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 upto 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 mortgagor 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 period.
Origin
or 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.
Flow
of 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 scrutinised 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.
Present
status / 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.
Joint
family properties / Hindu undivided family
The
properties of joint hindu family requires extra care. Though the Kartha 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.
Properties
allotted/ 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.
TRANSACTIONS NOT REFLECTED
TO IN AN ENCUMBRANCE CERTIFICATE
The following transactions and matters
mentioned below will not appear in an encumbrance certificate furnished either
in Form 15 or Form 16 by the Sub-registrar exercising relevant jurisdiction.
1. Oral Tenancy.
2. Litigation in Courts
(Lispendens).
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 co-operative
societies, Companies etc.
10.Unregistered agreements,
M.O.U’s, 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.
THE DOCUMENTS LISTED BELOW
ARE REQUIRED IN GENERAL FOR LEGAL SCRUTINY REPORT
(A) B.D.A PROPERTY:
1. Amount paid receipt issued
towards the payment of value of site by B.D.A. to the allottee.
3. Lease cum sale agreement.
4. Possession certificate
5. Absolute sale deed
6.Khatha Certificate
7. Latest tax paid receipt
8. E.C. from date of
allotment till date
9. Khatha extract
10. Building
Plan (if any)
(B) CONVERTED LANDS:
2. Conversion Order
3. Zonal regulation map
4. RTC from 1967 till date
5. Relevant mutation records.
6. I.L. & R.R. records
7. Nil tenancy certificate
8. Nil acquisition certificate
from the competent authority.
9.Endorsement from Tahsildar
confirming that there is no case pending under sec.79(a) and (b) of KLR Act.
10.Village
map/Survey map/Tipny/ Akar Bandh/Atlas
11.If
the sites are formed, approved layout plan to be obtained and sketch fixing the sites on the survey map to
be obtained.
12.If
the converted land falls within the purview of C.M.C. OR B.M.P., betterment
charges to be paid
13.Khatha
from the concerned authority to be obtained.
14.Latest
tax paid receipt.
15.E.C.
for the relevant period till date.
(C)B.M.P. LANDS:
1. Mother deed to trace the
origin of property / All other relevant conveyance deeds.
2. Betterment charges paid
receipt (if applicable)
3. Khatha certificate
4. Khatha extract
6. Latest tax paid receipt.
7. E.C. for the relevant
period till date
8. If it is basically a
converted land, the documented listed in (c) above are required.
9. City Survey records;
a.
P.T. sheet
b.
Field book register
c.
P.R. Card
d.
City survey enquiry report
FLATS:
1.Mother deed to trace the
origin of property / All other relevant conveyance deeds.
2.Betterment charges paid
receipt (if applicable)
3.Khatha certificate
4.Khatha extract
5.Sanctioned Building Plan
from competent authority.
7.E.C. for the relevant
period till date
8.If it is basically a
converted land, the documents listed in (c) above are required.
9.Commencement and occupancy
certificates.
Other than tracing the title of the property, if the property is held by
a Company, Partnership firm or Trust, the following documents are required:
COMPANY:
1.Memorandum & Articles
of Association of the company.
2.Incorporation certificate.
3Resolution passed by the
company for sale / purchase of property.
PARTNERSHIP FIRM
1Partnership Deed of the
firm.
3.Acknowledgement of
registration of firm.
TRUST
1.Regd. Trust deed
2.Resolution / Authorization
letter among trustees authorising members for
sale and purchase of property.
For more details,
