Monday, 20 April 2015

Franking of Stamp Papers


http://www.advocateselvakumar.com


Common man needs small denomination of the stamp papers for various purposes like affidavit, Rental agreements, agreements, undertaking, power of attorney, bonds, memorandum of understanding etc. Public needs stamp duty of the denomination of  Rs20, 50,100 & 200 for  executing  affidavits, rental agreement,  Indemnity Bonds abnd Sale  Agreement  respectively . These are all the common requirement of stamp duties for giving legal sanction to any kind of documents. Now-a-days  the government departments are insisting for obtaining affidavits and indemnity bond  for various purposes.

Non-availability

Previously, department of stamp duty was appointing the authorized stamp vendors to sell the stamp papers for the above said documentation purpose. It was like a public fare price shops, wherein such stamp papers were easily available not only in all the important places but also in a very remote and interior villages. Infact, Stamp papers were available even in the late night also. Any understanding between the parties will be reduced in writing on the stamp paper and would be signed on that, as the same will be binding on both the parties. After the Telgi scam, from 01/04/2003, using stamp papers for the purpose of any documentation has been totally prohibited in Karnataka. 

S.B.M.paper

After the amendment of Section 10A of the Karnataka Stamp Act, 1957, provision has been made for payment of stamp duty by DD/Pay Order or Bankers Cheque, drawn in favour of the concerned Sub-Registrar office for sale deeds and other documents. Obtaining stamp papers of  small denomination, only two option are available. One is, franking the stamp paper  in the concerned sub-registrar office and another one is purchasing the document  sheet from the state bank of Mysore. Unfortunately, both the modes of obtaining stamp papers are very tedious since it involves lot of  procedure and formalities. Further, the said facility is avaible to the public only for  5 to 6 hours every day.  Infact only in few  branches of State bank of Mysore the facility of  issuing stamp papers are available. In such case, public has  to fill up the challan and  mention the denomination for which stamp paper is required and accordingly  has to pay the requisite commission charges on such amount and later has to stand on a very long queue. So getting a stamp paper in SBM is a time consuming process. Again, such authorized branches of State bank of Mysore are not much interested in issuing this stamp paper rather they are concentrating more on their banking business. Infact, among those authorised branches also, only one or two banks only will issue the stamp paper on that particular date and priority will be given   for their regular customers of the said Bank.

Franking procedure 

The matter has to be typed in the white paper or document sheet and has to be submitted for franking along with the application, but without date and signature of the parties to the said document. This facility is available in certain particular sub registrar offices only such as Jayanagar, Gandhinagar, Basavanagudi, Shivajinagar, Rajajinagar, Kengari, Anekal Sub registrar offices, this facility is available and the franking time is only  between 10:30 A.M. to 3:30 P.M, excluding the lunch hour. Rules and regulations varies from one sub-registrar office to the other. If the party produces the documents for franking, the concerned sub-registrar may refuse by various reasons. For example, if a person made a lease agreement more than 11 months, or that the agreement involves advance amount or if GPA is executed in favour of person other than his/her family member then it may be refused due to insufficient stamp duty. However, it is not a duty of the sub-registrar where the franking of the stamp duty is done to ascertain the stamp duty, but it is by the District Registrar or the Court which should decide the requisite stamp duty on any document at the time of presenting the documents.

Fake Papers

For the past two years, small denomination stamp papers were available easily everywhere. After abolition of the stamp papers, government has not taken any initiative to get the small denomination of the small papers by easy method, which has forced the public to buy the paper in the easiest way in the Taluk office and sub registrar offices entrance, which has resulted in the creation of lot of (small Telgis). Infact, two months ago, City Crime Branch (CCB) raided few of the Sub-registrar offices and Taluk Office and have booked 38 illegal franking, out of which 21 cases in City Civil Court premises and the rest at Mayo Hall, Yelahanka, Peenya, Yeshwanthpur, Koramangala and Jayanagar and arrested nearly 47 agents for having involved in the circulation of fake stamp papers and franking ink and pads, seals and franked blank sheets were also seized . These fake papers are either franked from their own franking machineries or from the original stamp papers, they are using color zerox. People should approach the  authorised Sub Registrar offices to get the stamp paper  embossed on the typed text before signature.

Franking machine   

The Franking Machines shall be used for franking impression of Stamps on all kinds of instruments on which Stamp duty is payable under the provisions of Indian Stamps Act 1899 and the Karnataka Stamp Act, 1957 and the rules made there under.

Usage of Franking Machine by the Proper Officer  

• Franking Machines shall be installed before the Proper Officer, at the office of the Superintendent of Stamps, Bangalore, Offices of the District Registrar and Offices of the Sub-Registrars at Gandhi Nagar, Jayanagar, Shivajinagar, Basavanagude, Rajajinagar and Kengeri or  in any other offices as may be authorized by the Chief Controlling Revenue Authority in Karnataka for impressing Stamps indicating the payment of stamps duty on the instrument chargeable with duty and the operation of the same shall be under strict vigilance and supervision of the Proper Officer.

• Before the machine is put to use, the same shall be authorized loaded and sealed by Superintendent of Stamps or District Registrar, Assistant Commissioner of Stamps or such other officer authorized by Chief Controlling Revenue Authority and shall maintain Register in Form No.1 regarding loading and reloading and Form No.2 regarding return of the same and shall be scrutinized every month. In case of  periodical loading of the machine, sanction from District Registrar is necessary if the same is being carried out by the officer other that those authorized to do such act, which shall be entered in Form No.3.

• The access code to the numeric of the Franking Machines shall be exclusively with the Superintendent of Stamps or District Registrar who shall be responsible for non disclosure, thereof to any person and who shall maintain a separate register in respect of each loading / reloading / incrementing of the amount. 

• The Proper Officer shall ensure that the seals are not tampered with, in any way by any person or that machine is not handled by any un-authorized persons. 

• The Proper Officer shall be responsible for the custody of the machine.  A register in Form No.4, shall be maintained in which the meter reading are recorded separately, both at the commencement of the day and at the close of the day.  The difference between the said readings shall be the total amount collected in respect of impressions franked.

• The parties desirous of having stamps impressed on all kinds of instruments  shall make an application in Form No.5 along with the instrument and value of Stamps to be impressed, by Challan or Cash or Pay Order or Bankers Cheque or Demand Draft to the Proper Officer and on the receipt of the same, requisite amount of stamp duty will be embossed on the instrument and thereafter the Proper Officer shall affix his signature in the space provided on the impressed stamps, which shall be serially numbered and the particulars are to be entered in Form No.6.

• The authorized user shall at all reasonable times allow authorized office or the authorizing authority or the District Registrar to inspect the machine and collect records without notice.

• Franking or impressing of Stamp may be allowed up to any amount and such amount, as far as possible, has to be made on the right top corner of the first page of the instrument itself and has to be clear and in bright red colour only. Incase of any mistake or wrong in the amount impressed then that impression shall be torn from the instrument and pasted in the register of daily posting and shall be authenticated by the authorized user or proper officer.  At the time of resetting, set off equal to the amount of wrong impression shall be given. 

Thus, non-availability of small denomination stamp papers has forced the public either to approach the agents near court complex or sub-registrar office entrance or to enter into agreements in white paper, without paying requisite stamp duty, which, in turn, leads to lot of litigations. In order to solve this problem, the Department of Stamps and Registration has to provide sufficient modes for availing stamp papers of small denominations, which also generates more income for the Government.


Posted by at No comments:

Friday, 17 April 2015

Restrictions on the use of Immovable Property

Restrictions on the use of Immovable Property



The absolute owner has absolute rights over the property.  He may use the property as he likes.  But these are certain compulsions, which restrict his rights to use the perform as he likes.  The restrictions are imposed under various levels, mostly in common interest of public in large. When any person becomes owner of property, one of his/her important right is right to use and enjoy the property in any lawful purpose and peaceful manner.  The Transfer of property Act provides for certain exceptions.  This is reflected in Sec 11 of transfer of property Act – 1882, which provides as follows:

Sec  11 Restriction repugnant to interest created —  “Where on a transfer of property, an interest there in is created absolutely in favour of any person,  but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there no such direction”.

Sec  11  directs that there can be no restriction on the enjoyment of property which has been transferred absolutely.   Eg.   Where the property has passed absolutely to the purchaser, any direction contained in the sale deed which is contrary to the absolute enjoyment  is void and not enforceable. 

But, Section 11 Provides for an exception. Section stipulates that if any restrictions  are imposed on a piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property such directions/restrictions shall prevail over. This situation arises mostly in case, where a portion of proportion is transferred and the another portion is retained by the owner.  The owner may put some restrictions on the use of the property sold for the benefit of portion of land retained by the owner.  However such restrictions are not binding on third parties who are not a party to the contract.

Section 40 of the Transfer of property Act also deals with restrictions on the use of the property by its owner.  In the section prescribes “Where, for more beneficial enjoyment of his own immovable property, a Third person has independently of any interest in the immovable property of another person, or any easement there on, right to restrain the enjoyment in a particulars manner of later property.  This is right of  a third person. Who is not a party to the contract.  This right is available against transferees .  But such rights are  enforceable against a transferee with notice or against a transferees got the property without consideration they are not enforceable against transferee without notice or against a transferee with consideration or against the property. There are clear difference between section 11 and 40.  The restrictions under section 11 are positive or affirmative.  These restrictions are enforceable only against the parties to the contract.  But restrictions under 40 are negative in nature and are enforceable by the third parties, against transferees.

Another important section which restricts the use of property is section 17. According to this section, the transferor may direct the transferee to accumulate.  The income arising from the property.  The direction may to accumulate the income either in full or in part.  However such directions to accumulate the income cannot be permanent.  Such directions may be imposed for a period of eighteen years from the date of transfer or for the life of transferor whichever is longer.  Any direction for accumulation of income arising from the property transfer for a period longer, than the periods referred are void.

For example, the grantor of the property may provide for enjoyment of the property by Mr. “A’ until Mr. “B” attains 18 years of age are also direct Mr. “A” to accumulate the income from the property until “B” attains 18 years of age. 

But transferor can direct the transferee to accumulate the income arising from such property for indefinite period for the purpose of 

• Payment of the debts of the transferor 
• The provision of portions of children 
• Remoter issue of the transferor 
• For the preservation or maintenance of the property transferred

Section 95 of In Karnataka Land Revenue Act, provides that,  agricultural land cannot be used for non-agricultural purpose without the permission of the Deputy Commissioner and Section 97 provides that non-agricultural land cannot be used for agricultural purpose again without permission of the Deputy Commissioner.   This is mainly to control the conversion of agricultural land and to protect agriculturists.

The Karnataka Land Reforms Act, under Section 109, allows  certain category of institutions from the restrictive provisions of owning agricultural land. Such institutions may use agricultural land for non-agricultural purpose, but cannot sale such agricultural lands permitted uses are industrial development, educational institutions, places of worship, housing projects, horticulture, floriculture and agro based industries.  These are restrictions on holding of the agricultural property a depending upon the  nature of the use.

The Karnataka Town and country planning Act, 1961 Sec 14 (1) provides that “On and from the date on which a declaration of intention  to prepare an outline is published  under Sub-Section (1) of Sec – 10  every land use, change in land use and every development in the area covered by the plan shall conform to the provisions of this act the outline Development plan and the regulations as finally approved by the State Government under subsection (3) of section 13.  Sec 14 (2)  provides that such change in land use or development as is referred to in sub-sec(1) shall be made except with the written permission of the planning Authority which shall be contained in a commencement certificate granted by the planning authority in the form prescribed u/s 15(1)  Sec 15(4)  says that if any person does any work on, or makes any use of any property in contravention of Sec 14(1), the planning authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use, and may after making an inquiry remove or pull down any such work and restore the land to its original condition or as the case  may be take any measure to stop such use.   Also Sec 300 of the Karnataka Municipal Corporations Act, 1976 provides that the construction or reconstruction of a building shall not be begun unless and until the commissioner has granted permission for the execution of the work,  Sec 304 provides that the commissioner shall not permit the construction of any building of public entertainment or any addition thereto, if such building is :

Within a radius of 200 meters from any residential institution attached to a recognized educational institution such as, a college or High school or Girls School or Public Hospital with a large indoor patient ward or an orphanage containing one hundred or more inmates

Situated in any thickly populated residential area which is either exclusively residential or reserved or used generally for residential as distinguished from business purposes  

Located in any area reserved for residential purposes by any housing or planning scheme or otherwise under any enactment.

The planning authorities and Local bodies also impose restrictions on construction, use of the land mostly to ensure orderly constructions with natural light and air and also to provide peaceful and proper ambience and atmosphere to educational institutions, hospitals.


Posted by at No comments:

Saturday, 11 April 2015

VIOLATION OF BUILDING BY-LAWS




Bangalore is one of the fastest growing cities of India.  The reasons for such a fast growth could be attributable mainly to the development of I.T. hub, pleasant climatic conditions and better educational and employment opportunities. Because of high influx of people to the city, there is a great demand for house and house sites in Bangalore.  This, in turn, has lead to the steep rise in the property values here. 

Building bylaws are introduced to regulate construction activities, to prevent construction of buildings in a haphazard manner and to provide better civic amenities. Zoning regulations are also introduced with the same motive and to regulate the land use, control of density of population and to develop the city in an orderly way. However, these building by-laws and zonal regulations are not strictly followed by the people presumably on the ground that the restrictions imposed are nothing but hindrance in exploitation of the property to the full extent and thereby they construct their buildings at their will.  In so doing, they do not mind to forego certain prescribed civic amenities such as having broader roads, playgrounds, parks and other civic amenities. 

Broadly, we may classify the violations into three categories viz., violation of Floor Area ratio, violation of site set back and violation of plot coverage. Violation of any one of these three violations would deprive the land owner of completion certificate.

Floor Area Ratio

Floor Area Ratio (F.A.R) is prescribed separately for intensely developed area, moderately developed area and sparsely developed area. Earlier, F.A.R. used to be high in more intensely developed central areas in view of land values and lower F.A.R. in the suburbs where land values are less. But presently it is on the reverse pattern and the policy is to fix less F.A.R. in the central area to enable decongestion and higher F.A.R in the suburbs to encourage development where the traffic and other problems are less. 

Non-adherence of sanction plan restrictions and set back

The building by-laws prescribe for certain set backs on   sides of the building to facilitate the people to have proper light, ventilation, privacy and to save them from dust and traffic noise. While framing the building by-laws, the civic authorities also keep in mind the future land requirements for broadening roads.  It is noticed that people violate building by-laws by way of additional floor construction, site set back construction, and providing stair case on the site set back area, balcony area to be converted into living rooms. 

Land use

The Zonal Regulations of the Comprehensive Development Plan of Bangalore prescribe different land uses like; residential, commercial, land for civic amenities etc., for systematic development of the locality. But, it is noticed that the residential buildings situated along the main roads and the roads nearer to commercial area are developed and utilized as commercial property. Even several industries also do crop up in these localities in gross violation of zonal regulations. Similarly, residential or commercial buildings do crop up in civic amenities sites meant for parks, play grounds, schools, green belt areas etc. 

Sanction Plan for additional constructions

If a part of the  building is constructed with deviations, the owners of such property hesitate to approach the plan sanctioning  authorities whenever they intend to put up further construction on the property  for approval of  sanction plans for the reason that deviations will be noticed during inspection by these  authorities and thereby proceed to make further construction without the sanction plan. Such people try to develop rapport with the concerned municipal authorities and put up additional constructions without sanction plan. 

The reason for violation of building by-laws and sanction plans by the people is that most of the land owners/builders want to exploit their land to an optimum extent because the residential and commercial properties do fetch high return.  Presently, in Bangalore there is a steep rise in land value, say Rs.5, 000/- per Sq.ft. on an average. 

In a large number of cases, deviations and violations take place with the active support of the officials and the local politicians. Only in rare cases when it is brought to the notice of the competent authority of deviations, action would be initiated by the concerned authorities against which action the land owners knock the doors of the courts and  in many such cases courts do grant stay.  Thereupon, the building owners do enjoy the property for long period despite violation of the by-laws since it would take long time for the court to dispose of the matter.

Remedies

Violation of by-laws, deviations of sanction plan, zonal regulations etc., cannot be allowed to be continued for long since it is an unhealthy trend. Therefore, the following suggestions may help in curbing violations of the by-laws etc. 

User friendly by laws

The building bylaws and zonal regulations of the Comprehensive Development Plan should be user friendly and acceptable to the majority of the public. Further, the bylaws should not consist of too many technical jargons but should be simple to enable the common man to understand and follow. Bylaws should be suitable to the local conditions failing which there would be violation of such laws. 

Strict enforcement

When once user friendly building bylaws with simplified procedure for sanction of building plans are introduced, there should be deterrent punishment if the property owners deliberately deviate  from the sanctioned plan or construct their buildings without the sanction of the competent authority.  It may be kept in mind that unless strict enforcement of the zonal regulations and building by-laws is carried out in letter and spirit, there is likelihood of people violating even the user friendly bylaws.

Accountability of Engineers

Construction of a building generally takes not less than a year.  During this time, frequent visit by the concerned area engineer and supervisor to find out whether the construction is according to sanction plan etc., would prevent violations of the regulations by the land owners.  Instead of this, the municipal authorities conduct raids after several years of such construction putting the people to a great hardship and embarrassment.  To avoid  such a situation, strict enforcement of visit by the concerned engineer must be introduced and if any deviations are noticed later on, the concerned engineer should be made accountable for allowing such deviations and action initiated against him for dereliction of his official duty. 

Imposition of heavy penalty for deviations 

As a onetime relief, for the existing buildings all deviations in building by-laws, plans and zonal regulations could be permitted with different slabs of penalty for such violations; The higher the violation, more the penalty. Once user friendly by-laws are introduced, there should be no leniency whatsoever and every deviation should be punished with severe penalty.  

The building bylaws need revision whenever there is change in the C.D.P. of the city. The committee constituted to prepare the bylaws should comprise of not only the experts in the field but also the different sections of the public so that the matter could get debated from different angles before arriving at a conclusion.  Thereupon, the draft bylaws should be circulated amongst the public to solicit the views and suggestions from people of different walks of life. The print and visual media can play a greater role in this regard. A team of technical officials consisting of town planners, architects, and civil engineers can be formed to educate the people on the need for adherence of the bylaws while at the same enlightening the public of the punishment for violations.  Similarly, area committees consisting of revered citizens and the representative of the resident’s welfare associations may be constituted to monitor violations.

 For More ...

Posted by at No comments:

Friday, 10 April 2015

DOCUMENTS, COMPLUSORILY REGISTERABLE

DOCUMENTS, COMPLUSORILY REGISTERABLE

http://advocateselvakumar.com/


All the documents to various transactions need not be registered with Registrar of Assurance. The transfers of Property Act, the Indian Registration Act have made the registration of certain documents compulsory, and others are optional. 

Section 54 of Transfer of Property Act 1882, stipulates that sale of immovable property value of which is one hundred rupees or more should be registered. If the value of immovable property is less than one hundred rupees, the registration of sale deed is not mandatory. But this is for academic interest only, since, the value of any immovable property will be generally more than one hundred rupees. Even the value is less than one hundred rupees; it is advisable to get the deed registered. 

Incase of lease, the Section 107 of Transfer of Property Act 1882, prescribes that, lease of immovable property "from year to year" or for a term exceeding one year or reserving a yearly rent must be done only by registration. The phrase from year to year denotes, refers to a continuous lease from year to year, that is, where the landlord have no option to terminate the lease at the end of the year without notice. 

Similarly the phrase, "reserving yearly rents" means that the lease has no definite period, but the annual rent is determined. The word means that the lease should run year after year or atleast more than a year. 
In general any lease in excess of year and above should be registered. Section 17 of Indian Registration Act 1902 deals with the documents, which require registration compulsorily. 

1. A document of gift of immovable property. The gift as everybody knows, it is given on consideration of love arid affection and no monetary consideration is involved. So any gift deed irrespective of its value needs registration. 
2.All documents non-testamentary 
a) Which create interest, right, title in immovable property the value of which is more than one hundred rupees. 

b) Which extinguishes (cancels) any right, interest title in the immovable property value of which is Rupees one hundred or more for present or future. 
c) Which declare, assign, limit or restrict the interest, title, right in immovable property, value of which is Rupees one hundred or more. 
3.All non-testamentary documents which acknowledge the receipt or payment of any consideration on account of the transactions pertaining to right, title, interest in the immovable property. 

4. All non-testamentary documents transferring or assigning any decree or order, award of a court, which affect the interest, rights and title in a immovable property the value of which is Rupees one hundred and above. 

The documents may create, extinguish, assign, declare, limit or restrict the interest, right title in the immovable property for the present or for future, but if the value of such immovable property is Rupees one hundred or more, they need to be registered, Testamentary means, relating to the WILL and non-testamentary means documentary not connected to a WILL. As you know, the WILL is a document, which deals who has to succeed to the assets, properties of the person, who writes the WILL (testator) after his death. WILL is not compulsorily registerable. 

In short all documents pertaining to a immovable property, if its value exceeds Rupees one hundred, it must be registered. 

Indian registration Act empowers the State Government to exempt the registration of any document of lease the period of which does not exceed five years and annual rent does not exceed Rupees fifty. 

The important point is what is the effect, if the document, which is compulsorily registerable, is not registered, Section 49 of Indian registration Act deals with this situation. It states clearly that such non-registered documents do not convey transfer legally valid title to the transferee and such documents are not admitted as evidence of any transaction affecting the property referred in the document. Thus, the purchaser will not get legally valid title by a unregistered sale deed. 

However, it also provides an exemption, that such unregistered documents may be received as evidence in a suit for a specific performance under specific relief act or as evidence of past performance of the contract as per Section 53A of transfer of property Act or in any other related transaction, not required to be affected by a registered instrument. It is always advisable to register any document connected with immovable property as it creates a permanent record, which are reflected in encumbrance certificates. Further such registered documents have higher value of evidence than unregistered documents.


Posted by at No comments:

Thursday, 9 April 2015

Proposed Land Acquisition Law – whether boon or bane?




Acquisition of land for public utility shall always have social, economic and political repercussions and it is not an exception now. Inspite of the fact that our country is predominantly agricultural sector based, if our country need to grow, the growth has to be from non-agricultural sector such as manufacturing and services, for which there is no alternative other than to depend on the land to provide much needed infrastructure development.

With this idea, Special Economic Zones (SEZs) were created; however, this concept did not work out effectively for obvious reasons, and there was a huge controversy over the land acquisition, resulting in several projects coming to a standstill. 

Recent studies reveal that delays in land acquisition is threatening to endanger investments in near term and may lead to create negative impact on our country’s economic growth, job opportunities and tax collection.

In order to ensure that the owner of the land under acquisition shall have a right to fair compensation and the entire process will take place in a transparent manner, the Government brought into existence the ‘Right to Fair Compensation and Transparency in Land Acquisition Bill 2013”. In this, it is said to have features like compensation for the owners to the extent of four times the market value in rural areas and twice in case of urban areas, and it provides that consent of 80% of the displaced owners is required in case of acquisition for private or public sector. Even though these features appear to be attractive for the beneficiaries, there are some other features associated with the bill, such as, no consent required in case of acquisition for PSUs, and that the Government can temporarily acquire land for three years and that there would be no provision for rehabilitation and resettlement in such cases, etc. 

No doubt this proposed Law may be much advanced and fair replacement to the existing Law, but it is all the more important to ensure that the proposed Law is properly implemented for positive results.

Therefore, one has to wait and watch over a period of time to understand whether the proposed Law will really offer what it promised and will lay the road for fast track infrastructure development or simply remain beating round the bush.  


Posted by at No comments:

Monday, 6 April 2015

LAW OF LIMITATION


http://advocateselvakumar.com/


Every person has a right to approach courts to seek justice. There are various laws enacted by the central and State governments regulating the rights of citizens and procedure of juridical proceedings. Law of limitation is a restrictive law, where the rights of the persons to approach courts are regulated, with the time factor being important.  A person has to approach the court within certain prescribed period if not his right to seek Justice through courts is lost. Law of limitation is both adjective and substantive law. Though superficially law of limitation seems to curtail the rights of the citizen, it is actually     proactive, forcing to approach the court within the limitation period. One may imagine the situation in the country in the absence of limitation law, as even now there is backlog of cases in all the courts. 

CONTENTS:

The law of limitation which was enacted in 1908 had certain inherent defects and shortcomings, which were exposed by various judicial verdicts. The act was revised simplified, came into force from 1st January 1964. The act contains 32 sections and 137 articles; whereas the act of 1908 had 30 sections and 183 articles. The   sections deal with the general principles applicable to the extension of time, whether by reason of disability, acknowledgement and part payment. The sections are divided into five parts; part 1 is preliminary, part II deals with limitation of suits, appeals and  applications, part III deals with computation of period of limitation, part IV deals with acquisition of ownership by possessions and part V deals with saving provisions. Out of 183 articles, articles from 1 to 149 deals with suits, articles 150-157 deal with appeals, articles 158 to 183 relate to applications. The revised Act has some salient changes; the most important being the maximum period of limitation is 30 years, which is available to three kinds of suits.

1. Suits by mortgagors for the redemption of recovery of possession of immovable property.

2. Suits by mortgagee for foreclosure

3. Suits by or on behalf of Central government or State government including state of Jammu and Kashmir.

The old Limitation Act has prescribed 60 years as limitation period to suits to redeem or recovery possession of immovable property mortgaged.

The second longest period of limitation is 12 years, prescribed for various kinds of suits relating to immovable property trusts and endowments. The limitation period for contracts, accounts, and declaratory suits, suits relating to decrees, instruments and suits relating to movable property is three years. The limitation period varying from one to three years is prescribed for suits relating to torts and miscellaneous suits and also in respect of suits for which no specific period of limitation is provided in the schedule to the Act.  A minimum limitation period of 10 days is prescribed for applications for leave to appear and contest a suit under summary procedure from the date of summons. 


We shall discuss some important sections. Importantly, the Limitation Act considers all the instruments be made with reference to Gregorian calendar, where the years are computed from the date of the birth of Christ which is widely used. The present year is 2004 according to Gregorian calendar.

Another Important provision is legal disability. The person who is   entitled to file a suit may be suffering from legal disability at the time from which the limitation period starts, such as minority, insanity etc.  In case of such persons, the limitation period starts after the legal disability is cured. In case of the legal disability continues until the death, his legal heirs may institute the suit, within the same limitation period after the death. In case the person under legal disability dies after the disability is cured but within the limitation period allowed, his legal representative may institute the suit within the same period, after the death as otherwise would have been available to the   person had he not died. To be clearer we shall study an illustration.  Mr. A has lent some amount to B on the security of demand promote.  The limitation period is three from the date of promote. But Mr. A was suffering some legal disability during the period of three years and recovers in the fourth year. The limitation period of three years starts from the fourth year. But A neither will nor institute any suit and dies at the end of fifth year. Mr. A had a balance period of limitation of one year.  So his legal representative may institute a suit within one year after the death of A.

EXPIRY OF PRESCRIBED PERIOD WHEN COURTS CLOSED:

The limitation period may expire on a day, when the court is closed. In such cases the suit may be filed on the date when court re-opens. Thus the Court holidays are excluded while computing the limitation period. 


If a person could satisfy the court, that he had sufficient reasons for not preferring an appeal during the limitation period, the court may admit the appeal, even after the expiry of limitation period.

Any suit, appeal application made after the prescribed period is liable to be dismissed except where specific provisions are made. The dates of instituting suits, preferring appeals or making applications will be considered as follows.
A suit is said to be instituted when the plaint is presented to the proper officer.
In case of a pauper when his application for leave to sue as pauper is made.
In case of a claim against a company, this is being wound up by the court, when the claimant sends his claim to the official liquidator.

For More:


Posted by at No comments:

Sunday, 5 April 2015

DEED OF COVENANT FOR PRODUCTION OF TITLE DEEDS


http://advocateselvakumar.com/

The transfer of immovable property by way of sales, gift, will, releases etc. presupposes that documents to the title of transferred immovable property are delivered to the transferee on completion of process. This is a statutory obligation. Section 55(3) of the Transfer of Property Act, casts this responsibility on the seller. But the section has a proviso that, in case where only a part of the property is sold and the seller retains a part of the property the seller is entitled to retain the original documents and copies of such documents are delivered to the purchaser.

In case, where the property is transferred to different persons, in different lots, the transferee of greatest portion is entitled to hold the documents of title and others are provided with copies of such documents.

In the circumstances dealt above, the persons holding the documents, either the seller or one who holds the greatest portion, has some responsibilities. He has to keep the documents in safe custody and in good condition. He has to make available the documents for inspection to other buyers and furnish the true copies of such documents and also extracts from such documents, whenever required. But, the cost has to be met by the buyer who needs such inspection copies or extracts. Those responsibilities are required to be recorded properly.

The document which records such obligations of safe keeping the documents, producing them for inspection, providing copies, extracts is called “Deed of covenant for production of documents”.

The deed of transfer like sale, gift, will and release may contain such a covenant by the vendor in favour of purchaser or a separate deed may also be executed by the vendor in favour of purchaser.

In case of the person holding greatest portion, a separate covenant deed stating his obligations becomes necessary. A separate deed in favour of each of other transferee of other portions or a common deed in favour of all other transferees jointly may be executed.

In the deed of transfer of the greatest portion or of highest value an explicit covenant, the transferee should safely keep the documents in good condition, produce for inspection to other transferee and furnish true copies or extract. Similarly relevant covenant should also be incorporated in deed of transfer of other transferees.

Generally all the portions of the property are not transferred at the same time and the above suggested procedure may not be possible. In such cases, the transferor should give a covenant of production of documents in each of the deeds of transfer and it should further provide that if and when the transferor hands over the documents to any other transferee at a later date he would procure a similar condition from the transferee. Under a covenant of production of document, the original covenantor remains liable indefinitely unless a condition provides that he is no more responsible after he parts with the remaining portion of the property.

Stamp duty: In case the condition is included in the deed transfer itself, no separate stamp duty is payable. If a separate deed is executed, it attracts the stamp duty as that of an agreement depending upon the stamp duty prescribed by the state.

Registration: This deed of covenant does not require the registration but it is advisable to get it registered.

For More:


Posted by at No comments:
Subscribe to: Posts (Atom)