REGISTRATION OF DOCUMENTS OPPOSED BY PUBLIC POLICY­­

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

Can a registration of a document be claimed as a matter of right? Indian Registration Act, 1908, has under section17 prescribed certain documents which are compulsorily registerable and under section 18, the documents, the registration of which is optional. As such can anybody claim as a matter of right, registration of a document which is compulsory under section17 of Indian Registration Act 1908.Various States have amended the main Registration Act and have framed rules there under.

Karnataka Government has inserted a new section 22-A, with effect from 23.10.1976 which empowers the State Government to prohibit the registration of certain documents as opposed to public policy, by notifying in official gazettee,and the registering officers shall refuse to register any such document.

Government of Karnataka through Revenue Secretariat Notification No. RD/141 MUNOMV/2005, date.23/04/2005, has in exercise of powers conferred under section 22-A of Registration Act as amended by Karnataka Act 55 of 1976 has declared registration of following documents as opposed to the public policy. This is effective from 06/05/2005.

1. Site with or without building in agricultural land which is not converted for non-agricultural purpose under section 95 of Karnataka Land Revenue Act 1964.

2. Site described as Gramathana site (form no. 9, 10) or other site declared under form no.19 under rules framed under Karnataka  Municipality Act 1964, but not actually converted as site.

3. Site on a revenue land described as Gramathana Site or other site or a site with a building on which no layout plan is approved and a release certificate is issued from local planning authority like BDA, BMRDA, BIAAPA, BMIC.

4. Site on a revenue land described as Gramathana site or other site,flats, industrial site, commercial site, without requisite permission under section 79A and 7B read with section 109 of Karnataka Land Reforms Act.

Thus the transfer of only the following properties are permitted.

a)Properties falling under Bruhat Bangalore Mahanagara Palike.

b)Properties allotted by BDA

c)Properties in BDA approved layouts

d)Properties in layouts approved by other local planning authorities like BMRDA, BlAAPA, BMIC etc.

In the preamble the notification, it is stated that many properties are registered based on bogus and fabricated documents which do not pass on legally perfect title to the purchaser.In many cases, the agricultural land is transferred by registration as non-agricultural land without actually converting it to a non-agricultural purpose in accordance with Section 95 of Karnataka Land Revenue Act 1964 and Karnataka Land Grant Rules 1989. This has led to haphazard growth of Bangalore and other cities.

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NRI HOUSING AND FINANCE IN INDIA

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Buying a house is not difficult for NRIs any more as the NRI Housing Loan makes the property investment a lot more convenient. Any individual staying abroad for employment or for carrying on business or vocation outside India or for any other purpose in circumstances indicating an indefinite period of stay abroad are eligible for NRI Housing loan. Apart from that, government servants posted abroad on duty with the Indian missions or deputed abroad on assignments with foreign Governments or regional! International agencies are also entitled to these loans.

NRI Housing loan is offered by some of the premier financial institutions and banking in India such as ANZ Grind lays Bank, ICICI Bank, HDFC, HUDCO, CITIBANK,LIC etc.As an NRI, you can avail a maximum loan of Rs.1,00,00,000/- or 85% of the cost of the property including the cost of land, whichever is lower. The rate of interest will vary from 11.25% to 14.25% per annum depending on the financial institution.At the time of making application for the loan a processing fee is payable which will vary between 1% to 2% of the loan amount applied for depending on the institution.

The amount of loan to be borrowed will depend upon a person's repaying capacity.To arrive at the repaying capacity banks do take into consideration factors such as income, age,qualifications, work experience, number of dependants, spouse's income, assets, liabilities, stability and continuity of occupation,alternate employment prospects when the concerned person returns to India and savings history.

While applying for home loans in India the following documents are to be submitted along with the application:

1.Employment/Residency related documents

· Employment contract

· Latest salary slip.

· Latest work permit.

· Identity card issued by the present employer.

· Visa stamp on the passport.

· Continuous Discharge Certificate (if applicable).

· Overseas Bank Account Statement for the last few months.

2.   Property Related Documents

·  Receipts for payments made for purchase of the dwelling unit.

· Copy of approved drawings for the proposed construction/purchase/ extension.

·  Agreement for sale/sale deed.

· A detailed cost estimate from Architect/Engineer for property to be purchased/ constructed / extended Allotment letter.

Once the loan is sanctioned,the period of repayment of the loan is determined which normally falls in the range of three to ten years.Loan can be repaid through Equated Monthly Installments(EMIs) comprising principal and interest.EMI payments can be made through post dated cheques from your Non-Resident(External)Account/Non-Resident (Ordinary)Account in India.

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HOME MORTGAGE APPLICATION

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

Nowadays, a home mortgage is a clever plan to get your very own house.Even people who can afford to buy a property through their own cash tend to adopt to get loans from banks upon home mortgage.Home mortgage is considered to be the most important stage in property ownership.Some of the business oriented people are engaged in property mortgage for business expansion purposes.

In home mortgage, you will not have to spend a big sum from your pocket instantly. All you will have to do is to apply for loan, complete the formalities of the bank and get the loan from the bank on the basis of your economic stability.You must be present at the time the bank/lender comes to talk to you or contacts you.In submitting paper work, a completed accurate information may cause an immediate approval of your application.The Bank/lenders may do an interview,be truthful to them in giving all the financial information they need and even the personal information as well.A broker/agent may help you in gathering the entire required documents. After you have completely settled the amount due to your bank or financial institution,you will become the absolute owner of the house.

Here are some of the requirements you need to comply for getting home loan: 

Application Form:

The first step is to obtain a loan application form from the bank.The application form requires to be filled up completely and to be submitted to the bank along with your photo.

Permanent Address :

You have to give the address where you are residing.Include your alternative addresses if there are any, and if necessary, give your parents address too. The Bank or the lenders need these addresses for the transactions in case you are not reachable.

Social security and account numbers:

Submit a copy of your social security card.Your account numbers in other bank must not have blacklist history.For this reason, you must submit a statement of account wherein the status of your current account appears including your previous accounts for the past 2 years.

Annual Income Form:

This will help the Banks or lenders to determine your financial stability for purposes of quantifying the loan amount to be sanctioned.

Recent Legal Forms:

These forms includes Tax returns copy for the past 2 years, and legal documents whereby proof of termination of the past financial history,like foreclosure, bankruptcy and sales.

Sale agreement:

This contract should be signed by the Seller and the Buyer. This is a very important document which you may use in further transactions.

These documents are to be made available to the banks for sanction of housing loan. Banks and lenders seek for a qualified and trusted loan. All types of loans require these documents to record the relevant information in an orderly manner.You can apply on- line for home loan upon the mortgage of your property.There are several banks and lending institutions which offer various types of loans upon mortgage of your property even on internet since applications can be submitted even through internet.This method is beneficial and handy for borrowers who are busy.

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ROLE OF ENCUMBRANCE CERTIFICATE IN PROPERTY DEALINGS

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

Public in general frequently use encumbrance certificates in property transactions as the sole evidence to ascertain free and marketable title of the vendor.They are under the impression that the encumbrance certificate would disclose all the charges created on a property.But, it is not so.There may be several types of encumbrances, which will not be reflected in the encumbrance certificate. The application for encumbrance certificate is to be submitted at the jurisdictional Sub- Registrar's office under whose jurisdiction the property falls.The prescribed application form for obtaining an encumbrance certificate is Form No.22.

In order to get a proper and valid certificate, it is very important that the applicant should clearly mention in the application the period for which the encumbrance certificate is required,detailed description of the property, its measurements, boundaries, and the person who is applying. The encumbrance year commences from April 1st of a calendar and closes on March 31st of the next calendar year. Any fraction of the encumbrance year attracts fee for the full year. The fee prescribed is for single property and per individual application form.

Form No.15 or 16

The encumbrance certificate is issued either in Form No. 15 or 16. If the property does not have any encumbrance during the particular period for which encumbrance certificate is sought, then encumbrance certificate in Form No.16 will be issued i.e., Certificate of Nil Encumbrance will be issued. If the property has any encumbrance registered during the particular period for which encumbrance certificate is sought, then encumbrance certificate in Form No.15 will be issued.The certificate in Form No.15 discloses the documents registered in respect of the property,the parties to the deed, nature of encumbrance, amounts secured or transacted in the said deed, registered number of the document, book no.,volume no., and date.

The encumbrance certificate issued always will be in the language in which indexes are prepared in particular Registrar or Sub-Registrar's Office.If the indexes are not in English and the applicant wants certificate to be prepared in English, then the request of the applicant will be complied with to the extent possible. In Karnataka, now computerized encumbrance certificates are issued.

There is a provision for inspection of the records of the property maintained in the office of the Sub-registrar by the applicant himself/herself. In case the applicant prefers not to exercise this authority and merely submits application for issue of encumbrance certificate for a particular period, the department would be issuing the encumbrance certificate with due diligence and care. However,there is a rider clause in the computerized encumbrance certificate to state that the department shall not take responsibility for mistakes, if any, in the encumbrance certificate.

Limitation

Though an encumbrance certificates discloses all registered encumbrances on a particular property during a specified period, it has certain limitations. The Encumbrances disclosed in the certificate are for the period for which certificate is issued and encumbrance created during the period prior this period or during the later period are not reflected in the certificate.The encumbrance certificate is issued in respect of the property as detailed in the application form and not as per the registered documents of the property. Thus, if the description of the property described in the application does not match with the details of the property as shown in the registered documents, then details of such documents are not reflected in the encumbrance certificate.

The encumbrance certificate discloses the encumbrances created by documents which are registered in a particular office.In other words,it is the extract of the property register maintained in the Sub-Registrar's office and the document which is not registered and where under any charge is created does not get reflected in the encumbrance certificate.Further, there are certain documents for which registration is not compulsory but registration is optional. These documents include testamentary documents, document creating lease for a period of not exceeding one year,any decree or order of a court, or award. Since these transactions are not compulsorily register able, they do not find any mention in encumbrance certificate.

Agricultural Land

Agricultural lands are generally inherited.The change of ownership is recorded in revenue records, mutation register of village panchayath.Such changes of ownership are not registered. As such encumbrance certificates do not reflect the true ownership of the agricultural land.R.T.C,Mutation extracts give complete details of change of ownership, details of possession, conversion of agricultural land to non-agricultural purposes. Therefore, it is better to insist and rely on RTC and mutation extracts in case of agricultural lands in addition to the encumbrance certificate.

It is always advisable to obtain encumbrance certificates for a minimum period of 43 years and to verify whether the encumbrance certificate is issued for the complete period of your requirement and whether it contains the boundaries and the measurements of the property,signature of registering authority and the office stamp apart from disclosing the names and the signature of the persons who have searched and verified the records of the property.It is also advisable for the prospective purchaser of property to inspect the property personally and to verify and confirm that the original title documents are available with the vendor. In addition to this, some additional safeguards like paper notification, searching in jurisdictional courts for any pending cases may also be undertaken to protect the interests of the purchaser.

It is advised that for tracing the clear and marketable title of the property, the purchasers should not mainly rely on the encumbrance certificate issued by the Registrar or Sub-Registrar's office,but has to examine all other relevant documents, such as title deeds, latest khata certificate, khata extract, and tax paid receipts.

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EXEMPTION FOR PERSONAL APPEARANCE BEFORE SUB REGISTRARS IN KARNATAKA

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

The following is the list of persons who are exempted from personal appearance before the Registering Authorities under Sec.88(1) of the Registration Act 1908 and other connected Acts:

1.Any officer of Government.

2.Any administrator general, official trustee or official assignee.

3.The sheriff, receiver or registrar of High Court.

4.The holder of such other public office as may be specified in a notification in the official Gazette issued in that behalf by the State Government.

5.As per section 39 of Karnataka State Co-operative Societies Act, 1959 any member of the Committee, Secretary or other officer of Co- operative Department or Society.

6.Managing director and vice chairman the Mysore Iron and Steel Limited, Bhadravathi to be a public office.

7.Comptroller of University of Agricultural Science, Bangalore.

8.Executive officer TTD,Tirupathi is an officer of the Govt.Hence he is exempted from personal appearance under section 88(1) (a).

9.The Regional Provident Fund Commissioner in Karnataka.

10.Managing Director, Karnataka Scheduled Caste and Scheduled Tribes Development Corporation, Bangalore.

11.Chairman or Secretary, City improvement Trust Board Mysore or and all Executive Engineers (Electrical) of all Divisions of KEB, Bangalore.

12.The Chairman, Improvement Trust Board, Davanagere.

13.Divisional Manager LIC of India.

14.Chairman, New Mangalore Port Trust, Panambur.

15.Managers of Nationalized Banks as the holder of public offices.

16.Chairman and/or Managing Director Karnataka Agro Industries Corporation Limited, Hebbal, Bangalore.

17.Chairman of all the Improvement Trust Boards constituted in the State.

18.Managing Director, Karnataka Power Corporation, Bangalore.

19.Registrar of Indian Institute of Science, Bangalore.

20.District Managers, Food Corporation of India.

21.Chief Administrative Office,National Institute of Mental Health and Neuro Science, Bangalore.

22.Presidents of all the municipality and town municipalities in the State Karnataka for the purpose of the said sub-section.

23.Administrative Officer,Regional College of Education,Mysore in connection with execution of registration of Mortgage Deeds by the employee of Regional College of Education,Mysore while drawing advances like house building, advance etc.

24.Managers of Regional Rural Banks.

25.Following Officers of the KIADB as the holders of public offices for the purposes of the said section:

a)   Secretary

b)   Law Officer

c)   All the Assistant Secretaries

d)   All the Deputy Development Officers.

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LEGAL TERMS IN PROPERTY DOCUMENT

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

A single word can change the nature or understanding of the transaction and are several cases and matters which have been decided on the basis of the wordings employed in the document where the interpretation of words, phrases and terms by the courts have decided the fate of the parties.

You may have come across terms like "Indenture of Sale","Indenture of Lease", etc. One may be wondering as to what is meant by indenture and how it is different from deed.Formerly, an indenture meant a document cut with serrated edges  which will fit with the counterpart of the document.In other words, the copies so cut had indented edges which made forgery difficult.Now, though the terminology is still used, this type of document is practically nonexistent. At present, indentures can be taken to mean documents,usually in the nature of a contract, which are signed by both or all parties concerned.

Similarly, a power of Attorney can start with wordings like "Know All Men by these Presents".The term "presents" indicates the "Deed" itself.Further, one may come across terms like "one or more lots". Originally, the term "lot" or "lots" was used as indicating a parcel of land which was usually divided."Lots" also meant contiguous parcels of lands.You may find this in usages like "parking lot", etc.

The term "real estate" itself has come to mean immovable property. It is used synonymous for lands, tenements, hereditaments and the rights relating to immovable property as distinguished against personal properties like goods and other properties which are basically not immovable properties.

The word "Tenements" signifies properties that can be held by a person which are of a permanent nature. It also means a house and other types of immovable properties. The word "Hereditaments" indicates any property which can be inherited and includes movable and personal property also.

The word "appurtenant" means pertaining to or belonging to and is used in such sense in deeds and documents.The word "Appurtenances" used in conveyances like Sale Deed, etc. means an interest or a right in a property incidental to the principal right which is more valuable and important. The word "Easement" in the Sale Deed can be stated to be the right or a privilege that a person has on the property of another. It also includes a right to enjoy a profit arising out of an immovable property.Usually, this is used in the context of indicating a right of way, pathways, a right of air, a right of tight passing through, etc.

The word "License" used in a deed indicates grant of a right or an authority to do something in the immovable property, which right or authority, but for the authorization, will be illegal or wrongful or unlawful. It is basically in the nature of permission. This does not create an interest in the immovable property, but creates a right or a privilege which is usually revocable.When acting under the right or privilege, the person exercising the right or privilege, known as "Licensee" enjoys immunity for the acts done.

The term "Metes and Bounds" appearing in deeds would indicate description or details of the boundary lines of the land, together with terminal points and angles.The term "Admeasurement" or "Admeasuring"is employed where the actual extent of the length and breadth of the property is given.

There are several other terms and words which may appear innocuous and apparently repetitive. It is possible that there is a sense of discomfort in not knowing exactly what the words or terms mean when you are to sign certain documents since the words and terms as understood could be totally different than intended in the document. Presumption of vague notions may land you in trouble. If you do not understand a particular usage, it is better to check up with your advocate or a person having knowledge of these terms and clear all doubts.  

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THE INCOME TAX OMBUDSMAN GUIDELINES

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The Income tax Ombudsman Guidelines are introduced with the objective of enabling the resolution of complaints relating to public grievances against the Income Tax Department and to facilitate settlement of such complaints.

The Ombudsman shall be independent of the jurisdiction ofthe Income Tax Department.The offices of Income Tax Ombudsman shall initially be located at NewDelhi,Mumbai,Chennai,Kolkata,Bangalore,Hyderabad,Ahmedabad,Pune,Lucknow,Bhopal and Kochi.

Grounds on which complaint can be filed:

A complaint on anyone or more of the following grounds alleging deficiency in the working of the Income-tax Department may be filed with the Ombudsman:

(a)Delay in issue of refunds beyond time limits prescribed by law or under the relevant instructions issued from time to time by the Central Board of Direct Taxes.

(b)Sending of envelopes without refund vouchers in cases of refund.

(c) Non adherence to the principle of 'First Come First Served' in sending refunds.

(d) Non acknowledgement of letters or documents sent to the department.

(e)Non up-dating of demand and other registers au leading to harassment of assesses.

(f)Lack of transparency in identifying cases for scrutiny and non communication of reasons for selecting COl the case for scrutiny.

(g)Delay in disposing cases of interest waiver.

(h)Delay in disposal of rectification applications.

(i) Delay in giving effect to the appellate orders.

(j)Delay in release of seized books of account and assets, after the proceedings under the Income-tax Act in respect of the years for which the books of account or other documents are relevant are completed.

(k) Delay in allotment of permanent account number (PAN).

(l) Non credit of tax paid, including tax deducted attake source.

(m)Non adherence to prescribed working hours Income Tax officials.

(n) Unwarranted rude behavior of Income Tax officials with assesses.

(o) Any other matter relating to violation of the administrative instructions and circulars issued by the Central Board of Direct Taxes in relation to Income-tax administration.

Procedure for filing the complaint:

Any person, who has a grievance against the Income-tax Department, may, himself or through his registers authorized representative, make a complaint against the Income-tax official in writing to the Ombudsman.

(a)The complaint shall be duly signed by the complainant and his authorized representative,if any,and shall state clearly the name and address of the complainant,the name of the office and official of the Income-tax Department against whom the complaint is made, the facts giving rise to the complaint supported by documents, if any, relied on by the complainant and the relief sought from the Ombudsman.

 (b)A complaint made through electronic means shall also be accepted by the Ombudsman and a print out of such complaint shall be taken on the record of the Ombudsman.

(c)A print out of the complaint made through electronic means shall be signed by the complainant at the earliest possible opportunity before the Ombudsman takes steps for conciliation or settlement.

(d)The signed printout shall be deemed to be the complaint and it shall relate back to the date on which the complaint was made through electronic means.

No complaint to the Ombudsman shall be kept pending unless:-

(a)The complainant had, before making a complaint to the Ombudsman, made a written representation to the Income Tax authority superior to the one complained against and either such authority had rejected the complaint or the complainant had not received any reply within a period of one month after such authority had received his representation or the complainant is not satisfied with the reply given to him by such authority.

(b)The complaint is made not later than one year after the complainant has received the reply of the department to his representation or, in case, where no reply is received, not later than one year and one month after the representation to the Income Tax Authority.

(c)The complaint is not in respect of the same subject matter which was settled through the Office of the Ombudsman in any previous proceedings whether or not received from the same complainant or along with anyone or more complainants or anyone or more of the parties concerned with the subject matter.

(d) The complaint is not frivolous or vexatious innature.

No complaint shall be made to the Income-tax Ombudsman on an issue which has been or is the subject matter of any proceeding in an appeal, revision, reference or writ before any Income-tax Authority or Appellate Authority or Tribunal or Court.

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