The transfer of immovable property by way of sales, gift,
will, releases etc. presupposes that documents to the title of transferred
immovable property are delivered to the transferee on completion of process.
This is statutory obligation. Section No. 55(3) of Transfer of Property Act,
casts this responsibility on the seller. But the section has a proviso that in
case where only a part of the property is sold and the seller retains a part of
the property the seller is entitled to retain the original documents, and
copies of such documents are delivered to the purchaser.
In case, where the property is transferred to different persons, in different lots, the transferee
of greatest portion is entitled to hold the documents of title and others are
provided with copies of such documents.
In the circumstances dealt
above, the persons holding the documents either the seller or one who hold the
greatest portion has some responsibilities. He has to keep the documents in
safe custody and in good condition. He has to make available the documents for
inspection to other buyers, and also furnish the true copies of such documents;
extract from such documents, whenever required.
But
the cost has to be met by the buyer who needs such inspection or copies,
extracts. Those responsibilities are required to be recorded properly.
The document, which
records such obligations of safe keeping the documents; producing them for
inspection, providing copies, extracts is called “Deed of covenant for production of documents”
The deed of transfer like
sale, gift, will, and release may contain such a covenant by the vendor in
favour of purchaser or a separate deed may also be executed by the vendor in
favour of purchaser. In case of the person
holding greatest portion, a separate covenant deed about his obligations
becomes necessary. A separate deed in favour of each of other transferee of
other portions or a common deed in favour of all other transferees jointly may
be executed.
In the deed of transfer of
the greatest portion or of highest value an explicit covenant, that, the
transferee shall safe keep the documents in good condition, produce for
inspection of other transferee and furnish true copies or extract should be
included. Similar relevant covenant should also be incorporated in deed of
transfer of other transferees.
Generally all the portions
of the property are not transferred at the same time, and the above suggested
procedure may not be possible. In such cases, the transferor should give a
covenant of production of documents in each of the deeds of transfer and it
should further provide that if and when the transferor hands over the documents
to any other transferee at a later date he would procure a similar condition
from the such transferee. Under a covenant of production of document, the
original covenantor remains liable indefinitely unless a condition provides
that he is no more responsible after he parts with the remaining portion of the
property.
In case the condition is
included in the deed transfer itself, no separate stamp duty is payable. If a
separate deed is executed, it attracts the stamp duty as that of an agreement
depending upon the stamp duty prescribed by the state.
This deed of covenant does
not require the registration, but it is advisable to get it registered.
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