Advocate Selvakumar

Best advocate to verify property legal documents in Bangalore,

FRAMINGOF LEGAL SCRUTINY REPORT

Saturday, 25 July 2015

FRAMING OF LEGAL SCRUTINY REPORT

The ownership of land has originated from time immemorial and has changed the hands through series of transactions. It is very important to trace the ownership of the person who is offering his property as security. One of the most important factors in verification of title is the period up to which the title has to be traced to avoid any disputes. Generally, the tracing has three important steps; origin, flow, and present status. Most of the advocates trace the title for a period of 13 years only. Many times, not even a single transaction might have taken place within this period. This period would only remove the possibilities of adverse possession, where a person other than real owner would have been in actual, peaceful, open, continuous and exclusive possession of immovable property for a period of twelve years or more in total denial of title to the true owner, in such situations, such occupant of the property would get title to the property by adverse possession. Apart from adverse possession, there are other situations which have to be examined to arrive at the title.

The limitation period for redemption of mortgage is 30 years as per Article 61(a) of the Limitation Act. Limitation against Government is 30 years. According to Section 90 of the Indian Evidence Act, any document executed 30 years or before is presumed to be valid, since it is beyond legal claim.

Article 61(b) of the Limitation Act prescribes limitation period of 12 years for filing suit for recovery of the possession of property who has acquired the mortgaged property from the mortgagee, without the knowledge of the mortgagor. The following example would clearly demonstrate the situation.

The limitation period for redemption of mortgage is 30 years. The mortgagee transfers the mortgaged property to another person after 29 years without the knowledge of the mortgagor. Subsequently the mortgagor comes to know of this transaction. He has right to file a suit for recovery of the mortgaged property from the purchaser and the limitation period is 12 years. The mortgage may prefer such suit within 42 years after the date of mortgage (30+12).

By examining the title and encumbrance certificates for 13 years, advocates would not be in position to trace the mortgage created earlier to 13 years, or any document executed earlier, or the claim of the Government. As such it would be preferable to trace the title for a minimum period of 42 years. This is only a minimum period and depending upon particular case tracing has to be done for more periods.

Originor First owner

The tracing should always begin with scrutiny of earliest document recorded. If such documents is not made available; the certified copies have to be obtained from registering authorities but should not be ignored. Earlier documents are called as mother or parent documents. The partition deed, gift deed, release deed, settlement deed, power of attorney are not mother documents.

Flowof the property

Subsequently, the property generally changes hands by various modes like sale, gift, partition, inheritance. Each change of the ownership has to be traced with the help of transfer document. The sequence should be in chronological order continuous and unbroken. Any missing link has to be carefully scrutinized by referring to the records at registering offices, revenue records and recitals in other documents and if possible by ascertaining from the parties concerned. Nothing should be presumed and left to chance. The flow should be up to the ownership of present owner. The right of each intermediate owner to transfer the property should be thoroughly checked.

Presentstatus / Current owner

After examining the flow of the property, the documents of title of the present owner, through which he has acquired the ownership has to be examined. This should be further supported by revenue documents like Khatha. Encumbrance certificates, tax paid receipts, Khatha extracts.

Jointfamily properties / Hindu undivided family

The property of joint Hindu family requires extra care. Though the Khatha of the family has right to alienate such properties, it should he only for legal necessities of the joint family, if not any legal heir may dispute the transaction.

Minorproperties

Any transfer of Hindu minor properties requires permission of the Competent court, and only natural guardians / or guardians appointed by the court have to represent the minor in transactions. Minor may dispute the transactions and assert his right within three years after attaining majority, if the court has not permitted such transaction.

Propertiesallotted/ granted by government / statutory bodies

The tracing of the title in respect of properties granted / allotted by government, statutory bodies like BDA, KHB may be done from the date of such grant/allotment.

Creationof equitable mortgage

Only the person having valid marketable title as certified by the legal advisor can create equitable mortgage in favor of the financial institutions. Legal scrutiny report should clearly specify the name of the persons who have to create mortgage.

Only original title deeds of the property should be accepted for mortgage copies of which are examined by the advocate. In case of partition, purchase of flats, certified copies of the partition, development agreement along with original documents like sale agreement, sale deed, and possession certificate may be accepted for mortgage. Revenue documents like khatha, tax paid receipts should also be deposited. Legal advisor should clearly indicate which are the documents that are to be accepted in original, certified copies or photocopies for deposit.

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Friday, 24 July 2015

GUARDIANS ROLE IN MINORS PROPERTIES

GUARDIANS ROLE IN MINORS PROPERTIES

Transfer of immovable property by persons domiciled in India is governed by the provisions of Transfer of Property Act, 1882. The term "Transfer of Property", as envisaged under section 5 of the Act means an act by which a living person conveys the property to one or more living persons. Living person includes a company or association or body of individuals, whether incorporated or not. However, not all living persons are competent to transfer the immovable property. Certain pre-requisites are envisaged under the statute which restricts alienation of property by a person who is not competent to enter into a contract. One such restriction is transfer of immovable property by a minor.

Hindu Minority and Guardianship Act 1956 is one such legislation which is applicable to all Hindus. It is worthwhile to deliberate who is a Hindu as per the provisions of the Act. It may be generally said that all persons other than Mohammedans, Christians and Jews are Hindus. According to the definition a person is considered as Hindu by religion in any of its forms or developments including Veerashaiva, Lingayat, followers of Brahrno Prarthana or Arya Samaj, Buddhists, Jain and Sikh.

According to Indian Majority Act, 1875, which applies to all persons domiciled in India and to all matters except marriage, divorce and adoption, every person whose property has assumed superintendence by a Court of Wards is deemed to have attained majority at the completion of 21 years and in all other cases at the completion of 18 years. Guardian means a person having care of the person of a minor or his property or both person and property.

CLASSES OF GUARDIANS

Guardians for a minor may be classified as under:

1. Natural Guardians

2. Testamentary Guardians

3. Guardians appointed by the Court

4. De facto Guardians

1. Natural Guardian

Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of the person and of the separate property of his minor son or a minor unmarried daughter and after him, the mother.The expression father and mother does not include step-father or step-mother.In case of adopted son, the guardian is the adoptive father and thereafter the adoptive mother. But in case of a child who has not completed five years of age mother is the natural guardian. The guardian of Hindu minor is entitled to takecare of minor's property except minor's share injoint family property. The Kartha is entitled to take care of a minor's share injoint family property. In case of an illegitimate boy or an illegitimate unmarried girl, the mother is the natural guardian and after her, the father. In the case of a minor married girl, the husband is the natural guardian. It may be generally questioned as to the provision for minor unmarried girl,as the marriage of a minor is an offence. A person is disqualified from acting as a natural guardian under this Act ifhe ceases to be a Hindu or has finally renounced the world by converting himself to a hermit.

Prior to the enactment of the Hindu Minority and Guardianship Act, 1956, the natural guardian had wide powers to deal with the property of his minor son or daughter whereby he could mortgage, sell, create a charge even without permission of the Court. However, this unfettered power of the natural guardian to alienate the property of his minor children has been regulated by the Hindu Minority and Guardianship Act,1956 which has been enacted keeping in view the interest and welfare of the minor children. Section5 read with Section 8(2) of the Act envisages that a Guardian cannot, without previous sanction of the court, alienate the minor's property in any manner, subject to the exception of lease not exceeding five years or not exceeding one year beyond the date when the minor attains majority. However, purchasing a property on behalf of a minor does not require court's permission.

2. Testamentary Guardian

Testamentary Guardians mean the persons appointed through Will as guardians of minor and his property. They deal with the property belonging to the minor subject to such restrictions, as are imposed in the Will. The father may appoint any other person as guardian by a Will if the mother has expired earlier. In case the father appoints a guardian by Will even if the mother is alive it is not operative as the mother succeeds him as natural guardian. Mother may also appoint a guardian by Will, who succeeds her. In case she does not appoint any guardian by Will, the guardian appointed by the father through Will succeeds as guardian after the death of the mother. A Hindu mother may appoint any other person as guardian. The guardian so appointed shall act as natural guardian of the minor subject to the restrictions imposed in the Act and the Will. In case of minor being a girl, the powers of the appointed guardian will end on the marriage of minor girl and her husband will be the guardian thereafter. Only a person who has attained majority is competent to become a guardian. No guardian can be appointed for the undivided interest in the joint family property of the minor. However, the jurisdictional High Court may appoint a guardian for the undivided interest of the minor in joint family property.

Prior to enactment of the Hindu Minority and GuardianshipAct, 1956, a testamentary guardian appointed under the Will used to enjoy wide powers. After enactment of this Act certain sweeping changes have been introduced. It recognizes the power of a Hindu father to appoint a guardian for safeguarding the property of the minor through Will. However, no testamentary guardian can be appointed by the father for any undivided interest of the minor in a joint family property. This Act gives equal right to the mother to appoint a testamentary guardian of a minor child after the death of the father and even ifhe is alive when he has been declared as disentitled to act as the natural guardian by an order of the court or has ceased to become a Hindu due to change in religion or has renounced the world permanently.Further, the aforesaid Act also empowers the widow to appoint a testamentary guardian in respect of the person and property of her minor children.

3. Guardian appointed by court

Appointment of Guardian by the Court is governed by the provisions of the Guardians and Wards Act, 1890. Section 7 of the Guardians and Wards Act, 1890 provides that where the court is satisfied that the appointment of a Guardian is necessary to safeguard the interest of the minor child, it can make an order appointing and declaring a person as Guardian of a minor of his person or property or both. No order appointing another person to be the guardian can be made by the court until the powers of the guardian already appointed or declared have ceased to be so under the provisions of this Act.

Section 17 of the Act provides that the court, at the time of appointing or declaring the guardian of a minor, should take into consideration the age, sex and religion of the minor apart from the character and capacity of proposed guardian, wishes, if any, of a deceased parent and the existing or previous relationship of the proposed guardian with the minor child or his property. Further, court can appoint a Guardian only for the separate property of the minor and not for the undivided interest in the joint family property.

A Guardian appointed by the court has no power to alienate the minor's property without the permission of the court. Alienation without such permission is voidable at the instance of the minor and the person affected by such sale. However, if alienation has been made after obtaining necessary sanction from the court, the same cannot be challenged by the minor or any other person except in case of fraud.

4. Defacto Guardian

A person who is not the adhoc guardian and does not act for a specific purpose as a guardian, but manages the affairs of the minor in the same manner as the natural guardian or guardian appointed by the court could be referred to as Defacto Guardian although in strict sense of the term there is nothing in the law to describe the de facto guardian. However, the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being a de facto guardian of such a minor has been totally abrogated and any alienation by such a guardian is void abilities and the same cannot be ratified subsequently by the minor after attaining majority. Thus, it is advisable to the intending buyers of immovable property with minor's interest to take all the necessary precautions and due care before proceeding to buy the property to avoid any future complications.

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Advocate,

Best advocate to verify property legal documents in Bangalore,

Thursday, 23 July 2015

RIGHT OF INFORMATION ACT - BOON FOR PROPERTY MATTERS

RIGHT OF INFORMATION ACT - BOON FOR PROPERTY MATTERS

After hectic deliberations, the Right of Information Act of 2005 finally got the nod in both the upper and lower house of the Parliament. The Act came into effect from 12^th of Oct 2005. With this, the law is now valid and applicable for the whole country irrespective of any state. This Act proves as a great windfall to the property industry as the building related documents which could not be procured easily from the Government departments viz. Taluk Office, Corporation Office, Sub-Registrar Office, Survey Department, Assistant Commissioner’s Office etc., can now be got, studied and verified well in advance before embarking on any project.

This Act is a blessing in disguise for the citizens of the Nation. If used properly, this may act as a weapon to bring down the corruption level to a naught. Needless to say, corruption is rampant in our country everywhere, especially, Government departments and Municipal corporations. It is a known fact that unless the officials are bribed, nothing works. Right from the lowest level to the top level officials, the bribe gets distributed and then only the work may progress without any hindrance. The citizen is greatly disturbed and distressed by these deeds but he can be just a mute spectator. But with the enactment of the Right to Information Act, there is a bright ray of hope as this Act gives power and paves the way for the honest citizen or a builder to get his files cleared if there is any undue delay.

Right of Information:

At the outset, let us understand the significant aspects of this legislation. Section 2(j) of the said Act defines the right to information.

‘Right of Information’ is the right to acquire information accessible under the Act which is held by or under the control of any public authority and includes the right to –

a) Inspection of work, documents, records

b) Taking notes, extracts or certified copies of documents or records

c) Taking certified samples of material

d) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

A very encouraging development as far as this Act is concerned that it is just not restricted to Government and Municipal Corporations but also includes public authorities viz. organizations, NGO’s and other bodies which are financed by the Government.

Practical Use

Let us throw some light on how this Act can be used in practical.

1) A person submits a plan to the BMP Office for sanction. But sanctioning process undergoes an inordinate delay due to the fact of non-bribing of the concerned officials which eventually puts the citizen into a lot of anguish. Using this Act, he can now directly meet the officer and question him on the following issues.

a) What is the status of his plan?

b) How many other plans were submitted on the day on which plans was submitted by him?

c) Out of those plans, how many have been sanctioned?

d) What has happened to all the other plans?

Further, he is now entitled to ask for the inspection of documents, records, take notes and obtain certified copies.

2) A person applies for a ration card. As usual, it gets into rough weather

as the concerned officials are not fed properly. Now with this Act, he can go and contact the concerned and ask for the reasons for the delay just like the above case. The above said are just stray cases and the said Act can be used to elicit

any type of information from any departments except a few.

Appointment of Public Information Officer

Under the Act, it is imperative now for all the administrative offices of Public Authorities to appoint a Public Information Officer. He will act as a catalyst between the citizen who wants the information and the concerned department. In normal course, the necessary information should be provided within a span of one month. There will be a nominal fee collected as a token amount. Even after one month, if the information is not provided properly or refused, the person can go one step further and appeal to the appellate authority who by default will be the senior of the said PIO in the same department.

If the Citizen wishes to appeal against the Appellate Authority itself, he should appeal to the state or Central Information Commissioner which is an independent constitutional authority.

Penalty for Delay/Refusal

If there is a delay in providing the information or deliberate refusal to part with the information, the PIO is penalized at Rs. 250/- per day until the information is provided to the person. This aspect may drive the PIO to act fast and provide all the information. It is a rule that the name of the PIO should be prominently displayed at all the offices. If it is missing or the Citizen cannot find the PIO, he can apply for information by addressing to the PIO of the head office of the concerned department.

Though the Act covers almost all the departments and enables the Citizen to get the required information, Scientific, Economic, Security and strategic information as mentioned in the sections 8 and 9 of the Act may not be disclosed or can be denied out rightly. But such a scenario may not happen as a normal citizen will not be having any business or dealings with these aspects.

The Right to Information Act is indeed a very beneficial Act for the common man and if used in a proper and optimum way, it may lead to less sleaze and more transparency. To top it all, this act may go one step further and give a complete transparency vis-à-vis property documents which was until now not very clear on various issues. With this Act, all the documents of property can be procured easily from the Government department’s viz. Taluk Office, Corporation Office, Sub-Registrar Office, Survey Department, Assistant Commissioner’s Office and the citizen can heave a sigh of relief.

Format of application to be submitted to the Public InformationOfficer

The Public Information Officer,

(Name of the office with address)

1. Full name of the applicant:

2. Address

3.Particulars of the information required:

i) Subject matter of information

ii) The Period to which the information relates

iii) Description of the information required

iv) Whether the information is required by post or in person

(The actual postal charges shall be included in additional fees)

4. Whether the applicant is below the poverty line:

(If yes, then the photocopy of the proof thereof)

Place:

Date: (Signature of the Applicant)

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Best advocate to verify property legal documents in Bangalore,

Saturday, 18 July 2015

OCCUPANCY CERTIFICATE

OCCUPANCY CERTIFICATE

Occupancy Certificate is a very important document. It evidences the completion of the building as per the approved plan and compliance of local laws. Local bodies like;City Corporations/City Municipalities issue Occupancy Certificates.Without Occupancy Certificate, it is difficult to get the water and sanitary connections. Financial Institutions also insist on Occupancy Certificate.

Problems with respect to issuance of Occupancy Certificate arise on account of violation of building Law, which are increasing day by day. Though the people have spent their hard earned money on the project with a dream of owning a house, they could not occupy the house for want of Occupancy Certificate. They have to suffer for none of their faults.

Having invested their precious money in such buildings and after waiting for many years to get Occupancy Certificate, the Purchasers are forced to occupy the flats even without power, water and sewage connections instead of losing the property.

In one of the cases, a Builder was unable to obtain the Occupancy Certificate. After a prolonged wait, he requested his Purchasers and handed over the apartments without power, water and sewage connections. He put the entire blame on the Revenue Authorities and disappeared. The Occupants had to find their own ways.

Obtaining the approval of the plans has become just a formality and a casual affair. Nobody will abide by that. It is just a document to be produced during inspection. During the boom time, a Builder constructed several houses and flats violating building rules and regulations. He deviated from the approved building plans and went on to construct apartments where he should not have constructed. The Civic Authorities refused to give Occupancy Certificate despite the best efforts of the Builder.

In the mean time, the apartment Purchasers on the assumption that things were happening to their satisfaction, performed house warming ceremonies and took possession of the flats. When they were about to move in, the Builder revealed the shocking news that even though he had constructed the apartments and houses to their liking, the Authorities were not issuing Occupancy Certificate on one pretext or the other.

AnotherBuilder constructed small flats targeting the Middle Income Group (MIG). The Authorities, however, refused to issue Occupancy Certificate because of deviation from the approved plan. In this case, the Builder got the plan approved for construction of 4 dwelling units, 2 on the ground floor and 2 on the first floor. However, he did something different in gross violation of the approved plan. Instead of constructing 4 dwelling units, he constructed 6 dwelling units. The persons, who invested in Flats, are now desperate, as they would lose their money and the flats, if the Authorities decide to demolish the structure.

It is not only the flat Owners are suffering. A few Builders, who have a heart for the investing Public, too face problems. One such Builder constructed 8 flats in accordance with the building regulations and Bylaws and approved building plan. He has completed 5 flat and 3 remains to be completed. The Builder received full payment from five Purchasers while the other three backed out. This has put the Builder in a difficult situation. For want of funds, three flats remained incomplete and Occupancy Certificate could not be obtained as the Authorities will issue Occupancy Certificate only after completion of the entire construction. The Financial Institutions refused to lend in the absence of Occupancy Certificate or No Objection Certificate from the Authorities. The net result was that not only the Builder was losing money but also the Purchasers of the flats, who have to pay interest to the Financial Institutions. The Financiers too face difficulties in getting repayment of loan installments.

The Authorities in the scheme of things must be blamed for this state of affairs. The inspecting Authorities do not carry out periodic and surprise visits at the construction site. In case of deviation, they should take the Builder to task in the beginning itself and not at the flag end of the construction. Majority of the Builders follow rules and regulations but a few do not. They disobey rules and regulations and violate them.This is a vicious circle, which only the Government can break. Government must initiate immediate remedial action to stem the rot. The Authorities should not be very rigid in granting completion of Certificates. If the Builder has deviated a little more than the allowed percentage, the Authorities may impose a penalty and regularise the building.

The Investors too are responsible for this fiasco. They do not check the antecedents of the Builder and his track record. Before taking possession, they do not check whether the building is according to the agreement. Many do not demand the Occupancy Certificate, Parent Documents, Title Deeds, Deposit receipts from the Builder.The Purchaser, who has not collected the required documents, will have to face various types of problems at a later stage.

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