A clear and marketable title of
property free from encumbrance would provide the owner a rightful ownership of
such property and the possession of the property could be either physical or
constructive.
The foremost requirement to be
exercised by the intending purchaser of property is to thoroughly scrutinize
the title deeds of the property. There is no particular yardstick prescribed to
trace out the title and, therefore, it depends upon the diligence and
application of mind of the person who scrutinizes the documents. Scrutiny of
documents is a specialized work and only persons who are well versed in
scrutiny of property documents can analyse and give a clear opinion. Generally
speaking, origin of the property, subsequent transfers and the present status
are the three most important aspects which are taken into consideration to
trace the title of a property.
There are different modes of
acquisition of property by any individual. Some of the modes of acquisition of
property are Grant Land by the Government, allotment made by the Government /
Various Autonomous bodies / Housing Societies, etc., acquisition of property
under a Will, by purchase or inheritance.
If the property is a Grant Land or
allotted by any authority, then the Grant Certificate or Allotment Letter
issued by the Competent Authority is necessary, apart from the other relevant
documents. In the case of acquisition of property under a Will or by way of
purchase, Gift, Exchange, Partition, Release, Settlement or inheritance, it is
necessary to scrutinize and verify all the relevant documents of 42 years prior
to the date of the present transaction to ascertain the transactions which have
taken place during this period. This will enable the purchaser to make sure of
the valid title of the vendor. At the same time, genuinenesshttp://www.advocateselvakumar.com/ of the relevant
documents at the time of transfer of property during this period has to be
diligently examined.
The next important step is to examine
the present status of the property i.e. who is the present owner, whether his /
her name has been recorded in the revenue records of the concerned Authority
and whether property taxes are being paid by the owner periodically.
The third step is identification of
the property which is very important and a must. The purchaser should not only
get the property identified but also should compare the description of the
property shown in the document with the actual. Accurate details pertaining to
the number assigned to that particular property, its extent, boundaries, name
of the Village or Municipal Council or any Autonomous bodies within whose
limits the said property falls are required to be ascertained. If the building
exists on the particular property, then details pertaining to the existingbuilding and whether the building is constructed in accordance with the
building sanction plan and relevant Bye Laws of the concerned Authority has to
be mentioned. Measurements mentioned in the document should tally with the
physical measurements. In case the physical measurement mentioned in the
document is less than the actually physical area available, the actual area
available is to be considered for the purpose of payment and documentation.
Normally, the purchaser shall pay either for the measurements mentioned in the
documents or the actual physical measurement, whichever is less.
Nature of title such as tenancy
right, occupancy right, possessory right, full ownership is also another
important aspect which requires search and examination since the persons having
some interest or right over the property are necessarily to be made as parties
to the transaction, sale or mortgage.
If the property is tenanted, then it
is very important to get confirmed from the tenant that there is no litigation
pending between the vendor and the tenant pertaining to the ownership of the
property or the tenancy rights. Further, it is also necessary to convey the tenant
about the proposed sale transaction and to attorn the tenancy in favour of the
purchaser.
Conversion
Normally, agricultural lands cannot be put to use for non-agricultural purposes. To put to use the agricultural land for non-agricultural purposes it is mandatory to get the agricultural land converted for utilization for non agricultural purposes. However, there are certain exceptions to this mandatory requirement and the agricultural land can be put to use for non-agricultural purposes with the specific order of the competent authority. The special enactments applicable to grant lands also require to be looked into. Further, it is also necessary to find out from the Land Acquisition Department whether the property in question is under the orders of acquisition by the Government and whether any notification to this effect has been issued. by the Government.
Normally, agricultural lands cannot be put to use for non-agricultural purposes. To put to use the agricultural land for non-agricultural purposes it is mandatory to get the agricultural land converted for utilization for non agricultural purposes. However, there are certain exceptions to this mandatory requirement and the agricultural land can be put to use for non-agricultural purposes with the specific order of the competent authority. The special enactments applicable to grant lands also require to be looked into. Further, it is also necessary to find out from the Land Acquisition Department whether the property in question is under the orders of acquisition by the Government and whether any notification to this effect has been issued. by the Government.
Verification of encumbrance
certificates is a part of scrutiny of property documents to rule out any
subsisting encumbrance over the property. But, such certificates cannot be
totally relied upon since there are instances wherein transactions duly
registered in the concerned Sub Registrars office are not reflected in the E.Cs
issued by the department. In such cases it is necessary to do the search in the
office of the Sub Registrar, on payment of the prescribed fees.
In cases of sale of ancestral
property, it is necessary to find out whether the vendor has a clear title over
the property and there are no claims of minors interest. If the property
proposed to be conveyed is ancestral property, then the involvement of Minors
interest is very common. In cases where minors interest are being transferred
or conveyed, permission from the court for conveying the property is mandatory
under the provision of Guardianship and Wards Act. If the property is conveyed
in contravention of the provisions of this Act, then such conveyance can be
challenged by the Minor within three years from the date of his attainingmajority or from the date of getting knowledge of such a sale.
Thus, for purchase of property it is
necessary to verify as to how the vendor has acquired the property. Only upon
being satisfied about the valid title of the vendor, the purchaser can
negotiate and enter into an agreement of sale with the vendor. It may be noted
that if the property is a composite property, then most of the owners will
retain the original title documents and only Xerox copies of such documents
will be delivered to the purchaser.
Since scrutiny of property documents
is technical in nature, utilization of services of an experienced advocate in
property matters would help the purchaser immensely and while scrutinizing the
documents the advocate shall be able to decide as to which documents are to be
in original and which could be certified copy or Xerox copy.
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