Friday 6 June 2014

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. 

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 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. 

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 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.

Minor properties 
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. 

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. 

Creation of equitable mortgage
Only the person having valid marketable title as certified by the legal advisor can createequitable 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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