Questions

Property Rights

What is meant by the term Property?

The term ‘Property’ has not been explicitly defined in any Act and is used in its widest possible sense. Property includes not only physical objects but also the rights and interests that arises from the physical object. Eg. A right to obtain shares in a company, an actionable claim are also treated as property under law.

What is a Joint Hindu Family/Hindu Undivided Family as per the law?

A joint Hindu Family consists of a group of relatives lineally descended from a common ancestor, and includes their wives and unmarried daughters.

What is a Joint Hindu Family Property?

Property inherited by a Hindu from his father, father’s father or father’s father’s father is a Joint Hindu Family Property. If the property is self-acquired or inherited from any other relative, it is not a Joint Family Property.

What is a Coparcenary and who all are Coparceners?

A coparcenary is one who acquires an interest in Hindu Joint Family property by birth. These are the sons, grandsons and great grandsons of the holder of the property. From 2005 onwards, daughters of coparceners were also granted the status of coparceners along with the sons of the coparceners.

What do we mean by daughters being coparceners as well?

According to the 2005 law, daughters are also made coparcener, which means that they also have an interest in the Hindu Joint Family property by birth. She is treated on par with sons when it comes to interest in Joint Family property.

Can a Coparcener sell or dispose off his right in the Coparcenary property?

A Coparcener can dispose his right to a third party. The right of the third party along with the rest of the family is limited.

 

Who can seek a partition ?

Any coparcener can, at any time, ask for partition. However, if only one of the coparcener wants partition, the other members continue being a part of a Joint Hindu family.

What is the difference between self-acquired & ancestral properties ?

Property inherited by a Hindu from his father, father’s father or father’s father’s father, is ancestral property. Property inherited from any other relative or self-acquired property is called separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great grandsons, they become coparceners along with him by birth.

Who is a Karta ? What are his rights & obligations?

The senior most male member is called Karta. The function of the Karta is to manage the joint family property. Karta has many powers and obligations with respect to the management and representation of the Joint Family property. Karta can also alienate the property if there is any legal necessity or for the benefit of the estate. However such alienation can be challenged by the other coparceners as not being for the benefit of the estate.

What is sale of property?

Sale of property is when the ownership of the property is transferred in return for a price. Price may be paid or promised to be paid in entirety or partly.

The property is said to be delivered only when the seller gives the possession of the said property to the buyer or any other person specified by the buyer.

What do you mean by conveyance?

The legal process of transferring property from one person to another is called conveyance. The ownership or the legal title of the property is shifted from one person to another. The buyer of the property should ensure that he has good and marketable title when the property is being purchased.

Is it necessary to get the sale of any immovable property registered?

In case of immovable property, if a sale is worth more than hundred rupees, it must be registered by following the procedure as laid out in the Registration Act, 1908. If the property is worth less than hundred rupees, registration is left to the discretion of the parties. In case it is an intangible property, registration is a must.

What is meant by contract for sale?

A contract for sale is an agreement where the parties agree that the sale of any property shall take place in accordance with the terms and conditions of that contract. A contract is one that fulfills the basic requirement of offer, acceptance and consideration.

What is encumbrance on a property?

An encumbrance is a right or claim on a property that diminishes its value but does not affect its transferability.

What are the rights of a buyer?

The buyer has a right to examine and therefore must examine all the documents of title relating to the property, which the seller possesses. The buyer can also seek answers to all the relevant questions with respect to the property in question. The buyer can also amend the contract of sale in consent with the seller so that the terms of the contract suit his needs.

What if there are material defects in the property which the buyer could not have discovered with ordinary care?

As per the law of property, the seller is bound to disclose any material defect in the property or title that the buyer is not aware of or cannot discover with ordinary care. The seller must however himself be informed of such defect in the property or title of such property.

When can the buyer claim the possession of property?

Once the buyer makes payment as per the price fixed or fulfills the obligation as stipulated in the sale contract, the buyer can tender a request for possession and the seller must execute a proper conveyance at a proper time and place. The seller has to also provide the buyer with the documents relating to title of property that he within his powers to provide. If the whole property is sold to many buyers, then the buyer that has the greatest value in the property gets to keep such documents. The seller/buyer having greatest value is expected to keep the documents safe and uncancelled and furnish the same on a reasonable request from other buyers. The seller/buyer having the greatest value in the property will be exempted of liability if the said documents are destroyed due to fire or any inevitable accident.

What are the duties of the seller from the date of contract for sale and before the delivery of property?

The seller must between the date of the contract of sale and the delivery of the property, take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents. The seller is also bound to pay all the rent and other charges of any kind like encumbrances on such property up to the date of the sale. However, if the property is sold subject to encumbrances then the seller is bound to discharge the same.

What rights is the seller deemed to have when the seller professes to transfer the property to the buyer?

When the seller professes to transfer the property to the buyer, he is deemed to have the right to transfer the interest in the property to the buyer. However, if the property is transferred to the buyer not by the seller but by a person in whom the seller has placed complete confidence with regards the transaction (fiduciary relationship), then that person is deemed to have contracted with the buyer that the seller has not done any act to stop him from making such a transfer and that the property is not encumbered.

What are the most important things a buyer must carefully examine while purchasing a property?

The buyer must examine the original documents of the property in question. The buyer must ensure that the property is free from all encumbrances and get a certificate registered in this regard from the office of the sub-registry. The buyer must examine the documents related to power of attorney (POA) if applicable and ensure that the POA was in force during the signing of the sale deed. The buyer must ensure that the seller actually has the right to transfer the property and therefore must figure out the means by which the seller has acquired the property. The said transaction of sale must not be against public policy. It is mentioned under Section 22A of the Registration Act, 1908. If it is so, the document would not be registered. The buyer must ensure that the property is free from all kinds of disputes and litigations. If the property to be purchased was declared to be Scheduled area then the requisite permission from the government authorities must be obtained before any sale deed is executed.

What is property registration?

Property registration refers to registration for the purpose of documenting changes in ownership and transactions regarding immovable property with the appropriate authority.

Why should property be registered? ‘

Registration of property results in you becoming the lawful owner of the property, with complete responsibility of it. It helps in dispute redressal and mitigation of any chances of fraud. Further, registration of property is compulsory under section 17 of the Indian Registration Act, 1908.

Who can submit the document for registration?

A deed can be submitted for registration by any of the parties, claiming or executing. However, the executing party must be present at the time of the signing or execution of the deed.

Who should be contacted for property registration?

The Sub-Registrar’s office, which has jurisdiction over the property, should be contacted. Otherwise the District Registrar of your district can also be approached. In Bangalore Urban district, you can get in touch with the Office of the Inspector General of Registration.

What are the timings during which registration can be done?

Registration can be done at all times when the office of the Registrars and Sub-registrars is open. Sub-Registrars can stop accepting the documents one hour before closing time if he has sufficient work with the documents already submitted. In cases of emergency, documents can be submitted on the payment of a fee one hour before sunrise, one hour after sunset and on holidays.

Apart from documents, what else is required?

Two passport-sized photographs of the person submitting the document are required.

What is the time period, if any, within which registration must be done?

Documents must be registered within a period of four months after execution (signatures) is done. If the signing or execution is done outside India, the four months are counted from the date the receipt reaches India.

Registration can be done even after four months by paying a penalty equal to maximum ten times the registration fees but only if the District Registrar gives permission. Sub- Registrar can accept the document within eight months. But it cannot be submitted for registration after that. This is explained in Section 52 of the Karnataka Registration Rules, 1965.

Which language is deemed as commonly used in Bangalore registration office?

Kannada and English.

What if the document is in a language that the Registering Officer can’t understand?

In such a case, you are required to sign and submit a translated copy along with the original document. The translated copy should be in Kannada or English.

Which stamp should be attached?

If the executant, that is the person signing, is in doubt about which stamp to attach, he can consult the Registering Officer but authentic opinion can be acquired by applying to the Deputy Commissioner under section 31 of the Indian Stamp Act, 1899 or the Karnataka Stamp Act, 1957.

Can a submitted document be withdrawn?

It is upon the discretion of the registering officer to permit for withdrawal of the document before the completion of the registration process. A written request has to be made by the party, who had submitted the document. A maximum amount equal to fifty percent of the registration fee is refundable, depending on other expenses like stamp duty, etc.

30. How can property be registered online?

An application needs to be downloaded online or obtained from the concerned authority, usually the Sub- Registrar of the area. After verification of details, the deed gets drawn and registration is done. This is called the computerized Land and Property Registration system.

What if the property is not registered?

If the property is not registered, then according to law, you do not have any transaction rights over it. You will not be recognized even as the owner of the property.

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