Scrutiny of
property documents is a very technical job which only experts in the matter can
correctly carry out.If scrutiny of property documents is not carried out in a
scientific way there is every likelihood of the purchaser being trapped into
litigation.
The first and foremost thing to be considered by a prospective buyer of an immovable
property before finalization of any deal is to get scrutinized the property
documents to know about the marketable title of the property, genuineness of
the document, enforceability of the title and whether the provisions of the
laws, rules and regulations of the revenue authorities are complied with.
Origin of the property, flow of title and present status of the property are to
be verified in a systematic manner.
On being
satisfied with the title of the property, the purchaser can enter into a sale
agreement with the vendor.It may be noted that the property transactions are
not executed through oral agreements or understandings.These transactions are
executed underwritten documents which require compulsory registration.While drafting property documents, be it a sale agreement, sale deed, gift deed,
mortgage deed, will, etc., every minute care is to be taken to protect the
interests of the parties which in turn requires considering and dealing with
the various aspects of the matter to bring out all the relevant information
leaving no scope for ambiguity leading to interpretation and disputing.Failure
to adhere to this golden principle would lead to misunderstanding between the
parties. The fact that a large number of cases relating to property matters are
filed for adjudication of the courts would itself go to show that there is a
great scope for improvement in the scrutiny and drafting of property documents.
Disputable Issues
Precisely,
it is not possible to categorically state as to the type of disputes which
could arise from out of a property transaction - It may relate to the valid
title of the vendor, time schedule for payment of sale consideration, handing
over possession of the property,non-compliance of the conditions detailed in
the agreement to sell by either of the parties to the transaction, share of a
coparcener on partition of HUF, interpretation of the recitals of a will, and
the like. Failure on your part to take care of tracing the title of the
property in a proper way will lead to various types of litigation.
When
disputes arise, at the first instance people try to resolve their disputes
amicably and when they fail to reach an amicable settlement they knock the
doors of the competent court for resolving the disputes.Readers may
kindly note that when once the matter becomes sub judice, it will take very
long period to get the disputes resolved by the courts and the litigants are
generally prevented to deal with the property without the permission of the
concerned court when the matter is sub judice.
There could
be different type of relief sought from a court of law. The relief may be for
specific performance,restraining the opposite party from interfering with the
peaceful possession and enjoyment of the property, compensation for the loss,
recovery suits, eviction suits, interpretation of a Will, declaratory suits,
partition of joint family property and so on.
Types of suits / action
When the
vendor of a property though initially has agreed to sell his property to the
purchaser at an agreed sale consideration backs out of his commitment, the
purchaser can file a suit against the vendor for specific performance of the
agreement and the court on being satisfied with your claim, as a purchaser, may adjudicate and pass an order for execution of the sale deed in your favour. On
failure of the vendor to transfer the property in your name despite the court's
order, you may file an execution petition. On the basis of the execution
petition, the court will take necessary steps to get the property registered in
your name as per court's order.
Declaratory suits
Under
certain circumstances, when your title to the property is challenged or found
to be doubtful or defective, it is necessary for you to get an order from the
court on your title for which purpose you may need to file a declaratory suit
in a court of law.
Injunction
Filing suit for permanent injunction restraining the opposite party from interfering with
your peaceful possession and enjoyment of the property may be necessary when
your property is under the threat of interference by some third party.
Partition Suit
Similarly,
when you are a co-owner of a property and when you desire to get your share in
the property to be enjoyed by you separately and independently, you may have to
file a suit for partition.
Money Suit
For
realization of the money lent on the security of an immovable property by way
of mortgage, you may have to file a suit for recovery of the money due from the
Mortgagor and on his failure you may have to proceed, according to law, for
realization of the money due by selling the property mortgaged.
Disputes before quasi-judicial
authorities
Different
types of litigations concerning the land revenue, land acquisitions, title
documents etc., are heard and disposed of by several quasi judicial authority such as Tahsildars,Assistant Commissioners,Deputy Commissioners, Survey
Settlement Commissioners.Therefore, knowledge of authority of these officers
would help you a lot in your property matters.
Disputes concerning stamp duty and
under valuation
District
registrars of Registration and the Inspector General of Registration adjudicate
the disputes concerning the stamp duty payable and under valuation of property.
In case you have any grievance with regard to the valuation and the payment of
stamp duty on your property transfer, you may approach these authorities for
remedy to your grievance.
Landlord and Tenant disputes
In respect of disputes between the landlord and tenant falling within the jurisdiction of
the Rent Controller, you may have to file petition only before the Rent
Controller for relief. The disputes may relate to non-payment of rent,
enhancement of rent, fixation of fair rent, eviction of the tenant, etc.
Criminal cases
To initiate
cause of action for forgery and fraud in property transactions, you may have to
file at the first instance a police complaint or file a complaint before the
Magistrate. Criminal courts have a different structure and if you lodge a
complaint, the State will prosecute the matter. In criminal matters, there is
no suit valuation.
Writ jurisdiction
You may invoke writ jurisdiction against the decisions of the Government affecting your
property rights by filing writ petition in the concerned High Court or in the
Supreme Court for appropriate relief.
The type of
legal remedy explained above is only illustrative and not exhaustive. In
addition to these remedies, there are other relief/remedies available to a
party.The relief is to be sought from a court of competent jurisdiction and
for this purpose having knowledge of the jurisdiction of various courts is
necessary. An experienced advocate dealing with property matters could render
very useful service in the matter who may guide you properly and protect you
from unnecessary litigations.
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