(Bangalore property|apartments|flats|lands for sale in Bangalore)
Everyone dreams to own some shelter of
his/her own during his/her life time.But, unless the property purchaser adopts safeguards while finalizing
the deal with the vendor, he/she is most likely to land in uncalled for
litigation, loss of time and money. For peaceful possession and enjoyment of
the property by the purchaser,the property
should have clear marketable title free from encumbrances preferably
with vacant possession.
To know whether the property is free from
litigation and the vendor has a clear and marketable title of the property, it
is necessary to examine the title deeds
of the property very scrupulously. Ownership of the vendor can be traced from
the title deeds and revenue records.Mere tracing of the title on the basis of
the records available would not suffice.Examination of the genuineness of the
records, identification of the property, verifying of all the original
documents with the records of the
concerned Governmental authorities, issuing notification in newspaper
and physical possession of the title of the property are some of the important
functions required to be performed while
scrutinizing the property documents.
The below mentioned safeguards may to a
certain extent protect the interest of the purchasers:
The first and foremost exercise the purchaser
or his advocate has to undertake before entering into any agreement with the
vendor is to scrutinize the title deeds of the property under consideration.Since it is the duty and responsibility
of the purchaser's advocate to safeguard the interest of his client, he shall
have to minutely scrutinize the title deeds of the property to ascertain the
marketable title and genuineness of the documents.While so doing,the advocate
shall examine the risk involved in the transaction and guide his client
suitably.
Origin
of the Property
Tracing of the origin of the property is a very important
step in the scrutiny of property documents.Origin of the property is also called
“Root of Title”. It is the safest way to
determine the origin of the property and trace its marketable title. It is
necessary to examine the title of the property for a minimum period of 42 years.
In cases of adverse possession against individuals or conflicting claims, other
than mortgage, documents covering a minimum period of more than 12 years is
necessarily to be checked. As regards
the period of limitation against the Government, documents covering a minimum
period of 30 years must be checked. If a
person is enjoying the property for more than 30 years, he will get title by
adverse possession against the Government under the Limitation Act, 1963. As
per Section 90 of the Indian Evidence Act 1872, the document executed 30 years
before is presumed to be valid.These
are all the general principles. However, the number years referred to
above would vary depending upon the documents made available
for scrutiny.
Subsequent
Transfers
After ascertaining the origin of the
property, there should be a methodical examination of subsequent events of
transfer and other transactions relating
to the property in a sequential order.Here, the purchaser's advocate has to
very carefully look into all aspects from
legal angle as to how the property was transferred from the previous
owners till it reached the hands of the
present owner.The transfer may be by possession, inheritance,
settlement, will, sale, mortgage, release, gift etc. The advocate has to
carefully examine these deeds and other supporting documents like revenue and other property records to get a clear
picture as to the valid marketable title
of the vendor. Verification of identity of the parties and their family connections,
ascertainment of existence of any court litigation/proceedings pending before
any court of law or other legal forums
or authorities including revenue authorities in respect of the property under
consideration is also necessary.
Statutory
Clearance
All the statutory clearance required for an
effective transfer of the property in favor of the purchaser must be obtained
before executing the Deed of Conveyance.The purchaser must be apprised of the need of obtaining statutory clearances
from various authorities like revenue, land reforms, income tax, etc., for an effective transfer of the property in
his favor.
Present
Status
Present status of the property is the most
important aspect to be looked into before purchasing the property.The advocate who has experience in property documentation can easily
find out as to whether the present owner has valid and marketable title over
the property or not.For this purpose he shall examine the title deeds and other supporting documents
available with the vendor. At the same time, the advocate shall also find
out as to the existence of the legal
heirs of the vendor.If there exists
legal heirs and if they are major in
age, the advocate shall ensure the legal heirs presence while executing the Deed of Conveyance.
If they are minors, the vendor has to get the permission from the court before
executing the Deed of Conveyance.
In some cases the vendor may conceal the fact
of existence of legal heirs.In such cases, the advocate must ask the vendor to
produce either the succession certificate or the family genealogical tree
issued by the revenue authority. If necessary he must see the family ration
card for practical clarification.
The advocate must find out in whose name the
Khatha stands, whether the khathedar possesses up-to-date tax paid receipt in
his name and up-to-date Encumbrance Certificate to establish his right, title and interest in the property. The advocate has to check the Encumbrance
Certificate covering a relevant period, generally from 12 years upto 43 years to ascertain whether
any charge is created on the property and the type of charge, and whether such
an encumbrance is presently subsisting or not.Municipal and other revenue
authorities to maintain records from which it could be ascertained as to who is
presently in possession of the property according
to their records, what is the amount of tax payable on the property and upto
what period tax has been paid.
Genuineness
of documents
After thoroughly scrutinizing the property
documents, the purchaser or his advocate has to cross check
all documents furnished by the vendor with the records of the concerned
departments to ensure that the documents
produced by the vendor are genuine; that
they are originated from the concerned departments and that they are not fake.
In addition, the advocate has to find out from the department whether there is
any notification or proceedings against the property or the present owner.In
the case of buildings, it must be ensured that demolition notice has not been served on the vendor.
Identity
of the property
The identity of the property is to be carried
out by visiting the spot. The measurement of land mentioned in the documents
must tally with actual physical measurement. It must also be ensured that there
exists no encroachment of the property. In case there exists encroachment, the
measurement of the available land must be recorded and this must be mentioned
in the Deed of Conveyance.The boundaries as shown in the schedule of the
property must be physically verified on the spot. Also, the purchaser may make
enquiries tactfully with the adjacent property owners about the ownership of
the property he is proposing to buy.
Paper
Notification
There may be some grey areas in the property
title of the vendor, such as pending litigations, agreements entered into by the vendor with others, claims of
legal heirs, etc., on account of which
even after examining the various documents, the Advocate may not be able to
find out whether the property is truly and completely free from any claim. Therefore, the paper notification
could help the purchaser to get response
from the genuinely affected party which
in turn would help the purchaser to know the clear and marketable title of the
vendor.
Though paper notification is optional, it is
always advisable to notify in a leading local newspaper about the buyer's intention to purchase a particular property to safeguard the interest of the
purchaser.
Physical
Possession
In the case of a vacant site, the purchaser
may,with the permission of the vendor fence the property with barbed wire or
he may construct a compound wall and put a signboard before purchase of the
property to indicate ownership of the property.
After entering into an agreement to sell, the
purchaser need not close his eyes shut and proceed to finalize the deal.
Therefore, even after entering into an “Agreement to Sell”, the purchaser
must continue to make enquirers to make
doubly sure of the valid and marketable title of the vendor. Upon such enquirers if it is found that there are defects in the title of the property, which are not discernible in the
ordinary course examination of documents, the purchaser could withdraw from the
transaction even when there exists an agreement to sell. However, a mere
suspicion of fraud that cannot be proved will not make the title doubtful and
the purchaser cannot disapprove the
title on that ground.
A reading of the above would go to show that
tracing of title of property is a
specialized job.Services of well
experienced advocates in property documentation would immensely help the
purchaser in his peaceful possession and
enjoyment of property free from
litigation.
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