case, concluded that a person holding the premises
gratuitously or in the capacity as a caretaker or a servant would not acquire
any right or interest in the property and even long possession in that capacity
would be of no legal consequences. In the circumstances, the City Civil Court
was right and justified in rejecting the prayer for interim injunction and that
decision was correct. However, it clarified that the matter having come up
before the Supreme Court from an interim order and since the main suit itself
was pending, observations made by it were not to be taken as concluding the
controversy and the merits of the matter will be gone into by the Court at the
appropriate stage.

Conclusion