PURCHASE OF PROPERTY BY SHARE CERTIFICATE

Advocate Selvakumar | property advocates in Bangalore | advocates in Bangalore 

            TRANSFER of immovable properties, particularly through transfer of shares, is very common in Mumbai, Gujarat, West Bengal but not so popular in Karnataka.

            The Transfer of Property Act, 1882 defines the transfer of property as “An act by which living persons convey the property in present or in future to one or more other living persons or to himself” and to transfer the property is to perform such act (Sec5).

            The act further describes the word “living persons” to include company, association, body of Individuals, whether they are incorporated or not.

            The recognized mode of transfers are sale mortgage lease, exchange, gifts. Incase of mortgage and lease, the owner of the immovable property retains his ownership rights but transfers some interest, and in certain cases possessory  rights.

            Sale, exchange and gifts are transfer of absolute rights in the immovable property by the owner to the other. In sale and exchange, the transfer is for consideration in cash or kind. In gift, the property is transferred to other out of love and affection and no other consideration is accepted and the transfer is absolute without any conditions attached. Section 10 of the Transfer of Property Act mandates that no absolute restrictions be imposed on transfer of property and only some temporary restrictions may be part of the transfer.

            The registration of sale and exchange deeds, if the value of property transferred is one hundred Rs. or more is a must. Incase of transfer of immovable property is by gift, the document evidencing the gift should be registered irrespective of the value of the gifted property. Section 17 of Indian Registration Act deals with the documents whose  registration is compulsory. It includes deed   of gift, non testamentary document (other than will) which create declare, assign, limit, extinguish any right, title, interest on immovable property, the value of which is Rs.100 or more.

            The stamps acts of various states prescribe the stamp duty payable on such documents of transfer.

            Thus, any transfer of immovable property shall be absolute without permanent restrictions, with power to alienate and shall be by registration of the deed of transfer on which prescribed stamp duty has to be paid. The prescription that the registration is compulsory when the value of the immovable property is Rs. One Hundred or more is only of academic interest, as no immovable property will be less than worth Rs.100. But, we are dealing in this article, with an altogether different type of transfer of immovable property adopted by some housing co-operative societies where the transfer is neither absolute nor the deed or transfer is registered.

Housing co-operative societies

            With the evolution of time and emergence of group housing schemes institutions which serve the cause of housing have developed. These housing societies are co-operative institutions which are required to be registered with the registrar of the co-operative societies. They have their own rules, by law. Recently, the Supreme Court had held that they can limit the membership to a particular class unless appropriate amendments are made to various co-operative societies Acts, incorporating a policy that no society shall be formed or if formed, membership in no society shall be restricted to a particular profession, religion, belief. There are mainly three types of housing co-operative societies.

Tenant ownership co-op housing societies

            The society purchases or takes on lease the land, makes layout and allot sites to its members. The members construct the houses at their cost. In such societies the land is owned by the society and the constructed part by the members.

Co-partnership co-op housing societies

            The society purchases or takes on lease the land and constructs buildings/flats which are allotted to the members. Here both the land and constructions are owned by the society.

Other co-operative housing societies

            The persons who have purchased flats from builders under the agreements as per flat ownership Acts of various states from society. The builder conveys the land and building in favour of society. Such societies are called flat owner’s type co-op housing societies.

            Both the land and building vest with the society. One should not mistake these societies, with the associations formed by the purchasers to manage the common areas and to keep the documents to title of the property.

Shares of the Societies

            Housing co-operative shares which own both the land and building offer shares to its  members. The number of shares allotted to its members is in relation to the flat, which is to be allotted to the members. To be clearer, the member who is allotted a three-bedroom flat has more shares than the person who is allotted a two bed room flat. The society owns the land and the building. On payment of fixed amount of deposit, the society allots the flat to the member.  No sale deed is executed or registered in favour of the member. He is not the absolute owner of the flat. His right is limited only to the use and enjoyment of the flat. Shares, deposit, and right to use and enjoy the flat shall constitute an integral and indivisible right which shall not be separated, that is, a share holder cannot transfer the shares to one person, deposit to another and right to use and enjoyment of that flat to a third person. In such an irregular transfer, the societies recognize only the person to whom the shares are transferred.

            So, in case of transfer of right to use and enjoyment of his flat, the transfer of shares to such a transferee is a must. Members may also surrender his rights to use an enjoyment of the flat to the society and get a refund of the deposits and share money. The members do not get absolute rights over the property and the ownership vests with society.

            Apart from housing co-operative societies, certain companies which are registered under the Companies Act, also follow this procedure, where that flats are allotted to its member share holders only to use an enjoy the flat, retaining the ownership with the company.

            The member is entitled to transfer his rights – use and enjoyment of flat. No absolute ownership is transferred which vests with the society. No objection certificate from society is necessary for such transfer. The purchaser has to become a member of the society. The shares standing in the name of the previous owner will be transferred to the transferee. The society charges a fee for such a transfer.

Mortgage

            Often, financial institutions finance transfer of such flats. But as the right of the member is limited to use and enjoyment of the flat, the financing institution does not get proper charge of such flats as the ownership is with the society. No Objection certificate is a must for such a mortgage.

            The Supreme Court has held, such properties cannot be alienated or auctioned to recover the dues. Even the entire property is assessed as a single unit for property tax, which will, in the name of the society will collect proportionate property tax from members.

Housing Societies in Karnataka

            This practice is not so common in Karnataka though, there are some tenant ownership housing Societies in Karnataka. The Karnataka government has made it very clear that separate regular conveyance deeds have to be made in case of individual share holders on payment of property stamp duty and registration charges. Department of Stamps and Registration has issued notices in many cases and the law is still unsettled in out state.

PURCHASE AND TRANSFER OF PROPERTY BY NRIs

Leading advocate in Bangalore | property lawyers | real estate lawyers in India

This is the second part of the article. The first part appeared in these columns on March 12, 2004.

PIO (Person of Indian Origin) is also permitted to gift residential or commercial property in India to person resident in India and a NRI or PIO.

Repatriation of proceeds

Prior permission of the RBI is required to repatriate the sale proceeds of immovableproperty outside India, by a NRI, or his successor. The authorized dealer is permitted to allow repatriation of the sale proceeds of immovable property in India/outside India except agricultural, plantation property or farmhouse outside India to a Non Resident Indian (NRI) or to a PIO on following conditions:-

The acquisition of the immovable property by the seller was in compliance with the law and regulations in force.

The property was sold after three years from the date of acquisition or from the date of payment of final installment of sale price, whichever is later.

The amount to be repatriated does not exceed the amount paid for acquisition in foreign exchange received through normal banking channels or funds held in foreign currency Non-Resident account or equivalent to foreign currency on the date of payment if acquired through Non-resident external account.

If the sale proceeds are of residential property, repatriation should not be more than two properties.

There is a complete prohibition against acquisition or transfer of immovable property in India by the citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Nepal and Bhutan without the prior permission of the Reserve Bank of India (RBI).

However, they may acquire or transfer immovable property on lease, which should not be beyond five years.

RBI has permitted the repatriation of Sale Proceeds of immovable property up to $1,00,000/- per year, provided the property is held by NRIs/PIO for a period of not less than 10 years.

Acquisition of Immovable Property

Reserve Bank of India has accorded permission to a NRI to acquire immovable property in India, for the purpose of carrying on business or other activities in India on the following conditions:

The purpose is to open a branch or other place of business.

The business or activity is established in India as per the Foreign Exchange Management (establishment in India of Branch or Offices or other place of business) Regulation, 2000.

The office is not a Liaison Office.

There is a need to acquire immovable property to carry on the activity.

There is strict compliance of all applicable laws, rules, regulations, and direction in force.

The person files Form No.IPI within ninety days from the date of such acquisition.

The immovable property acquired is permitted to be transferred by way of mortgage to an authorized dealer as security for any amount borrowed.

Housing loan in rupees to a Non-Resident

Non Resident Indian or a PIO (a person residing out of India and holding an Indian Passport, whose father or grand father was an Indian citizen by virtue of Constitution of India, is eligible for a housing loan to acquire residential accommodation in India subject to the following conditions:

Loans to be availed from an authorized dealer or a Housing Finance Institution approved by the National Housing  Bank.

Amount of loan, margin to be met and repayment period will be as applicable to a person residing in India.

The loan proceeds are not allowed to be credited to Non-Residential External (NRE) / Foreign Currency Non-Resident (FCNR)/Non-Resident-non-repatriable account of the borrowed.

Loan should be fully secured. The acquired property will have to be given as security by equitable mortgage.  If needed, other assets of the borrower will have to be given by way of lien.

The repayment of loan, interest an other charges shall be by the borrower from out of remittances outside India through normal banking channels.

This may be from the funds of the borrower in his Non-Resident External (NRE)/foreign currency Non-Resident (FCNR) Non-Resident Non-repatriable (NRNR)/Non-Resident-ordinary (NRO)/Non-Residential Special Rupee (NRSR) account in India. The rental income of the property acquired may also be used for repayment.   

The interest charged to the loan shall be in conformity with the RBI, National Housing Bank directives.

Invest out of Local Funds

Reserve Bank of India grants permission to foreign citizens of Indian origin to invest in local funds in real estate on submission of necessary applications provided such investments are for bonafide use of residence.

If the property is not immediately required for residential purpose, the same may be leased out and the lease amount is repatriable.

Foreign Citizens residing in India are allowed to purchase one property for their bonafide residential purpose out of their Rupee funds.

Investment by non Indian Origin Foreign Citizen

Foreign national of Non Indian Origin any purchase of immovable properties in India for their residential purpose, out of fresh remittance of foreign exchange through normal banking channels, with prior approval of Reserve Bank of India.

The income out of investment cannot be repatriated. If any member of a Partnership Firm, Trust, Association or Club is a foreign Citizen, prior permission of RBI is necessary for purchase or sale.

Foreign Companies / Banks

Any foreign Company other than Banking Companies are permitted to acquire / hold immovable properties if they are needed for their business. They have to declare such acquisition to the RBI.

Foreign Companies who have only liaison office in India can also invest in acquisition out of fresh remittance.

Income out of investments in Real Estate is more remunerative, safe, and appreciates in the course of time.

Before investing your hard earned money in any immovableproperty, do scrutinize the title deeds through an eminent Lawyer and select the promoters having good track record to safeguard your investment.

PROTESTING OWNERS INTEREST

Leading advocate in Bangalore | property lawyers | real estate lawyers in India

With Pro-tenant statutes being predominant; the landlords have to take all necessary precautions to protect their rights through appropriately worded contractual documents called Leave and licenceagreements. Rental Agreements are popular, but leave and licence agreement is more advanced and protects the interests of the owners. This is widely used in Mumbai and other metros and is gradually being adopted in Bangalore.

What is a licence?

Licence agreement is a document granting permission to use a land without a right to exclusive possession and such transactions are governed by section 52 of the Easement Act; however the Transfer of Property Act does not refer to leave and licence as a mode of Transfer of Property.

Section 52 of the Indian Easement Act, defines licence as where the grantor grants to another person or number of other persons, a right to do, or continue to do in the immovable property of the grantor, something which would, in the absence of such permission, be unlawful and such a right does not amount to an easement or an interest in the property, the right is called a licence.

A licence is notionally created where a person is granted the right to use the premises without being entitled to the exclusive possession of the premises or the circumstances and conduct of the parties show that all that was intended was that the grantee should be granted a personal privilege with no interest in the property. Thus, if the agreement is merely for the use of the property in a certain way and on certain terms, while the property remains in the owner’s possession and control, the agreementwill operate as a licence agreement.

The person who grants the right to do something on his immovable property is called grantor or licensor and the person who gets the right is licensee. Licence is a personal right given to the licensee and therefore cannot be transferred by the licensee or exercised by his servants and agents Thus, the licence is the grant of permission to do something upon the immovable property, however it does not create any right in the immovable property in favour of the person, who does something. It is different from lease, which is a mode of Transfer of Property, where the lessee gets certain rights including the possession to do something that is occupying or residing. Even the possession is not exclusive, in leave and licence but deemed to the joint possession of both, the licensor or licensee. It is not an easement right and is in fact akin to residing in a lodge on payment of charge. The charges paid for occupation is called compensation.

Similarly, where the licensor transfers the immovable property to another person by way of sale, gift, etc., the transferee is not bound by the licence. This is not so in case of rented or leased property, where the transferee is bound by the terms of agreement made between the lessor and lessee.

Revocation of Licence

a.         Where the licensor ceases to have any interest in the property.

b.         Where the licensee voluntarily relinquishes the licence granted.

c.         Where the licence is granted for certain period or to do some specific act and on expiry of that certain period or completion of the act or non-performance of the act.

d.         Where the property in respect of which licence is granted is destroyed or permanently altered by superior force.

e.         Where the licensee becomes the owner of the property.

Where the purpose for which licence is granted becomes impracticable or abandoned.

g.         Where the office, the employment or the character for which licence was granted ceases to exist.

h.         The licensee ceases to use the property for an unbroken period of 20 years.

Leave and Licence Agreements:

Though there are definite legal provisions, which separate licence agreements from lease agreements or tenancy agreements, often it is confusing leading to litigation. Outwardly both lease and licence seem similar. In lease or renting, a property is given to some other person for definite period on payment of some specified amount, which may be lump sum, or periodical called lease amount or rent. Similarly in leave and licence also property is given to some other person for use on payment of compensation. The real determining factor is the creation of interest in the property. It has been held in many cases that the intention of the parties and their conduct are important to determine whether a particular case is licence or lease. A provision to keep the property in good and tenantable repairs would be an indication in favour of lease or tenancy than licence.

Principles for Licence:

In another case, the court has laid down the following principles for determining the agreement as licence:

a.         The agreement is signed by the licensee only.

b.         The licences for carrying the business stand in the name of licensor.

c.         Both the parties have control over the property,

d.         Admission made by the licensee in subsequent correspondence indicating that the agreement is a mere licence

It has also been held that, if the licensee under the terms of licence constructs any structure of permanent nature and the construction made by the licensee with the knowledge and consent of the licensor; the licence cannot be revoked, likewise the licence cannot be revoked, when coupled with transfer of property and such transfer is in force.

So proper care should be taken while preparing the leave and licence agreement to include the points mentioned by different courts. The agreement should adhere to the following in general:

a.         The period of licence should not be more than 11 months; even if feasible no definite period should be mentioned.

b.         There should not be provision to extend the agreement with mutual consent.

c.         The licence should be liable for cancellation without assigning any reason.

d.         The possession should not be exclusive.

e.         There should not be any provision for termination of licence or re-entry, if mentioned it would amount to exclusive possession and transfer.

f.          There should not be any clause about keeping property in good and tenantable repairs, which is an indication of tenancy.

g.         Avoid mentioning clauses pertaining to the payment of taxes, rates by the licensee.

h.         Avoid mentioning clauses pertaining to letting or subletting, since licence does not confer such rights on the licensee.

Contents of the Agreement:

Just incorporating the words licence, licensor and licensee in an agreement, does not make a document a leave and licence agreement, but the contents, intention of parties and their conduct determine the nature. Courts are inclined to treat the documents as that of lease, in case of any doubt as to whether a document is a leave and licence agreement.

The licence dealt in this article is different from nature of licence issued and granted to sell goods or to drive motor vehicles or to work as agents. Licence to use immovable property, is a contractual permission governed by Easement Act and is not a statutory licence. Drafting a leave and licence agreement is more difficult than any other document and only experienced and skilled advocates would be in a position to ensure that the agreement retains only the characteristics of a leave and licence agreement and leave no scope for any other interpretation of such agreements. It is always preferable to go in for leave and licence agreement as it protects the rights and interests of the owner without giving undue favour to the occupants.

PROTECTING THE DOWNTRODDEN

Advocate Selvakumar | property advocates in Bangalore | advocates in Bangalore

In a Democratic Country, welfare of the poor, depressed, have-nots is one of the concerns of the Government.  To mitigate the suffering of such people, government often grants land so that they cultivate the  land and earn their livelihood and imposes restriction on transfer of such granted land for certain period to ensure that the desired welfare objectives are not defected. Members of Scheduled Castes and Schedule Tribes are the most exploited.

As discussed many times the sale and purchase of agricultural land in Karnataka has various restrictions.  Government of Karnataka has put severe restrictions on transfer of lands granted to Schedule Castes and Schedule Tribes.  The relevant legislation is ‘The Karnataka Schedule Castes and Scheduled Tribes (prohibition of transfer of certain lands) Act 1978 and Rules 1979.

This is a social agrarian legislation to empower the down trodden and also to prevent exploitation.  This act has overriding effect and takes control of all granted lands, irrespective of law under which they were granted be it under Karnataka Land Reforms Act, Karnataka Land Revenue Act, Mysore Land revenue Code, or those of erstwhile provinces like Bombay, Coorg, Hyderabad, Madras and prohibits transfer of such lands without the permission of the Government. This act has come into force from 01.07.1979.  However, the Act covers lands granted even before the commencement of the Act.

Granted Land

Granted land is any land granted by the Government of Karnataka to the person belonging to any of the Schedule Castes or Schedule Tribes.  It also includes lands granted to such persons under any relevant law in force for time being pertaining to agrarian reforms, land ceiling, abolition of Inams except those relating to hereditary offices or rights, that is the lands granted under hereditary offices like thoti, Neeruganti etc., which are not covered under this act.

The Presidential orders 1950, under articles 341 and 342 of the Constitution of India have proclaimed the state-wise list of Schedule Castes and Schedule Tribes. The list has relevance to the State in which the members of the community reside.  A caste categorized as Schedule Caste in one State may not be so in another State. Persons who do not follow the religion of Hindu, Sikh, Buddhists, are not deemed as members of scheduled castes.

Transfer Prohibited

The Act prohibits any type of transfer of land; not limited to sale without prior permission of the government.  The word transfer as used in this act encompasses sale, gift, exchange, mortgage, lease or any other similar transaction.  It prohibits mortgage whether with or without possession.  It includes creation of charge, or an agreement to sell, exchange, mortgage.   But partition among family members and disposition by will are not covered.  Transfer of granted land to another member of Schedule caste or tribe is violation under this act.

Section 4 of this act is more crucial and important.  It spells out that transfer of any land granted before commencement of the act or after, in contravention of terms of grant is null and void, which means such transfer is inoperative.  The transferee will not get legally valid title, interest or right to such property.

Further, it clearly mandates that any transfer of granted land needs prior permission of Government.  Permission of the Government is also necessary for sale of the land in execution of any decree or order of a civil court or any authority.  This makes it very clear that any transfer of granted land even after complying with terms of grant needs the prior permission of Government.  Even entering into agreement to sell needs prior permission of the Government.

The land might have been granted free of cost, or at reduced price (up set price).    Reduced price means the price based on land revenue and not market price.  In many cases, the grantee that is the person to whom the land was granted will be asked to pay price equal to land revenue of some years. 

Land is granted to the members of Schedule Castes and Tribes with certain conditions like,

1)      The grantee shall not transfer the land for a period of 15 years from the date of taking possession

2)      The land should be brought under cultivation within three years from taking possession.

3)      The grantee shall cultivate the land personally

4)      The land shall be used for the purposes for which it was granted and any change of use requires prior permission of the Government.

5)      The grantee shall plant within a period of one year one tree for every ten guntas or 10 trees for one hectare.

The land may be granted not only for agricultural purpose but also for constructing residential accommodation with restrictions on transfer.  Though the restrictions on transfer of the granted land is 15 years or more, the government may permit the transfer after a lapse of five years depending upon the circumstances and the needs of the grantee. The procedure for grant of lands are governed by Karnataka Land grant Rules 1969.Transfer of any type of lands granted to the members Scheduled Caste/Tribe requires prior permission of the government also.

Government Mistake Back

Now we shall discuss about the transfer of land granted to the members of /Schedule castes and tribes within the period of restriction on transfer or without the prior permission of the Government.  As stated earlier the transferee will not get any legally valid title, interest, right in such property.  Further the Government, represented by the Assistant Commissioner, after an enquiry may take possession of such land; by evicting the persons who are in possession of land.  However sufficient opportunity will be provided to the transferee to present his version of the case.  After taking the possession of such transferred grant land the Government may restore the land to the original grantee or his legal heirs.  If it is practically not possible to restore such land to the grantee or legal heirs, the land will vest with the government free of all encumbrances.  The Government may grant such land to any other member of Schedule Caste or Schedule Tribe eligible for grant.  If the enquiring authority finds that the transfer of land has not violated any provisions of the Karnataka Schedule Caste and Schedule Tribes Act 1978, orders will be passed accordingly.  The Government has got powers to initiate action by the mere fact that the granted land is in the possession of the persons other than original grantee or his legal heirs.  It is not necessary that the original grantee or his legal heirs to lodge the complaint. A interested person or on information provided by any person or the government on its own may initiate action.  The act also provides for appeal by the aggrieved persons who have lost the possession of the land purchased.  He may appeal to the Deputy Commissioner having jurisdiction within three months from the date on which the order of Assistant Commissioner was communicated to him.  Deputy commissioner also has powers to condone the delay in preferring appeal, if satisfied about the cause for delay. Deputy commissioner will dispose the case based on merits.

Registration of Granted Lands

The act prohibits the registration of any document of transfer of such granted land without compliance of the provisions of this Act that is without prior permission of the government.  Every registering office will be provided with a list of granted lands falling in its jurisdiction.  However, this prohibition will not apply to transfer of granted land in favour of State Government, Central Government, local authority or bank.

What is more serious is the punishment prescribed for acquiring the land granted to the Schedule Castes and Schedule Tribes in violation of the provisions of this act, that is without prior permission of the Government and in contravention of the terms of grant. Such transferee on conviction may be punished with imprisonment upto six months or fine upto two thousand Rupees or both.

Judicial Verdicts

Following are some of the important judicial verdicts pertaining to the Act.

Unless proved otherwise, if a person other than grantee is in possession of granted land, it has to be presumed that the land is transferred and it is null and void (ILR 1997(1) KLR 474 Possession by a trespasser will not amount to transfer under the act (ILR 2002(2) KAR2431. 

Alienation to bank is not prohibited (ILR2002 (3) KAR 3780.

Alienation of granted land in form of mortgage without prior permission of the Government is void (2000(2) KLR SN21)

When authority-granting land has not imposed the condition of alienation, the authority issuing Saguvali chit cannot impose such condition (ILR 1999(1) KAR 261.

To avail the advantage of adverse possession, such possession should be for thirty years prior to the act coming into force 1999(5) KLJ732. 

Whether the grant is for upset price or otherwise the prohibition is applicable 1991(1) KLR 373

If the transferee has made some improvements he cannot claim compensation on eviction  (1992(4) KLJ1.

Even bits of land granted for house sites are covered by the act (ILR 2001(3) KAR 3753:2001(4) KCCR SN 320-DB.

Purchasers will Lose

Though the Act functions as a socio-agrarian legislation, aimed at improving the social and economic status of the members of Scheduled Caste and Scheduled Tribes, the chances of its misuse cannot be ruled out. Many grantees, legal heirs etc., sell the granted lands to innocent people, who are unaware of the provisions of this Act, and later on claim that such transfer is null and void. Though ignorance of law is no excuse, the government should also educate the public and land records like RTC, RRPR etc should clearly indicate the nature of the land and restrictions on its transfer. But the RTC or RRPR does not disclose this prohibition. Though there is prohibition on registration of such land in the Act, there is no punitive provision to the sub-registrar for violation. Many registering officers register the transfer of such granted land many times in connivance with the seller. The ultimate victim will be the innocent purchaser who loses the property and money and is also at risk of facing imprisonment and fine. Any social legislation should ensure that equity and justice is meted out to all and a fine balance is struck.

PROPERTY RIGHTS OF WOMEN’S

Leading advocate in Bangalore | property lawyers | real estate lawyers in India

Constitution of India does not differentiate between males and females. Women have equal rights as that of a man in every sphere. Earlier women did not have any rights to the property and they were at the mercy of the male members of the family. Joint Hindu Family, an unique institution acted as refugee home for many women, widows. With the disappearance of the Joint Hindu Family, the plight of women worsened. Gradually in course of time, the women have acquired absolute rights over the property as that of a male. Successive Governments have enacted various laws improving / conferring property rights to women.

Hindu Women’s Rights to the Property Act 1937 dealt with the rights of Hindu widow, on the death of her husband who does not make any Will. In such cases, the widow or widows are entitled to the share of the property as that of a son. But her interest in the property, Hindu Women Estate is limited interest.

Karnataka Hindu Law Women’s Rights Act 1933 conferred limited rights to the property, to the women. This limited right is called limited estate. Under limited estate rights, the women do not get any rights to alienate the property by Sale, Will and Gift etc. But the women had full rights including that of alienation by Sale, Will in case of Stridhana Property. Stridhana includes ornaments, apparel, gift received, property acquired out of her savings.

Intellectual Property Law

REVOLUTIONARY CHANGES

The Hindu Succession Act 1956 brought out revolutionary changes in property rights of women. Section 14 of the Hindu Succession Act, confers absolute rights to the female in any property possessed by Hindu female. The rights are of full nature including unfettered rights of disposal of property.

The property covered under the section 14 of the Hindu Succession Act is both movable and immovable, which is acquired by inheritance, demise, partition, in lieu of maintenance, arrears of maintenance, gift, property acquired by her own skill, purchase, prescription, or in any other manner and also Stridhana. This absolute right operates retrospectively, since the Section 14 refers to the properties acquired before or after the commencement of the act.

RIGHTS IN FAMILY PROPERTY:

Another area, which was improved upon, is Co‑parceners property. Co-parceners property is a Hindu undivided family property. The member of Hindu Undivided property is called co-parcener who attains the right in the property by birth. They are all related to the head of the family. This Co‑parceners include relatives within four degrees including Kartha. Earlier females were not member of co-parceners, hence were denied succession to the ancestral property. Many States, Karnataka, Andhra Pradesh, Maharashtra, Tamil Nadu, Kerala have amended the Hindu Succession Act 1956. Amendment to Hindu Succession act by Karnataka has come into effect from 30-07-1994. Women who have married prior to 30-07-1994 do not have any rights in the ancestral/co-parceners properties. But this act gives women equal status as that of a Male who are married or not subsequent to 30-07-1994. She becomes a member of Co‑parcenary by birth in the same manner as that of a son. On partition of the co-parcenary property, she is entitled to the equal share as that of a son. The property so acquired on succession is capable of being disposed by her, through Will or any other Testamentary disposition.

In certain cases the ancestral house might be the co‑parcenary property. Generally, members of the joint family, mostly male co-parceners reside in such houses. In such cases, the female member cannot force a partition of such ancestral house unless other male members in occupation of the house opt for partition.

But the unmarried daughter, a married daughter deserted or separated from her husband, or a widow is entitled to a right of residence therein.

Publications

PROCEDURE FOR THE REGISTRATION OF PROPERTY DOCUMENTS

Advocate at south Bangalore | Leading advocate in Bangalore | property lawyers

The Indian Registration Act, The Registration (Karnataka Amendment) Act 1975, The Karnataka Registration Rules 1965, govern the registration of documents.  Every person may have to visit the office of registration for registering documents at least once in his lifetime, but provisions of Registration Act remain unknown to common public. This article discusses certain provisions, rules of registration.

Language of the document

Our country is a land of many languages and there is no restriction as to which language should be used in writing the documents.  But it is also not possible for the registering officer to know all languages.  Section 19 of Indian Registration Act states that if any document in a language which is not understood by the registering officer and is a language not commonly used in the registering district, the registration may be refused, unless such document is accompanied by a true translation into a language commonly used in district and also a true copy.

Karnataka Registration Rule No.11 has recognised following languages in districts and sub districts;

Kannada and English                          -           All districts and sub districts in the       
                        State.

Telugu                                                 -           Bellary district

Marathi                                                -           District of Belgaum, Bijapur,
                                                Dharwad and North Karnataka and      

                                                                        sub-districts of Alland, Bidar,

                                                                        Gulbarga.

Urdu                                                    -           Districts of Bidar, Gulbarga,
                                                                        Raichur

Time for presenting the documents

The Act provides as to by which time, the documents should be presented for registration.  Every document has to be presented for registration within four months from the date of execution as per section 23.  The only exception is Will.

But if the document has to be executed by several persons and each person executes at different times, such document has to be presented for registration and re-registration within four month from the date of each execution.

However, the registration of documents presented after the expiry of four months is allowed on payment of fine as follows as per Section 5 of Indian RegistrationAct and Rule No.52 of Karnataka Registration Rules.

a)              Where the delay does not exceed one week		Fine equal to registration fee
b)             Where delay exceeds one week but does not exceed  one calendar month		Fine equal to twice the registration fee
c)              Where the delay exceeds one month but not two months		Fine equal to five times of registration fee.
d)             Where the delay exceeds two months but does not exceed four months		Fine equal to ten times of registration fee.

Where delay exceeds four months from the date of execution registration is not allowed. The fine is payable is in addition to regular registration fee.

Place for registering the documents

The documents which affect immovable property have to be presented for registration at the office of the sub registrar of the district in whose jurisdiction whole or a portion of such property falls as per section 28 and other documents not affecting the immovable property or copy of decree or order may be presented in any office of sub registrar in whose sub district the document was executed or in the office of any other sub-registrar under the State Government at which all persons executing and claiming under the document prefer.  The decree or order may also be presented for registration in the office of the sub-registrar in whose sub-district the original decree or order was made (Sec.28, 29).

Time from which registered document operates

A document which is registered shall be operative from the date of execution or from the date from which it was to operate as disclosed in the document and not from the date of registration (Sec 47).

All registered documents other than Will relating to movable and immovable property shall have priority over oral agreements or declaration in connection with such property.  But if such oral agreement or declaration is coupled by delivery of possession of the property and such possession constitutes a valid transfer under any law for the time being in force, such oral agreement or declaration has priority over registereddocuments.

A Will made subsequent to earlier registered Will have priority over earlier made and registered Will.

A mortgage by deposit of title deeds shall have priority over any mortgage deed subsequently executed and registered, when both relate to the same property (Sec.48).

senior advocates in Bangalore  Best advocate to verify property legal documents in Bangalore

Duties of Registering Officer 

The Registering officer has to endorse the time, hour and place of registration and also the signature of the person presenting the document for registration on every document so presented and shall also be receipted. 

Every person who executes any document has to admit such execution at the registering office either personally or through his duly appointed agent and shall endorse such admission of execution.  The endorsement shall contain the particulars such as signature and addition of the person admitting the execution, the signature and addition of any agent admitting the execution, the signature and addition of every person examined in reference to such document under any provisions of the Registration Act, payments and delivery of any goods made in the presence of the registering officer connected to the document presented for registration, admission of receipt of consideration in full or in part made in the presence or registering officer.

If any person admits the execution but refuses to endorse, the registering office shall register the document, but shall endorse the fact of refusal.

The provisions of admitting the execution and endorsement does not apply to copy of decree or order and documents sent to registering officer under special provisions provided in Sec. 89 of the Act (Sec.58).

All such endorsements shall be signed and dated by the registering officer.

After completion of process of registration the registering officer shall endorse a certificate on the document with the word “Registered” together with number and details of storage of the document.  The certificate of registration has to be signed, dated and sealed by the registering officer (Sec. 60).