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.
More,
No comments:
Post a Comment