WOMEN’S PROPERTY RIGHTS

WOMEN’S  PROPERTY RIGHTS

                                    

Earlier women did not have any rights in the property and they were at the mercy of the male members of the family. Joint Hindu Family, unique institution, acted as refugee home of many women and widows and with the disappearance of the Joint Hindu Family, the plight of women worsened.

Successive governments have enacted various laws aiming at improving / conferring property rights to women. Hindu Women’s Rights to the Property Act, 1937, deals with the rights of Hindu widow, on her husband dying without making any will. In such cases, the widow or widows are entitled to the share of the property as that of a son. But, her interest in the property, Hindu Women Estate, is limited interest.

Karnataka Hindu Law Women’s Rights Act, 1933, confers limited rights in the property to any women. This limited right is called limited estate, where women do not have right to disposal of the property by sale or by will. Women had full estate rights i.e. absolute power including that of disposal by sale / will in Stridhana property. Stridhana includes ornaments, apparel, gifts received and property acquired by her savings.

The Hindu Succession Act, 1956, brought out revolutionary changes in the property rights of women. Section 14 of the Hindu Succession Act confers absolute rights to a female in any property possessed by female Hindu. The rights are of full nature including unfettered rights of disposal of property.

Section 14 of the Hindu Succession Act covers both movable and immovable property acquired by inheritance, devise, partition, in lieu of maintenance, arrears ofmaintenance, gift, property acquired by her own skill, purchase, prescription, or in any other manner and also includes Stridhana held by her before the commence of this act. This absolute right operates retrospectively, since Section 14 refers to the properties acquired before or after the commencement of the act.

Another area which was improved upon was the Co parcener’s property. Co-parcener’s property is a Hindu undivided family property. The members of Hindu Undivided property are called co-parceners who are related to the head of the family and attain the right in the property by birth. The Co parceners include relatives within four degrees including Kartha. Earlier females were not members of co-parceners hence were denied succession to the ancestral property. Many States such as Karnataka, Andhra Pradesh, Maharashtra, Tamil Nadu, Kerala etc. amended the Hindu Succession Act 1956.

Amendment to Hindu Succession Act in Karnataka came into effect on 30-07-1994. This act gives equal status to women as that of a Male. She becomes a member of Co parcenary by birth in the same manner as that of a son.

On partition of the co-parcenary property women is entitled to equal share as that of a son. The property so acquired is capable of being disposed by her through will or any other testamentary disposition.

In certain cases the ancestral house may be the co-parcenary property. Such houses are generally, wholly occupied by the members of the Joint Hindu Family. In such cases, the female member cannot force a partition of such ancestral house unless other male members in occupation of the house opt for partition. But, the unmarried daughter, a married daughter deserted or separated from her husband or a widow is entitled to a right of residence therein.

More,

Advocate S .Selvakumar

WILL – BY A MUSLIM

WILL – BY A MUSLIM

                         

Testamentary Document or a testament means a document made by a person whereby he disposes of his property but unlike a disposal inter vivo, it is unilateral and comes into effect on his death, and therefore, the document comes into effect on the death of the testator only.

A WILL or testament is defined as a ‘declaration, made in accordance with the formalities required by statute, of the intention of the person making it with regard to the matters which he wishes to take effect upon or after his death. Until then, it is an inchoate or ambulatory document which can be revoked, modified or substitutedby another such document.

‘WILL’ is defined in Section 2 (1) of the Indian Succession Act, 1925 as the ‘legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death’.

A will must deal with the intention of the testator as to how his property is to be dealt after hisdeath. If such an intention is disclosed and the property is also dealt with, it is a will, but not otherwise, by whatever name it is called, and provided it is executed as required by the Law.

A will has no standard form but generally the contents of a will fall under the following heads:

(1) Name, address, age, occupation and community of the testator;

(2) Clause revoking all previous wills and other testamentary documents;

(3) Clause appointingexecutors, and trustees.

There is no maximum limit prescribed under Indian Law as to their number unlike English Law where the maximum limit prescribed is four under Section 160 of the

Supreme Court of Judicature (Consolidation) Act, 1925. 

But as far as possible the number of executors should not exceed three.

(4) Then will come the clause mentioning specific bequests followed by two clauses:

      (a) one containing general bequest; and

      (b) the second containing  residuary bequest.

The last one is very necessary otherwise if any property is not generally or specifically dealt with, the testator may be considered as having died intestate in

      respect thereof.

(5) A clause is also inserted stating that the testator is in sound health and proper state

      of understanding though that clause has not much value;   

(6) The last clause is about the testimonium and attestation;

(7  Date of the will can be given in the beginning or at the end, the latter being the

      standard practice.

So far as Muslims are concerned, the provisions of Part VI of the Succession Act, containing Sections 57 to 191 and which deal with execution of a will, the construction of the provisions of a will and the different types of legacies do not apply to Muslims in India. Sections 211 and 212 of Part VI of the Succession Act also do not apply to Muslims in India.

Therefore, so far as matters such as power to make a will, nature of the will, execution and attestation thereof etc., are concerned, the Muslims in India are governed by the Muslim Personal Law. Under that Law, a Muslim can make a WILL orally or in writing and no form is required for such writing. If the Will is in writing it need not be attested. A person who is a major and of sound mind can make a will and he can dispose of his all or any part of his property by will.  However, there are two basic restrictions on the power of a Muslim to make a will namely:

1.a bequest to an heir is not valid except to the extent to which the persons who are heirs of the testator, at the time of his death, expressly or impliedly consent to the bequest after his death; and

2.Muslim cannot dispose ofhis property to a person who is not his heir in excess of one third part thereof, except in cases such as

(i) where such excess is permitted by a valid custom;

(ii) where there are no heirs of the testator;

(iii) where the heirsexisting at the time of the testator’s death have consented to such bequest after his death; and

(iv) where the only heir is the husband or the wife and the bequest of such excess does not affect his or her share.

Any legacy bequeathed in such excess will abate according to the rules of the Law.A Muslim may change his will during his life time or cancel his legacy.A will may also become void if the testator, after making the will, becomes of unsound mind and continues to be so till his death.Similarly, a bequest which is contingent, or conditional or in future or is alternative would be void.

More,

Advocate S.Selvakumar

LEAVE AND LICENCE AGREEMENT

LEAVE AND LICENCE AGREEMENT

                       

 

The landlords have to take all necessary precautions to protect their rights through appropriately worded contractual documents called Leave and licence agreements. Rental Agreements are popular, but leave and licence agreement is more advanced and protects the interests of the owners. This is widely used in Mumbai and other metros and is gradually being adopted in Bangalore.

What is a licence?

Licence agreement is a document granting permission to use a land without a right to exclusive possession and such transactions are governed by section 52 of the Easement Act; however the Transfer of Property Act does not refer to leave and licence as a mode of Transfer of Property.

Section 52 of the Indian Easement Act, defines licence as where the grantor grants to another person or number of other persons, a right to do, or continue to do in the immovable property of the grantor, something which would, in the absence of such permission, be unlawful and such a right does not amount to an easement or an interest in the property, the right is called a licence.

A licence is notionally created where a person is granted the right to use the premises without being entitled to  exclusive possession of the premises or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the property. Thus, if the agreement is merely for the use of the property in a certain way and on certain terms, while the property remains in the owner’s possession and control, the agreement will operate as a licence agreement.

The person who grants the right to do something on his immovable property is called grantor or licensor and the person who gets the right is licensee. Licence is a personal right given to the licensee and therefore cannot be transferred by the licensee or exercised by his servants and agents Thus, the licence is the grant of permission to do something upon the immovable property, however it does not create any right in the immovable property in favour of the person, who does something. It is different from lease, which is a mode of Transfer of Property, where the lessee gets certain rights including the possession to do something that is occupying or residing. Even the possession is not exclusive, in leave and licence but deemed to the joint possession of both, the licensor or licensee. It is not an easement right and is in fact akin to residing in a lodge on payment of charge. The charges paid for occupation is called compensation.

Similarly, where the licensor transfers the immovable property to another person by way of sale, gift, etc., the transferee is not bound by the licence. This is not so in case of rented or leased property, where the transferee is bound by the terms of agreement made between the lessor and lessee.

Revocation of Licence

Where the licensor ceases to have any interest in the property.

Where the licensee voluntarily relinquishes the licence granted.

Where the licence is granted for certain period or to do some specific act and on

expiry of that certain period or completion of the act or non-performance of the

act.

Where the property in respect of which licence isgranted is destroyed or

permanently altered by superior force.

Where the licensee becomes the owner of the property.

Where the purpose for which licence is granted becomes impracticable or

abandoned.

Where the office, the employment or the character for which licence was granted

ceases to exist.

The licensee ceases to use the property for an unbroken period of 20 years.

Leave and Licence Agreements:

Though there are definite legal provisions, which separate licence agreements from lease agreements or tenancy agreements, often it is confusing leading to litigation. Outwardly both lease and licence seem similar. In lease or renting, a property is given to some other person for definite period on payment of some specified amount, which may be lump sum, or periodical called lease amount or rent. Similarly in leave and licence also property is given to some other person for use on payment of compensation. The real determining factor is the creation of interest in the property. It has been held in many cases that the intention of the parties and their conduct are important to determine whether a particular case is licence or lease. A provision to keep the property in good and tenantable repairs would be an indication in favour of lease or tenancy than licence.

Principles for Licence:

In another case, the court has laid down the following principles for determining the agreement as licence:

a.The agreement is signed by the licensee only.

b.The licences for carrying the business stand in the name of licensor.

c. Both the parties have control over the property,

d.Admission made by the licensee in subsequent correspondence indicating that the agreement is a mere licence

It has also been held that, if the licensee under the terms of licence constructs any structure of permanent nature and the construction made by the licensee with the knowledge and consent of the licensor; the licence cannot be revoked, likewise the licence cannot be revoked, when coupled with transfer of property and such transfer is in force.

So proper care should be taken while preparing the leave and licence agreement to include the points mentioned by different courts. The agreement should adhere to the following in general:

a. The period of licence should not be more than 11 months; even if feasible no definite period should be mentioned.

b. There should not be provision to extend the agreement with mutual consent.

c. The licence should be liable for cancellation without assigning any reason.

d. The possession should not be exclusive.

e.There should not be any provision for termination of licence or re-entry, if mentioned it would amount to exclusive possession and transfer.

f. There should not be any clause about keeping property in good and tenantable repairs, which is an indication of tenancy.

g. Avoid mentioning clauses pertaining to the payment of taxes, rates by the licensee.

h.Avoid mentioning clauses pertaining to letting or subletting, since license does not confer such rights on the licensee.

Contents of the Agreement:

Just incorporating the words licence, licensor and licensee in an agreement, does not make a document a leave and licence agreement, but the contents, intention of parties and their conduct determine the nature. Courts are inclined to treat the documents as that of lease, in case of any doubt as to whether a document is a leave and licence agreement.

The licence dealt in this article is different from nature of licence issued and granted to sell goods or to drive motor vehicles or to work as agents. Licence to use immovable property, is a contractual permission governed by Easement Act and is not a statutory licence. Drafting a leave and licence agreement is more difficult than any other document and only experienced and skilled advocates would be in a position to ensure that the agreement retains only the characteristics of a leave and licence agreement and leave no scope for anyother interpretation of such agreements. It is always preferable to go in for leave and licence agreement as it protects the rights and interests of the owner without giving undue favour to the occupants.

More

Advocate S.Selvakumar

ADVANCETOWARDS SECURITY DEPOSIT OTHER THAN RENT

                                       

Before finalizing the tenancyagreement, besides monthly rental amount, it should be borne in mind to furnish the security deposit amount as advance which would be refunded  without any interest, to the tenant, at the time when the tenant vacate the premises and hand over the same, intact.  This security deposit amount shall be utilized, in case the tenant commits failure to pay the monthly rental by appropriating the rental amount due from and out of the security deposit amount, and such default in payment of rental would be viewed seriously, resulting in getting the tenant evicted from the premises by the land lord.

Upon the termination of the agreement and the tenant vacating the premises, the dues payable by the tenant to the Land lord to be calculated and such amount need to be deducted from the security deposit amount held by the Land lord, and the balance remaining amount to be refunded to the tenant. This security deposit amount would not attract any rate of interest, and it is totally interest free.

The tenancy agreement should clearly specify as to who shall bear the expenses related to Government rent, property tax, utility expenses, management fees, building maintenance expenses, electricity gas and water charges, repairs and painting expenses, open area or common areamaintenance fees and the damages rectification expenses from fire or any other cause on the usage of the property, etc.

The important features related to the sewage/drainage maintenance, water tank maintenance, wooden partsmaintenance, garden maintenance etc.,  are to be taken care and it has to be specifically mentioned as to who shall bear the expenses, to be clearly mentioned in the tenancy agreement.

Alterationsto the premises

If the tenant is permitted to do the alterations within the structure, it should be so mentioned in the rental agreement, and the cost of the alterations as well as the maintenance of the altered structures should be borne by the tenant only and this fact to be mentioned in the agreement. Further, it should also mention, as to whether the tenant shall remove the altered structures, or not, while vacating the premises should need to be mentioned in the agreement.

More,

Advocate S.Selvakumar

ADVERSE POSSESSION DEPRIVES YOUR OWNERSHIP RIGHTS

ADVERSE POSSESSION DEPRIVES YOUR OWNERSHIP RIGHTS

                                 

Actual Possession of an immobile property is one in all the essential criteria thought of for ascertaining the possession over such property. In different words, someone may be in continuous possession of a property for many years while not title giving a chance to say possession of the property by adverse possession. The person claiming possession rights over the property on the premise of getting physicalpossession when the ending of the stipulated time of twelve years is termed as possession by Adverse Possession.However, the owner isn't empty his possession of the property by the mere incontrovertible fact that the some unknown is in continuous occupation of an equivalent if the owner takes action by implementing his possession rights inside an affordable time. The term affordable time is predicated on the availability envisaged within the Law of Limitation.

AdversePossession:

The occupation or possession may be termed as Adverse Possession once someone is possession of associate degree immobile property that adversely affects and deprives the interest of the realowner over such property. Thus, the term adverse it indicates a hostile or unfriendly possession, that is either expressed or tacit thereby denying the title of actuality owner.

Ingredientsto represent Adverse Possession:

The mere incontrovertible fact that someone is in occupation of an immobile property doesn't by itself convey or offer a chance to say possession by Adverse Possession. There are sure necessary ingredients that area unit to be proven for feat title by means of adverse possession.

Possessionof the property:

The foremost pre-requisite to put-forth a claim for adverse possession is that the same person has got to be in ownership of the property. Possession is kind of distinct from title and might be freelance of it. additional there's a distinction between possession and mere occupation. Possession within the context of claiming title by means of adverse possession suggests that physical occupation, as well as the intention of holding the property underneath occupation to the exclusion of owner. Thus, mere possession of a vacant piece of land or sharing of possession with others with none exclusive possession or while not hostile assertion against the $64000 owner wouldn't represent adverse possession as recognized by numerous High Courts.

Continuous possession:

Another essential facet is that the person who intends to say title by means of adverse possession should be someone who completely holds the immobile property brazenly, peacefully, enjoying while not interruption by actuality owner.

Adverseto the interest of the Owner:

It is additionally necessary that the unknown should be in possession of the property with intent to deprive the rights of the real owner thereby adversely moving the interests of the real owner.

Knowledge of the real owner:

Generally, house owners can convey possession of the property in favor of another on the premise of some reasonably contract, whether or not specific or tacit. For example, someone may be in occupation of a property as a tenant or licencee or in the other capability, that supported some relationship. in contrast to the higher than, within the case of adverse possession, the person in occupation of the property needn't be essentially a interloper or a unknown to the owner and therefore theincontrovertible fact that such someone is in continuous occupation of the property is well inside the data of the real owner, who will neither object nor trouble to interrupt such possession.

Further, the folks residing within the neck of the woods or neighborhood should additionally understand the keep of that individual person within the property. In different words, the occupation of the property by that individual person should receive adequate promotional material. it's not necessary that actuality owner ought to have actual data of the adverse possession farewell because it is hospitable be discovered and therefore the interested parties have data of it. but law doesn't facilitate a wrong-doer who obtains the possession of another’s property during a secret manner and has hid the data of possession from the one who is that the rightful owner.

Statutory amount of twelve Years: except for the higher than, it's additionally important that the person claiming possession over the property while not having lawful title will claim the property by means of adverse possession solely when completion of twelve years from the date of usurping possession.

However, the mere incontrovertiblefact that the person has been in ownership of the property for quite twelve years itself doesn't provides a right of adverse possession. The amount of twelve years, provided underneath the Limitation Act, has got to be proven beside decent proof of existence of all the higher than explained essential ingredients.

Assertion of right by the Owner: additional, the owner ought to have did not assert his right over the property inspire of getting data regarding the occupation of the property by a unknown. Law doesn't favor those that stay over their rights inspite of being alert to the actual fact that the occupation of the premises by the unknown is hostileto the possession rights. In fact, Law of Limitation provides a chance to the owner to claim and enforce possession rights inside a amount of twelve years, that runs from the date once there's an intention of the person claiming adverse possession to amass the property that belongs to a different person and runs against the interest of actuality owner having a right of immediatepossession.

Thus, the mere incontrovertible fact that the person is in possession of the property doesn't confer possession rights unless an equivalent is amid an open assertion of hostile title. In fact, the possession turns adverse only if the proper of the owner and therefore the true owner doesn't match. The person holding possession of the land ought to hold an equivalent on behalf of some person aside from true owner, whereas actuality owner right along features a right of immediate possession of the property, however ne'er makes a shot to enforce his right over the property.

Instancesof Adverse Possession:

If there's a scenario that possession has been condemned by a interloper or the other person, whose possession was originally lawful, however became unlawful after. The interloper claims possession over the property, whereas the owner isn't inclined to require any action. The interloper starts paying taxes and starts managing the property for quite twelve years claiming interest against the owner. In such case, the probabilities of the owner losing the property are terribly high.

There is no law that says that possession can't be non inheritable  by force or by someone who doesn't have title. All that matters is that the mode within which the title is non inheritable .The principle behind the thought of law of adverse possession is that Law doesn't continually facilitate those that stay over their rights while not declarative their rights inside the permissible amount once some person is deliberately attempting to act which might adversely have an effect on the interest of the owner.

More,

Advocate S. Selvakumar

ADJUDICATION OF MATTERS CONCERNING PAYMENT OF STAMP

ADJUDICATIONOF MATTERS CONCERNING PAYMENT OF STAMP

                              

ADJUDICATION means that a choice that is rendered by a competent authority or a choose on controversial or disagreed problems. It’s often disputed or disagreed within the matters of stamp tax payable by persons seeking registration of certain instruments.

In spite of clear description of quality of stamp tax underneath the assorted Articles of the karnataka stampact, disagreements between executants and the registering authority and conjointly sure doubts do enter into the minds of person wanting to register.In order to get rid of such disagreements or doubts, someone is sceptred underneath the provisions of the karnataka Stamp Act 1957 to adjudicate the difficulty or request the opinion of the District Registrar/ Deputy Commissioner on correctstamp tax to avoid complications like, under-valuation and penalty at later stage.

The Registering authority himself is additionally sceptred underneath the Act to create a relation to the Deputy Commissioner / District Registrar for determination of the stamp tax on the property just in case of disagreements or disputes arise wherever the person is declined to pay the stamp tax set forth by him. As provided underneath the Act, any instrument that is either dead or not and antecedently sealed or not will be brought to the District Registrar / Deputy Commissioner to have his opinion as to the Stamp Duty with that it is indictable.

For doing thus, the person ought to build an application with a fee of Rs.100 and also furnish an abstract of the instrument and an affidavit or other evidence as would support his claim on set forth value or such duty to be determined by the District Registrar.

Admission

On receipt of such application on with fee, abstract of the instrument or alternative evidences, the Deputy Commissioner/District Registrar having glad all told respects, shall build his best judgment to see the stamp tax to be collectible or decide that the duty claimed by the person suffices the right description of chargeability alternatively decide that the stamp tax already paid is up to the duty thus determined by him or in his opinion, such instrument is not indictable. Oncesatisfying the case, the Deputy Commissioner / District Registrar shall certify the endorsement on such instrument consequently and fitly.It is conjointly only if the District Registrar/Deputy Commissioner might also refuse to proceed during this judgment, if the person doesn't fulfill the conditions stipulated in that.

The provision of the Act provides that no proof fitted out in pursuance of this judgment shall be utilized in any civil proceedings against someone except in any enquiry relating chargeability of stamp tax. Further, all and sundry by whom any such proof is fitted out shall, on payment of the complete stamp tax that is proportionate with thechargeability of the instrument, be alleviated of penalty for his omission.Endorsement not sceptred

However, the Deputy Commissioner/District Registrar isn't sceptred underneath the availability ofthe Act to allow endorsement on the instruments of the kinds hereinafter delivered to him.

a)After expiration of 1 month from the date of its execution or initial execution in Bharat.

b) dead or initial dead out of india and delivered to him once expiration of 3 months once it's been initial received within the State of karnataka.

c) Or any instruments indictable with duty not surpassing fifteen paise or a mortgage crop with a obligation of twenty 5 paise once delivered to him once the execution there of, on paper not punctually sealed.

Referencefor call

It is conjointly provided underneath the Act that even the Deputy Commissioner / District Registrar is enabled to refer his own call in pursuance of this judgment, just in case of his doubt concerning the chargeability of stamp tax, to the Chief dominant Revenue Authority who also will provide his call in that. More so, the Chief dominant Revenue Authority, is additionally sceptred suo moto among 5 years from the date of order elapsed the Deputy Commissioner/ District register, to incorporate and examine the records about such order elapsed Deputy Commissioner / Registrar once examining records and hearing the parties, pass an order in writing confirming, modifying or setting aside such order and direct the Deputy Commissioner / District Registrar. Again, the Chief dominant Revenue Authority will refer its opinion to the supreme court of Mysore for a choice.

Generally, the Sub-Registrar is underneath duty and obligations to simply accept the instruments for registration once perceptive all formalities. In cases wherever the registeringauthority is deemed to own set forth the stamp worth that, in step with the person needing to register, is more. The person aggrieved will undoubtedly approach the Deputy Commissioner/District Registrar, with application, fee and other documents, for applicable relief.

ADDITIONS,ALTERATIONS AND CANCELLATIONS TO PROPERTY DOCUMENTS

ADDITIONS, ALTERATIONS AND CANCELLATIONS TO PROPERTY DOCUMENTS

                          

Documents are the record of assortedtransactions; they contain sure terms, conditions, thought quantity, and names of the parties to the dealing, date of the dealing, clear and complete description of the topic of dealing, thus on build them simply known. For example; Sale Deed of a property contains the origin, flow of the title, gift standing, names of marketer and buyer, thought quantity, easementary right and temporary description of the property with construction and limits. They’re the permanent records that are relied on for generations. Such documents should be clear, readable, and freed from error and will not produce any doubts or disputes. They replicate the terms of dealing that each the parties have freely consented.

At times, some additions, alterations, cancellations are inevitable, that are noticed at the time of execution. Any such alterations, cancellations, additions ought to be done before presenting the document for registration. All such modifications ought to be attested by full signature of all the parties to the documents. But, signature of witness isn't necessary for such modifications. Solely full signatures and not initials or short signature ought to be insisted. For cancellations, the initial words ought to be showing neatness stricken off; it ought to be signed by parties to the document.

Erasing with fluid shouldn't be used. Registering Authority records such additions, alterations, cancellations page wise on the document itself. This validates the additions, alterations, cancellation etc. Any modifications done once the registration aren't valid and don't kind a part of the document. Moreover, the document itself becomes invalid. Copies of the registered documents are maintained at registering Offices and authorized copies issued by such Authorities additionally record on certified copies the amount of cancellations, additions and alterations done before registration. They are doing not contain something supplemental, deleted, changed once registration. So, correct care should be taken so all the modifications are done before registration below the complete signatures of all the parties to the transactions. If something should be modified once registration a separate Rectification Deed should be dead.

Fillingup the blanks

Some documents could have blanks because the needed info are going to be out there solely at the time of execution. Typically date of execution is left blank, till the date is finalized. The small print of demand drafts, cheques like range, name of Bank, branches are all left blank. All such blanks ought to be crammed up before presenting the document for registration and will be attested by all the parties to the document or executor below full signature.

Attestation

Attestation means that witnessing the documents. Sure documents like can, Agreement to Sale, Sale Deed need attestation. Execution of the documents ought to be witnessed by 2 Persons, who are Major and of Sound mind. Each the witnesses ought to affix their full signature and will furnish their address. Attestation isn't necessary just in case of sure documents.

ThumbImpression

There are many folks who cannot sign. Thumb impression of such folks is taken for execution of documents rather than signature. Left hand Thumb impression (LTM) in case of males and right hand Thumb Impressions (RTM) in case of females ought to be obtained on documents for execution. Temporary description “LTM   or   RTM of Sri/Smt…………………        “Has to be written at once below the thumb impression. Because the persons, who affix thumb impression are illiterate, who cannot browse or write, the whole contents of the documents ought to be browse over and explained to them and a separate note thereto result should be annexed to the document ideally signed by an Advocate.

Thus, the transfer or assignment of right, title and interest over the properly, no matter the character of transfer, entirely depends upon the Deed of Conveyance. Any ambiguity, inadvertent addition or deletion within the Deed could create to disputes. Therefore, to avoid any unsavory things care ought to be taken whereas drafting the property documents.

Possessionof property

It is important that, the transferrer transfers possession of the property in favor of the Transferee. It’s not necessary that actual physical possession should be bimanual over to the Transferee, however even grant of ownership can transfer and make right and interest over the property in favor of the Transferee.

More,

Advocate S.Selvakumar

ABOUT A SALE DEED

ABOUT A SALE DEED


                               

 




Sale Deed is also known as conveyance deed. This is the document by

which the seller transfers his right to the purchaser, who, in turn, acquires

an absolute ownership of the property. This document is executed

subsequent to the execution of the sale agreement and after compliance

of various terms and conditions detailed in the sale agreement.

Before the execution of the sale deed the title of the seller is to be

established beyond doubt. Copies of the documents of title must be

scrutinized by an advocate, well versed and experienced in property

dealings.



If there is any encumbrance on the property, such encumbrance is to be

cleared by the seller at his cost.All statutory payments like property tax,

water and power charges and any other payments due on the property

should be cleared before the execution of the Sale Deed. Any previous

charges or mortgage should be clear before execution of the Sale Deed.

Clearances, and permissions required to be obtained by the seller should

be obtained prior to execution of the sale deed.Latest encumbrance

certificate of the property, subsequent to the date of the sale agreement

up to the proximate date of sale deed should be obtained, and such

certificate should be of nil encumbrance.All the persons having interest in

the property should be made parties to the deed. Particular attention

needs to be paid in case of purchase of properties from a Limited

Company, Partnership Firm, Hindu Undivided Family, Trust, Power of

Attorney Holder and Minor.



Draft Sale Deed

A draft Sale Deed, containing full details of the parties, advance amount

paid, mode of balance amount payable, receipt of the balance amount by

the seller, handing over the original documents of the property, handing

over the possession of the property, handing over the authorization letter

to transfer power and water meters, signing of the application for transfer

of khatha, title of the seller of the property, indemnifying the purchaser in

case of defect in the title, easement rights, will be prepared by the

purchaser’s advocate. Such draft Sale Deed should be captioned as draft

Sale Deed and shall be signed by the purchaser’s advocate.


A copy of the draft Sale Deed will be given to the seller for his approval.

The seller and his advocate will verify the draft sale deed and approve it,

or may suggest suitable deletions, additions or amendments. The purpose

is to bring forth the correct intention of the parties to the Sale Deed.

On approval of the draft Sale Deed, the same has to be prepared on a

quality or a document paper. In Karnataka it may be prepared on good

quality paper like bond paper or green paper and the stamp duty may be

paid by way of demand draft or pay order or cash. The exact amount of

stamp duty should be ascertained from the Sub Registrar office. Purchaser

is liable to pay the Stamp duty as per value stated in the documents or as

per the Sub- Registrar office value whichever is higher.



Execution

After the Sale Deed is prepared all the parties to the deed shall execute it

by affixing full signatures. Each page should be signed by all the sellers.

Any overwriting, cancellations, erasures and additions have to be

authenticated by full signatures of the parties.The execution of the Sale

Deed requires to be witnessed by two witnesses. The witnesses shall give

their full particulars and addresses.

Sale Deed of immovable property of value more than Rupees one hundred

needs compulsory registration. The duly executed sale deed should be

presented at the jurisdictional sub-registrar office. All the parties,

including the confirmation witnesses shall be present at the time of

registration and admit the execution. Purchaser also has to be presented

for the execution of the documents at the Sub Registrars office. In case

the purchaser is not in position to be present before Sub Registrar, he can

give Power of Attorney to any of his persons to sign and present the

documents on his behalf. In case seller signs the Sale Deed, it is

compulsory that through the registered Power of Attorney holder only can

represent for him to present the documents before the Sub-Registrar.

Registration

2 In Karnataka, the Sub-Registrars office, take the photos of purchaser,

vendors, witness and also their thumb impressions and print the same on

the Sale Deed.The vendors has to produce all the original documents

pertaining to the property to the purchaser. If the property is divided into

one or more portions, the seller has to give certified copy or Xerox copy of

the documents to the purchaser and has to give declaration to that effect.

Generally, the larger portion holder should get the original documents.

There is a time limit for presenting the documents for registration. The

time limit is four months from the date of execution.  Thereafter a grace

period of another four months is allowed on payment of penalty. The

maximum penalty is ten times of registration charges.

At times, the registering authorities may dispute the stamp duty paid. In

such cases, the purchaser has an option of paying the additional stamp

duty by way of cash or payorder. The purchaser may contest it in which

case the Sub Registrar will do the pending registrations and send it to the

Registrar of Under Valuation to arrive at proper Stamp Duty.

Parties have to quote their Income Tax Permanent Account Number in

case the transactions are done in cash for the property which values more

than Rs 5,00,000. Parties, who have not yet been allotted Permanent

Account Number, will have to file Form No.60 or Form No. 61 in case of

Agriculturists.



The purchaser’s advocate has to take all precautions while preparing Sale

Deed. It is a most important document and decides the fate of the

purchaser.  The purchaser has to preserve the Sale Deed very safely.


More,

Advocate S. Selvakumar