PROCEDURE FOR ATTENDING AT PRIVATE RESIDENCE

(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

Karnataka Registration Rules 1965 has formulated procedure for attendance if the registering officer at Private residence.The relevant rules are detailed in chapter 10 and under Rule Nos. 56 to 32. Any application for attendance at private residence shall be in writing and has to be signed by the person who requests the attendance at his residence.Such letter may be presented by any person to the registering officer. The request has to be complied with as early as possible. If such attendance at private residence disturbs the regular routine of the office or requires closure of office and if the case does not fall under section 31 of the Indian Registration Act, a commission may be issued, which means another person other than the registering officer may be requested to attend the private residence and complete the registration formalities.The attendance of sub-registrar at private residence or issuing commission has to be reported to the registrar within 24 hours.The Sub-registrar shall not proceed out of his sub district for this purpose, but registrar may attend the private residence situated in his district though it may not be situated within the sub district under his immediate charge.

The commissioner appointed to attend the private residence will examine the witness and persons to give evidence and the registering officer will examine the commissioner personally in his office connected with discharge of his commission and voluntary nature of admission of execution.

During the course of attendance if the registering authority has to record the admission or execution of persons not exempted from personal appearance in the respect of the same document executed by a person exempted from personal appearance, the registering authority may comply with the request provided attendance fee is levied.

Government Officers

Section 88 of the Act refers to documents, which are executed by government officers or certain public functionaries who are exempted from personal appearance.

Any officer of the government, any administrator general, official trustee or official assignee, the sheriff, receiver or registrar of High Court, any holder of such other public office as notified in the official Gazette of the state government are exempted from personal appearance or through their agents at registration office in connection with registration of any instrument executed by them or any document executed in their favor in their official capacity. They are also exempted from signing the document for admitting the execution as required under section 58 of the Act.

When documents are forwarded by government officer with a covering letter stating that documents executed by him and be registered, the covering letter will be sufficient to satisfy the genuineness of the signature of the expectant. If such document is presented by a private party, who is also a party to the document, the registering authority will satisfy as to the genuineness of the signature by a brief inquiry.The fact of exemption from personal appearance and presentation of the document by covering letter will be endorsed.

Only Copies to be sent

Certain category of documents like copies of orders, certificates and instruments need not be presented for registration but may be sent to the registering office for filing as per section 89 of the Act. In following cases, the copies have to be forwarded to the Jurisdictional registering officer under whose jurisdiction the immovable property in question is situated.Every officer granting a loan under Land Improvement Loans Act 1883. Every court granting a certificate of sale of immovable property under Civil Procedure Code, 1908.

In case of loans under Land Improvement Loans Act 1883, the details of any land to be granted as collateral security. Every officer granting a loan under Agriculturists Loan Act 1884, a copy of the document whereby the immovable property is mortgaged to secure the repayment of the loan or if such property is mortgaged for the same purpose in order granting the loan, a copy of such order. Every Revenue officer, who grants a certificate of sale to the purchase of immovable property sold in public auction.The registering officer will file the copies of such orders, certificates, and instruments in book No.1. The concerned officers need not appear in person at registration office.

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ADJUDICATION OF MATTERS CONCERNING PAYMENT OF STAMP

(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

ADJUDICATION means a decision which is rendered by a competent authority or a judge on disputed or disagreed issues. It is often disputed or disagreed in the matters of stamp duty payable by persons seeking registration of certain instruments.

In spite of clear description of changeability of stamp duty under the various Articles of the Karnataka Stamp Act, disagreements between executants and the registering authority and also certain doubts do enter into the minds of person wanting to register.In order to remove such disagreements or doubts, any person is empowered under the provisions of the Karnataka Stamp Act 1957 to adjudicate the issue or seek the opinion of the District Registrar/ Deputy Commissioner as to proper stamp duty to avoid complications like, under-valuation and penalty at later stage.

The Registering authority himself is also empowered under the Act to make a reference to the Deputy Commissioner / District Registrar for determination of the stamp duty on the property in case of disagreements or disputes arise where the person is declined to pay the stamp duty set forth by him. As provided under the Act, any instrument which is either executed or not and previously stamped or not can be brought to the District Registrar / Deputy Commissioner to have his opinion as to the Stamp Duty with which it is chargeable.

For doing so, the person should make an application with a fee of Rs.100 and also furnish an abstract of the instrument and an affidavit or other evidence as would support his claim on set forth value or such duty to be determined by the District Registrar.

Admission
On receipt of such application along with fee, abstract of the instrument or other evidences, the Deputy Commissioner/District Registrar having satisfied in all respects, shall make his best judgment to determine the stamp duty to be payable or decide that the duty claimed by the person suffices the correct description of chargeability or else decide that the stamp duty already paid is equal to the duty so determined by him or in his opinion, such instrument is not chargeable. After satisfying the case, the Deputy Commissioner / District Registrar shall certify the endorsement on such instrument accordingly and appropriately.It is also provided that the District Registrar/Deputy Commissioner may also refuse to proceed in this Adjudication, if the person does not fulfill the conditions stipulated therein.

The provision of the Act provides that no evidence furnished in pursuance of this adjudication shall be used in any civil proceedings against any person except in any enquiry relating chargeability of stamp duty. Further, every person by whom any such evidence is furnished shall, on payment of the full stamp duty which is commensurate with the chargeability of the instrument, be relieved of penalty for his omission.Endorsement not empowered

However, the Deputy Commissioner/District Registrar is not empowered under the provision of the Act to give endorsement on the instruments of the types hereunder brought to him.

a)After expiration of one month from the date of its execution or first execution in India.

b) Executed or first executed out of India and brought to him after expiration of three months after it has been first received in the State of Karnataka.

c) Or any instruments chargeable with duty not exceeding fifteen paise or a mortgage crop with a duty of twenty five paise when brought to him after the execution there of, on paper not duly stamped.

Reference for decision

It is also provided under the Act that even the Deputy Commissioner / District Registrar is enabled to refer his own decision in pursuance of this adjudication, in case of his doubt about the chargeability of stamp duty, to the Chief Controlling Revenue Authority who will also give his decision therein. More so, the Chief Controlling Revenue Authority, is also empowered suo moto within five years from the date of order passed by the Deputy Commissioner/ District register, to call for and examine the records relating to such order passed by Deputy Commissioner / Registrar after examining records and hearing the parties, pass an order in writing confirming, modifying or setting aside such order and direct the Deputy Commissioner / District Registrar. Again, the Chief Controlling Revenue Authority can refer its opinion to the High Court of Karnataka for a decision.

Generally, the Sub-Registrar is under duty and obligations to accept the instruments for registration after observing all formalities. In cases where the registering authority is deemed to have set forth the stamp value which, according to the person wanting to register, is more. The person aggrieved can definitely approach the Deputy Commissioner/District Registrar, with application, fee and other documents, for appropriate relief.

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Property transfer advisor

CHECKUP HISTORY TO SAFEGUARD YOUR FUTURE

(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

                                 

The Initial steps towards property purchase are the scrutiny of title deeds of the property and this is the first and foremost exercise the purchaser’s advocate has to undertake before entering into an agreement with the seller.

 

A clean and marketable title free from all doubts and encumbrances with physical possession is very important. The ownership can be traced from the title deeds and revenue records. It is the duty and responsibility of the purchaser’s advocate to safeguard the interest of his client. The advocate shall thoroughly scrutinize the marketable title of the property and genuineness of the documents. The advocate shall also examine the risk involved in the transaction and guide his client on the mode of payment to be adopted.

Origin of the Property:

The origin of the property is very important to trace the title of the property. It is otherwise called “Root of Title”. It is the safest way to determine the origin of the property and trace its marketable title. Documents covering a minimum period of 43 years of Adverse Possession against individuals or Conflicting Claims (other than mortgage) against individuals and documents covering a minimum period of 30 years must be checked. If a person is enjoying the property for more than 30 years, he will get title by adverse interest against the government as per the Limitation Act. Also as per Section 90 of the Indian Evidence Act 1872, a document executed 30 years before is presumed to be valid.

Subsequent Transferors:

After ascertaining the origin of the property, it should be followed up by methodical examination of events and further transaction, if any, in an uninterrupted and sequential manner, involving the previous owners and the present owner of the property. Here, the purchaser’s advocate has to very carefully look into all aspects from various legal angles as to how the property was transferred from the previous owners to the present owner. Such a transfer may be by possession, inheritance, settlement, will, sale, mortgage, release, gift etc., involving such intermediate parties. For supporting such a transaction, the advocate has to carefully examine the title deeds and other supporting documents like revenue documents and other records. Also verification of identities of the names of parties and their family connection, wherever they are relevant, and proceeding if any, involving the parties before any Court of Law, other legal forums and authorities including revenue authorities, must be done.

Statutory Clearance:

The nature of various statutory clearances obtained from the relevant authorities like revenue, land reforms, income tax, etc., equipped for completing the transaction must be informed to the parties. In case of purchase of agricultural land, various clearances must be obtained before executing the Deed of Conveyance.

Present Status:

The “Present status” of the property is the most important point to be examined. The advocate has to find out who is the present owner, origin of the property, what title deeds and supporting documents he is in possession, is it his ancestral property or self acquired property and who are his legal heirs, if the legal heirs are majors in age, the vendor must ensure their presence while executing the Deed of Conveyance. If they are minors, the vendor has to get the permission from the court before executing the Deed of Conveyance. In some cases the vendor may conceal the fact of legal heirs. To find out the truth, the advocate must ask the vendor to produce either the succession certificate or the family genealogical tree issued by the revenue authority. If necessary he must see the family ration card for further clarification.

The advocate must find out in whose name the Khatha stands, whether the khathedar possesses up-to-date tax paid receipt in his name and up-to-date Encumbrance Certificate to establish his right, title and interest in the property. The advocate has to check the Encumbrance Certificate covering a relevant period, generally above 12 years upto 43 years from which it would be known what kind of charge has been created on the property and whether such an encumbrance is subsisting or not.Municipal and other revenue authorities too maintain records as to who is in possession of the property, what is the amount of tax payable on the property and up to what period tax has been paid. All this can be learnt from these records. “Present Status” is an important factor to establish property’s present ownership.

Genuineness of documents :

After thoroughly scrutinizing the documents, the purchaser or his advocate has to check up all documents for legality with the concerned departments just to ensure that the documents are genuine; that they originated from the departments and that they are not fake ones. In addition, the advocate has to find out from the department whether there is any attestation, notification or proceedings against the present owner. In the case of buildings, it must be ensured that it has not been served with demolition notice.

Identity of the property:

The identity of the property must be checked on the spot. Measurements mentioned in the documents must tally with actual physical measurement of the land available on the property.It must also be ensured that there is no encroachment on the property. In case of encroachment, the measurement of the available land must be recorded and this must be mentioned in the Deed of Conveyance. The boundaries in the schedule surrounding the property must be checked physically. Also, the purchaser may make enquiries tactfully with the adjacent property owners about the ownership of the property he is proposing to buy.

Paper Notification:

Though paper notification is optional, it is always advisable to notify in a leading local newspaper about the buyer’s intention to purchase the property. This is done to safeguard the interest of the purchaser. Even after examining the various documents, the Advocate may not be able to find out whether the property is truly free from any claim or not.A paper notification will beget response from a genuine claimant. Therefore, paper notification is the best way to avoid legal problems for the purchaser at a later date.

Physical Possession:

In the case of a vacant site, the purchaser may, with the permission of the vendor fence the property with barbed wire or he may construct a compound wall and put a signboard, if necessary, to intimate the ownership of the property.

Verification of title is very important. It is not merely tracing the title on the record but also examination of the genuineness of the records, identification of the property, notification in a newspaper and physical possession of the title of the property.

Even after entering into an “Agreement to sell”, the purchaser continues to make enquiries about the title. A doubtful title cannot be forced upon the purchaser. Purchaser is not bound to complete the sale if there are defects in the property, material or latent, which are not discernible in the ordinary course. A mere suspicion of fraud that cannot be made out will not make the title doubtful and the purchaser cannot reject the title.

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property advocates in Bangalore

WILL AND PROBATE

(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

People have fair knowledge of will, which is defined in Section 2(h) of Indian Succession Act 1925 as “The legal declaration of intention of the testator, with respect to his property, which he desires to be carried into effect after his death”. Testator means the owner of the property who makes the Will. The intentions of testator as to how his properties are to be succeeded are detailed in Will.The devolvement of properties as directed in the Will takes place after the death of testator, otherwise called as author of Will.The Testator may also appoint some person to carry out the directions and his requests in the Will. Such a person is called executor. If the testator does not appoint any executor the competent authority, the court may appoint a person to administer the estate of the testator, who is called a administrator. The persons who are entitled to the benefits under the will are called Legatees. “Bequest under Will is not transfer of Property”

Revocation of WILL

Will is always revocable; it can be revoked following manner: Revocation by another Will or Codicil.Revocation by declaration in writing.Revocation by cancellation.Revocation by destruction; Will can be revoked ‘by burning, tearing or otherwise destroying.

Under Mohammedan law: no writing is required to make a Will Valid and no particular form; even of verbal declaration, is necessary as long as intention of the testator is sufficiently ascertained, and though if it is writing it does not require to be signed nor even signature and attestation,But under Mohammedan law a Mohammedan cannot dispose of more than one third of share of his property over which he has power of disposition by will. Bequest in excess of the legally One Third shares cannot take effect, unless the heirs do not consent. The remaining two third portions shall go to his heirs in share prescribed by law.

Probate

Probate is defined in Indian Succession Act, as “a copy of Will certified under the sealof a court of competent Jurisdiction with grant of administration to the estateof testator”. This is the official proof of the Will. Application for probate has to be filed under section222, and 276 of Indian Succession Act in the probate division of High Court.The Petition for grant of probate shall also be verified by at least one of the witnesses to the will if procurable. However this condition is recommendatory and not mandatory. Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.

Section 233 of Indian Succession Act 1925 states that Probate will not be granted to minors, persons of unsound mind, to any association of Individuals unless it is a company, which satisfies the rules, conditions prescribed and published in official gazette by the State Government.

When the Will is to be probated, the original is to be deposited in the registry of the court. The court will issue a copy of the Will with a certificate of having it made out under the seal of the court. The copy issued to the executor is called probate.

If a codicil is discovered after the grant of probate a separate probate exclusively of such codicil will be granted to the executor provided the discovered codicil does not appoint another executor. Codicil is an addition to the Will; a supplement to the Will. It can be made any time after the Will is made, during the life time of testator.A codicil contains anything, which the testator wants to add, any explanation, cancellation and even cancellation of the Will. Codicil is a document that amends rather than replaces a previous executed will, and Codicil is part of main Will and needs to be executed with the same formalities as that of a will and must be proved with the Will. If the testator appoints a different executor in codicil, which is discovered subsequent to grant of probate, the probate of the Will stands cancelled. A new probate of both Will and codicil has to be granted together.

If the Will is lost or misplaced by accident and if a copy of the Will is available the probate may be granted until original Will is produced. If the Will exists and the possessor refuses to give the to give the will or the possessor is abroad, the court may grant probate on the copy of the draft Will until the original or authenticated will is produced.

The Probate of the Will is issued in common form, if not disputed and it will be in solemn form if disputed or irregular.

Where Probate is required?

There is much confusion whether all wills execute by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains require probate. Section57 and read with section 213 of Indian Succession Act clears this confusion.

Obtaining of probate and letters of administration are mandatory to establish the right as executor or legatee as per those sections. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion. In case of Hindus, Buddhists, Jains, Sikhs the provision is applicable only to the Wills made after 01.09.1870 within the territories which on the said date were subject to the Lieutenant Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and even to the Wills made outside those territories, if the immovable properties referred in Will falls within the territories mentioned above. Provision is not applicable to Wills made by Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable properties referred in will are situated outside these territories. Probate of will is must in Madars, Bombay and Calcutta. In moffusal areas it is optional.

Obtaining of probate is also applicable to Parsis, if a person executes Will and he dies after the commencement of the Indian Succession Act, within the local limits of ordinary original civil Jurisdiction of High Courts, of Calcutta, Madras, and Bombay or if the immovable properties referred in Will is situated in those territories.

As stated earlier, the probate will be granted only to the executor appointed in the Will. Such appointment may be expressed or by necessary implication. Suppose In the Will if it narrates that ‘A’ shall be the executor, and ‘B’ do not have any interest, then in such circumstance ‘A’ shall be the executor and ‘B’ does not have any interest. If several executors are appointed, the court may grant probate to all of the simultaneously or if it is not possible to grant probate simultaneously it may be granted at different times. In case where probate is granted to several executors and if anyone of the dies, the full representation of testator rests on the surviving executors.If the executor appointed renounces or does not accept to be executor, within the time limited for acceptance, the Will may be probated and letters of administration with a copy of the will annexed may be granted to person, who would be entitled to administration.

Death of Executor

The Act provides for various contingencies. If the testator who has made the Will

a)Does not appoint an executor

b)Or the appointed executor is legally incapable to act or executor died before the Will is probated.

c)Or has died after having probated the Will but before carrying out the directions of the testator.

The court may admit an universal or residuary legatee to probate the Will and letters of administration may be granted to him.

If the author of the Will bequeaths all his properties to a single person, such a person is called universal legatee. After paying all debts, charges and devolvement to legatees, as per the Will anything that remains is called residue. The testator may bestow such residue to a particular person who is called residuary legatee. In certain cases the residuary legatee may die before the properties of the testator are devolved as per will. The representative of the residuary legatee has the same right to administration as that of a residuary legatee.

The executor may be appointed for any limited purpose the relevant probate shall also be for such limited purpose.

Revocation of Probate: The grant of probate may be revoked on following grounds. A) The proceedings to obtain the grant were defective in substance. B) The grant was obtained by fraud, by making false suggestions. C) The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently.D) The grant has become useless and inoperative through circumstances. E) The person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with prescribed law or exhibited inventory of account which is untrue in material respects. District Judges also have Jurisdiction to grant and revoke probates in all cases within his district.

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