Commencement Certificate

Commencement certificate is a certificate and an official document issued by the local Town planning or Municipal Authorities to allow or permit the builder to begin construction or work, once all norms, licenses, permissions and consents have been obtained from the concerned or appropriate statutory authorities. Unless the commencement certificate is granted or issued, the builder cannot start or begin the construction, if he does begin or start the construction, without obtaining the Commencement Certificate, the construction may be termed as illegal.

INTESTATE SUCCESSION-WOMEN`S PROPERTY-RECOMMENDATIONS OF LAW COMMISSION-A REVOLUTION

In the present scenario when amendments are made to the effect that women have been entitled to inherit property from her parental side as well as from husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, Section 15 should be amended so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in clause ‘a’ of Section 15, the property should devolve on her husband’s heirs and also on the heirs of her paternal side.

If this amendment is brought about, the effect will be as under:

A married Hindu female dies intestate leaving self acquired property at the time of her death; the only surviving relatives are her mother in law (L) and her mother (M).

Pre Amendment 

As per the present law, her property would
devolve entirely on ‘L’ and ‘M’ will not get anything from her property.

Post Amendment

By proposed amendment, her mother-in-law and mother should equally inherit to her self acquired property.

A married Hindu female dies intestate leaving self acquired property and she has no heirs as per clause ‘a’ of the Schedule, the only surviving relatives are her husband’s brother and sister (BL&SL) and her own brother and sister (B&S).

As per the present law,

 Her property would normally devolve upon ‘BL’ and ‘SL’. ‘B’ and ‘S’ do not inherit anything from her in this property.

By the proposed amendment,

her own brother and sister should equally
inherit along with her brother-in-law and

sister-in-law.

PROPOSED AMENDMENT

7.1 In Section 15 of Hindu Succession Act, 1956, 15 (2) (c) be added.

“(c) if a female Hindu leaves any self acquired property, in the absence of husband and any son or daughter of the deceased (including the children of any pre-deceased son or daughter), the said property would devolve not upon heirs as mentioned in sub Section (1) in the chronology, but the heirs in category (b)+(c) would inherit simultaneously. If she has no heirs in category (c), then heirs in category (b) + (d) Would inherit simultaneously.”

7.2 Thus, Section 15 along with the proposed amendment will be as under:

15. General rules of succession in the case of female

Hindus –

 (1) The property of a female Hindu dying intestate shall devolve according to the rule set out in Section 16, -

(a) Firstly, upon the sons and the daughters (including the children of any pre-deceased son or daughter) and also the husband;

(b) Secondly, upon the heirs of the husband;

(c) Thirdly, upon the mother and the father;

(d) Fourthly, upon the heirs of the father; and

(e) Lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1) :

(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the

children of any pre-deceased son or daughter) and not upon the other heirs referred to in sub-section

(1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but

upon the heirs of the husband; and

(c) if a female Hindu leaves any self acquired property, in the absence of husband and any son or daughter of the deceased (including the children of any predeceased son or daughter), the said property would devolve not upon heirs as mentioned in sub Section

(1) in the chronology, but the heirs in category (b)+ (c) would inherit simultaneously and if she has no heirs in category (c), then heirs in category (b)+(d) would inherit simultaneously and so on.

7.3 It is recommended accordingly.

WOMEN SHARE IN THE ANCESTRAL PROPERTY FROM 2005

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005. NO. 39 OF 2005 [5th September, 2005.] An Act further to amend the Hindu Succession Act, 1956. BE it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows:-

This Act may be called the Hindu Succession (Amendment) Act, 2005.

1. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint

2. Amendment of section 4.-In section 4 of the Hindu Succession Act, 1956 (30 of 1956) (hereinafter referred to as the principal Act), sub-section (2) shall be omitted.

Substitution of new section for section 6 namely:- '6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.'.

PURCHASE OF PROPERTY AND CAPITAL GAINS

THE PURCHASE OF PROPERTIES, WHERE THE CONSIDERATION(PRICE) IS LESSER THAN THE GUIDANCE VALUE OR THE RATE FIXED BY THE DG REGISTRATION, AS DECLARED BY THE BUYER, ATTRACTS THE CAPITAL GAINS TAX AND WOULD BE TAXED ACCORDINGLY AS PER SECTION 50C OF THE FINANCE ACT.

THE PURCHASE OR TRANSFER, EITHER THROUGH  A REGISTERED SALE DEED OR THROUGH A GPA,  THE PURCHASER MUST QUOTE AND PAY THE CONSIDERATION PRICE AT THE PRICE/VALUE FIXED BY THE VALUATION COMMITTEE, OF DEPARTMENT OF STAMPS AND REGISTRATION,WHICH HAD BEEN PUBLISHED IN THE GAZETTE, AND IS QUOTED AS GUIDANCE VALUE.  THUS IT IS VERY CLEAR THAT IN VIEW OF SECTION 50 C, ALL THE BUYERS AND SELLERS, WHILE CALCULATING THE CAPITAL GAINS PAYABLE ON THE STAMP DUTY VALUATION.

THUS THE IMPACT WOULD BE THAT THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITY WOULD BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION RECEIVED, AS A RESULT OF TRANSFER OF PROPERTY.


ALL THE SELLERS WHO MAY BE COMING WITHING THE  AMBIT OF THIS ACT SHOULD CAREFULLY PLAN AND PAY ADVANCE TAX. FAILURE WILL INVITE PENAL PROCEEDINGS AND 24% PER ANNUM.  THE ACT IS IN FORCE FROM THE FINANCIAL YEAR 2003-2004.  ALL THE ASSESSES AND BUYERS OF PROPERTIES, SHOULD SUBMIT THE TAX RETURNS, TAKING INTO ACCOUNT THE PROVISIONS OF THE SAID ACT.


FOR EXAMPLE:  

THE PURCHASE OF A PROPERTY OR TRANSFER OF PROPERTY IS NEGOTIATED FOR xxxxx CONSIDERATION.  THE GUIDANCE VALUE FIXED BY THE VALUATION AUTHORITY OF DEPARTMENT OF STAMPS AND REGISTRATION IS yyyy, THOUGH THE ACTUAL CONSIDERATION PAID IS xxxx BUT UNDER THE PROVISIONS OF SECTION 50 C OF THE FINANCE ACT OF 2002, THE CAPITAL GAINS TAX WILL BE CALCULATED ON THE yyyy AND WILL BE TAXED ACCORDINGLY.

ORAL PARTITION AND FAMILY ARRANGMENT

 ORAL PARTITION AND FAMILY ARRANGEMENT IS  INCLUDED IN FAMILY PARTITION 

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property. The Act was amended by Act 39 of 2005 and a new section 6 was substituted. Sub-section (5) of section 6 and the Explanation thereto read thus:

The Explanation defines “partition” as any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of court. This definition of “partition” does not include oral partition and family arrangement.

Since the amended Act has failed to include oral partition and family arrangement within the definition of “partition”, which are common and legally accepted modes of division of property under the Hindu Law, the Commission undertook this subject suo motu.

1.1 The Hindu Succession Act, 1956 (30 of 1956) is a part of the Hindu Code which also includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956. These Acts brought about revolutionary changes in the law relating to Hindus. It codified the law relating to marriage, succession, adoption, etc.

1.2 The Hindu Succession Act made a revolutionary change in the law relating to succession, especially for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding succession of her husband’s property as also of her father’s property. The Hindu Succession Act

was amended in 2005 by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) to provide that the daughter of a coparcener in a joint Hindu family governed by the Mitakshara Law shall by birth become a coparcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

1.3 Section 6 of Hindu Succession Act deals with devolution of interest in coparcenary property. Section 6, before its substitution by Act 39 of 2005, read as under:

2. JUDICIAL VIEW

2.1 The Supreme Court of India in its judgment dated 21.01.1976 in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 (3) SCC 119, while dealing with a memorandum of family arrangement through family settlement, held that the family arrangements are governed by a special equity peculiar to themselves and that the family arrangement may have been oral in which case no

registration is necessary and that the registration would be necessary only if the terms of the family arrangement are reduced into writing.

2.2 The Supreme Court has observed: -

“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.  “The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family therefore has to be construed widely. It is not confined only to people having legal title to the property.

“Courts lean in favour of family arrangements. Technical or trivial grounds are overlooked. Rule of estoppel is pressed into service to prevent unsettling of a settled dispute.

“Family arrangement may be even oral in which case no registration

is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between the document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable. “So a document which was no more than a memorandum of what had been agreed to did not require registration.

 “Hence a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the court for its information for mutation of names is not compulsorily registrable and therefore can be used in evidence of the family arrangement and is final and is binding on the parties.

“Even if a family arrangement which required registration was not

registered it would operate as a complete estoppel against the parties who have taken advantage of the family arrangement. “Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

2.4 Thus, it would appear from a review of the decisions (supra), that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties, the matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.

3. RECOMMENDATION by the LAW COMMISSION.

3.1 Oral partition or family arrangement is an extremely valuable power whereby the peace, happiness and welfare of a family are secured and litigation is avoided. It is specifically helpful in the case of illiterate members of a family or who have no means to bear expenditure of legal process/advice etc.

3.2 By the 2005 amendment in the Hindu Succession Act, oral partition and family arrangement which had been effected prior to the enactment would be set at naught. Hence, the Commission proposes a suitable amendment in the Explanation to section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”.

UN AUTHORISED STRUCTURES BUYER`S CANNOT MOVE COURT OR CONSUMER FORUM-COIMBATORE.

In a step that seeks to discourage people from buying houses or other buildings unauthorisedly constructed without plan approval/violations/deviations by local bodies, the Coimbatore District Consumer Disputes Redressal Forum is turning away petitions seeking compensation for deficiency in service on the part of builders of such structures.

In fact, the buyers of flats or houses constructed without an approved plan stand to lose, as the consumer forum will not even entertain the petition.

In which case, the buyer will not be able to get any compensation from the builder/seller for deficiency in service.

Already, the Government has ordered a halt to registering sites in unapproved layouts and there are curbs in providing electricity connections.

Now, the consumer forum (commonly known as consumer court) has added a new dimension to the efforts to curb the menace of unauthorised constructions.

Forum President S.A. Sree Ramulu says the building plan forms the basis for accepting or turning away the petition. “If the petitioner says there is no approved plan for the building, we do not entertain the petition. The forum cannot take up the case of anything illegal or unauthorised. A building without an approved plan is unauthorised.”

Mr. Sree Ramulu says if the forum accepts such a petition and hears it, this will only amount to legitimising an unauthorised activity. “If there is damage to an illegal consignment of arms, can anyone sue the transport company for compensation?”

Delhi High Court Order and RBI compliance and Directives

Delhi High Court Order and the RBI Directions.

RBI/ 2009-10/75
DBOD. No.DIR. (HSG). BC.08 /08.12.01/2009-10 July 1, 2009
09 Aashada , 1931 (Saka)
All Scheduled Commercial Banks
(excluding RRBs)
Dear Sir,
Master Circular on
HOUSING FINANCE.

Clause 12 clearly directs and specifies that OCCUPANCY CERTIFICATE must be obtained from the concerned authorities. Otherwise, the home loans sanctioned MUST BE RECALLED WITH CHARGES.

12. DELHI HIGH COURT ORDER ON UNAUTHORISED CONSTRUCTION
The Monitoring Committee constituted by the Hon’ble High Court of Delhi regarding Unauthorised Construction, Misuse of Properties and Encroachment on Public Land, has issued the following directions for immediate compliance by the banks/ Financial Institutions.
A. Housing Loan for building construction
i) In cases where the applicant owns a plot/land and approaches the banks/FIs for a credit facility to construct a house, a copy of the sanctioned plan by competent authority in the name of a person applying for such credit facility must be obtained by the Banks/FIs before sanctioning the home loan.
ii) An affidavit-cum-undertaking must be obtained from the person applying for such credit facility that he shall not violate the sanctioned plan, construction shall be strictly as per the sanctioned plan and it shall be the sole responsibility of the executant to obtain completion certificate within 3 months of completion of construction, failing which the bank shall have the power and the authority to recall the entire loan with interest, costs and other usual bank charges.
iii) An Architect appointed by the bank must also certify at various stages of construction of building that the construction of the building is strictly as per sanctioned plan and shall also certify at a particular point of time that the completion certificate of the building issued by the competent authority has been obtained.
B. Housing Loan for purchase of constructed property/ built up property
i) In cases where the applicant approaches the bank/FIs for a credit facility to purchase the built up house/flat, it should be mandatory for him to declare by way of an affidavit-cum-undertaking that the built up property has been constructed as per the sanctioned plan and/or building bye-laws and as far as possible has a completion certificate also.
ii) An Architect appointed by the bank must also certify before disbursement of the loan that the built up property is strictly as per sanctioned plan and/or building bye-laws.
13
DBOD-MC on Housing Finance-2009
C. Unauthorised colonies
No loan should be given in respect of those properties which fall in the category of unauthorized colonies unless and until they have been regularized and development and other charges paid.
D. Commercial Property
No loan should also be given in respect of properties meant for residential use but which the applicant intends to use for commercial purposes and declares so while applying for loan.

The banks have already initiated action in this regard and have given sufficient time to the borrowers to produce the statutory certificates, failure to do so, will invite, RECALL notices.

REGULARISATION BEGINS

The Government of Karnataka has finally penned down the AKRAMA-SAKRAMA Scheme. 50% of the violations and deviation in the residential construction will be regularised in A and B zone and the commercial structures will be regularised by 25% respectively. The penalty is based on the guidance value. The cut off date might be 30-06-2007 or 31-12-2007, 30-06-2008 or 31-12-2008. It has not been clear regarding the cut off date. More than 50% residential and 25% commercial structures will be demolished. This is one time opportunity for violators. Even the Ordinance, if promulgated, has to undergo Judicial scrutiny, as there some PIL is still pending in the Honourable High Court Of karnataka. Main beneficiaries are builders and developers and all those, who have already bought apartments, which have blatantly violated sanctioned building plans and building by-laws. Most of the apartments in Bangalore, does not have COMMENCEMENT CERTIFICATE, which is mandatory and COMPLETION/ OCCUPANCY CERTIFICATE. The Honourable High Court of Karnataka has directed BESCOM AND BWSSB not to provide services, for the buildings, which have violated the sanctioned plans and by laws. The KATHA issued by the local municipal authorities stands automatically canceled and Katha certificate will not convey any right, interest and titles. It is an account with the local municipal administration. Even payment of property taxes, will not in any manner, make the titles clear and marketable, when the by laws are violated. IGNORANCE OF LAW IS NO EXCUSE.

RBI circular to Banks to disclose the Mortgage to the PUBLIC by the Developers and Builders.

The RBI in its Master circular, has directed all the associate banks to disclose the Mortgage clause to public about the property and the builders. This will enable the buyers to know, whether the property is free from all encumbrances, liens and charges.

List of documents required for the enquiry

PLAY IT SAFE

While buying a house, ensure all documents are in order.

Transactions in immovable property are carried out by parties in properties containing the following elements:

Original owner.

Intermediary owners.

Promoter.

Developer.

Contractor.

Investor.

Marketing agency.

Prospective buyer.

Lending institutions.

Association of Owners.

The following are the nature of properties:

Land.

Houses.

Flats/apartments.

Infrastructure.

Special amenities and facilities.

The following are the nature of rights:

Ownership.

Possession.

Leasehold rights.

Rights under a mortgage.

Easement.

Licence.

Lien.

There are two types of inheritance and succession:

Intestate succession i.e. by operation of personal laws.

Testamentary succession i.e. through wills.

Titles

Three-tier legal scrutiny of titles is essential:

In the hands of the present owner.

In the hands of the prospective buyer for his benefits.

For the benefit of the lending institutions.

Issuing public notice in leading English and vernacular newspapers, inviting objections or claims, is recommended in all cases.

Properties attract the following taxation:

1) Service Tax (on services in contracts).

2) VAT (on transfer of goods in contracts).

3) Income tax on income and capital gains.

4) Tax exemptions and deductions under special schemes for housing, economic zones etc.

The following are various modes by means of which any person can acquire any type of right, title and interest in an immovable property:

1. Direct purchase/transfer.

2. Gift/settlement.

3. Will/probate/succession certificate.

4. Intestate succession and inheritance.

5. Partition, release, family settlement, reunion.

6Family arrangement.

7. Partition among co-owners.

8. Property as a capital contribution in a firm.

9. Distribution of assets in a firm on reconstitution and on the dissolution of a firm. 10. Private trust.

11. Amalgamation, merger, de-merger and liquidation of companies.

12. Rights and interests held through shares in companies, cooperative society etc.

13. Adverse possession.

14. Awards in arbitration proceedings.

15. Orders and decrees of courts of law and other statutory authorities

including Lok Adalats.

16. By operation of various provisions of personal laws relating to Hindus, Mohammedans, Christians, Sikhs, Parsis, Jews etc.

17. By operation of law under laws relating to other persons and legal entities including cooperative societies, other societies including mutual benefit societies and other Association of Persons.

18. BDA sites.

19. Land acquisition.

20. Urban Land (Ceiling and Regulation) Act, 1976 (now repealed).

21.By grants given or orders passed by Governments and statutory authorities.

22. By a Conciliation Order passed under section 19(v) (i) and (ii) read with Section 21 of the Legal Services Authority Act, 1977. Such an order can be passed by a High Court Judge and other competent authorities by which rights and interests between contending parties can be settled and established.

Let us look into tracing, investigation, verification and certification of titles.

Tracing of titles

The tracing of titles should begin with the tracing of the earliest documents available pertaining to the property which, in all probability, will pertain to the documents obtained by the first owner.

First owner: The earliest original documents, records, order of a court or government or a statutory authority by which the rights to a particular immovable property is vested with the first owner.

Intermediary parties: The subsequent documents, records or orders of the type mentioned above, duly recording in a chronological unbroken sequence of legal acts, events, identifying and tracing the title in the hands of the various intermediate owners till the last owner i.e., the transferor.

Current owner: The documents of title with the current owner i.e., transferor, including the document by means of which he has acquired title and other documents like the Khatha, Encumbrance Certificate and tax paid receipts up-to-date.

An investigation of these records must be made before a certification of these records by an advocate. Investigation is the verification of the actual existence of these records in the books/registers of the various departments mentioned above. Certification, on the other hand, is done only on the basis of records produced before an advocate on an apparent examination of the same by him.

Encumbrance Certificate

Various kinds of transactions and matters mentioned below will not be entered in Book-I maintained by Sub-Registrars and hence will not appear in an encumbrance certificate furnished either in Form 15 or in Form 16 by the Sub-Registrar exercising relevant jurisdiction. Hence, other modes of evidence and documentation are required to confirm the title. The following are the transactions and matters not included in the encumbrance certificate:

1. Oral tenancy.

2. Litigation in courts (Lispendens).

3. Tax liabilities

4. Unregistered mortgage by deposit of title deeds.

5. Prior unregistered agreements.

6.Oral Partition/Family Arrangement.

7. Oral gift under Mohammedan Law.

8. Unregistered will.

9. Rights and interests held through partnership firms, Association of Persons, societies including cooperative societies, companies etc.

10. Unregistered agreements, MOUs, general power of attorney etc.

11. Rights of third parties not directly recorded in documents.

12. Orders and decrees of courts, statutory and tax authorities.

13. Rights through possession, part performance, equitable title under Section 53-A of the Transfer of Property Act, 1882.

Safeguards

Many safeguards have to be taken to ensure the vesting of a clear, absolute and marketable title in the hands of the purchaser or any person acquiring any interest in the property in question in any manner whatsoever. Some of the safeguards are mentioned below:

1. Obtain court permission for sale of minor's share.

2. Make all major co-parceners parties in case of Hindu Undivided Family.

3. Ensure compliance of legal formalities by companies, other persons and legal entities.

4. Examine Government records, documents and papers.

5. Verify original documents of title and lodge the same with a common custodian in Escrow.

6. Issue public notice through newspapers.

7. Verify marketability of title.

8. Make all other interested parties as parties in the transaction.

9. Obtain confirmations and affirmations through affidavits.

10. Obtain possession in part performance.

11. Appropriate court action for injunctions, specific performance etc.,

12. Resolve disputes through arbitration or through family arrangement.

13. Avail the benefit of other legal remedies and reliefs as provided under different transactions, different laws applicable.

14. Obtain general power of attorney to derive powers and authority to carry out all acts in general and certain specified acts, deeds and things in relation to the immovable properties and the rights, interests and title relating thereto.

15. Register agreements and get attestation by Notary Public on documents.

16. Obtain Encumbrance Certificates, tax paid receipts and certified copies of other papers and records held by statutory authorities.

17. Verify if there are any restrictions relating to land granted including restrictions in respect of land of Scheduled Castes and Scheduled Tribes.

18. Protect the rights or possession under section 145 of the Criminal Procedure Code from statutory authorities.

* * *

Vital documents for acquiring BMP, BDA property

The following are the documents of title with respect to properties located within the jurisdiction of the Bangalore Mahanagara Palike which are to be obtained from the present owners and verified before purchase/acquisition by lease, mortgage:

Primary documents

1) Parent Deed by means of which the present owner/owners acquired title to the property.

2) Building sanction plan issued by the Chief Executive Engineer, Bangalore Mahanagara Palike, in case of a building constructed on the property.

Secondary documents

1) Khatha Certificate issued by the Bangalore Mahanagara Palike in the name of the present owner/owners.

2) Khatha Extract issued by the B MP.

3) Tax paid receipts issued by the BMP evidencing payment of taxes in respect of the property.

4) P.T. Sheet and Chalta issued by the City Survey Department containing the sketch of the property in question and its measurements.

5) Encumbrance Certificate (preferably in Form 15) issued by the Sub-Registrar exercising relevant jurisdiction over the property for a period of not less than 30 years.

6) Copy of the plan sanction issued by the BMP for the construction of a house or residential or commercial multi-storeyed building.

7) Copy of the Commencement Certificate of the BMP issuing permission to commence construction of a multi-storeyed building.

8) Copy of the occupancy certificate issued by the Palike certifying that the building constructed on the schedule property is in accordance with the sanctioned plan.

9) Copy of the receipt evidencing payment of compounding fees to the Bangalore Mahanagara Palike for regularising the deviation, if any, made from the building sanction plan.

10) Copy of the No Objection Certificate from the Fire Services Department.

11) Copy of the clearance to operate lifts in the building issued by the Chief Executive Engineer, BMP.

12) Copy of the Clearance Certificate issued by the Pollution Control Board.

13) Copy of the Endorsement issued by the Director, Fire Services Department, by means of letter addressed by him to the Bangalore Mahanagara Palike stating that he has no objection to the BMP issuing an occupancy certificate in respect of building constructed on the property.

14) No Objection Certificate from the Airport Authority of India.

The documents mentioned in (6), (7), (8), (9), (10), (11), (12), (13) and (14) usually arise in the case of multi-storeyed buildings and large layouts.

BDA jurisdiction

The following are the documents of title with respect to properties allotted and/or sold by the Bangalore Development Authority to the present owner/owners which need to be obtained by every prospective purchaser:

Primary documents

Allotment letter issued by the Bangalore Development Authority in favour of the present owner in respect of the property.

Possession letter issued by the Bangalore Development Authority in favour of the present owner in respect of the property, recording handing over of possession of the property to the present owner.

Absolute Sale Deed executed and registered in favour of the present owner by the Bangalore Development Authority in respect of the property after the expiry of 10 years from the date of allotment.

Building sanction plan issued by the Bangalore Development Authority where a building has been constructed on the property.

Secondary documents

Khatha Certificate issued by the Bangalore Development Authority in the name of the present owner/owners.

Tax paid receipts issued by the Bangalore Development Authority evidencing payment of taxes in respect of the property up-to-date.

Encumbrance Certificate (preferably in Form 15) issued by the Sub-Registrar exercising relevant jurisdiction from the date of allotment up-to- date.