Property Law

1. How does a person acquire ownership of immovable property?
Ans. Such ways could include any of the following:
(i) By inheriting ancestral property.
(ii) Through a will.
(iii) Self acquisition like purchase etc.
(iv) By way of gift, trust, settlement deeds.
(v) Grant, sanad / Inam by the Government
(vi) Through decree of Court.

2. Which documents must be compulsorily registered?
1. Gift deed of immovable property.
2. Other non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
3. Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest;
4. Leases of immovable property from year or for any term exceeding one year, or reserving a yearly rent;
5. Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
6. The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A
259. How to successfully partition property?
Ans. a. If all the parties have share (common right) in the property partition can be affected. If partition is affected through an instrument such instrument must be compulsorily registered.
b. Oral partition affected through memorandum submitted to the concerned authorities need not be registered.
c. Stamp duty has to be paid in respect any kind of partition whether it is to be compulsorily registered or not.
d. Parties to the partition may agree to effect partition of unequal shares.

3. When there are two or more heirs, can one or two be made full owners by others taking money in lieu of their share?
Ans . a) Yes. Any of the co-owners can individually or collectively release his / their right in favour of one or more collectively as the case may be and make him / them full owner. This kind of release can be with or without payment of money.
b) Release can be made not only in case of inherited property but also in case of joint purchase/acquisition.

4. Define will?
Ans. A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

5. Who is capable of executing a will?
Ans . a) Any person above the age of 18 years and mentally sound may execute will, but a will made by fraud or coercion will not be valid. It must be voluntary.
b) Parents or guardians cannot execute will on behalf of minors or lunatics.
c) Attestation by minimum two independent witnesses. Beneficiary under a will should not sign as attesting witness.

6. Is it compulsory to register a will?
Ans . It is not compulsory to register. It is optional. But at the same time it is better to register the will. If original is lost a certified copy can be obtained from Sub-Registrar Office.

7. Where can the will be registered?
Ans. It can be registered in any office of the Sub Registrar in India having jurisdiction.

8. Is there any time limit to register a will?
Ans . There is no such time limit

9. Can a will be cancelled?
Ans. The testator can cancel his will at anytime during his lifetime.

10. Can a registered will be rectified or changed?
Ans If executant of a will wishes to rectify or add to will he may do so during his lifetime through a Codicil.

11. Can a will be registered even after death of testator?
Ans. Yes, claiming party under the will have to produce will, records relating to the death of the testator, witness and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register it.

12. Is the certified copy of a registered will available to anybody?
Ans . A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator.

13. How to keep contents of a will confidential?
Ans. A Will can be deposited in a sealed cover in office of the District Registrar. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so.

14. What are the duties and liabilities of buyers and sellers while purchasing a property?
Ans. Following is the duties and liabilities of buyers and sellers
Before sale
liabilities of seller Liabilities of purchaser
To inform defects in the property
To provide records of right
To execute sale deed
Payment of consideration
To pay of the liabilities on the property
Rights of seller Rights of buyer
To get rent and profits
Right of encumbrance on consideration already paid
After completion of sale
Liabilities of seller Liabilities of purchaser
To hand over possession
Liability on accidental or loss to the property
Information about right To hand over records of rights after receipt of consideration
Duty to pay taxes and liabilities after taking possession of property
Rights of seller Rights of buyer
If consideration is due encumbrance on property of such dues Incremental value/profit on property
Though there are rights and duties the purchaser should carefully examine the following matters;
1) Original documents.
2) How did the seller acquire the property.
3) Encumbrance Certificate of the property for a minimum period of 15 years from Sub Registry Office to know if there are any encumbrances on the property to be purchased.
4) Verify from the concerned court if there are any litigations on the property to be purchased.
5) Verify if there are any litigations, objections in revenue, municipal offices about inheritance or any other matter.
6) If seller is a power of attorney holder, it should be verified from the principal and if such power of attorney is genuine and whether it is still in force.
7) It should be verified whether the transaction is opposed to public policy under Section 22A of the Registration Act, 1908. If so the document will not be registered.
8) If the Property is a granted land to the member of scheduled caste and scheduled tribe, it should be verified if the transaction is in contravention of the terms and conditions of grant and whether permission of the Government is obtained for transfer.

15. Why do Registration?
Ans. (a) By Registration of transaction of immovable property will become permanent public record. This is a notice to the general public.
(b) According to Transfer of Property Act right, title or interest can be acquired only if the deed is registered.

16. What are the effects of non-registration?
Ans. If a deed of transfer, which is compulsorily registrable, is not registered it will not be admissible in evidence as per Sec.49 of Registration Act 1908

17. What is the time limit to present a document for registration after it is executed?
Ans . a. Document may be presented for registration within four months from the date of execution.
b. If a document is executed out of India, the period of four months will be counted from the date of its receipt in India.
c. After four months document may be presented within another four months with penalty subject to maximum of ten times the registration fees if the District Registrar grants permission. But document may be presented before Sub Registrar within eight months. Thereafter it cannot be accepted for registration.

18. Can a document that is presented for registration be withdrawn?
Ans . Registering officer may permit withdrawal of the document before completion of registration on written request by the party who presented the document. Fifty percent of the registration fee is refundable. Likewise Stamp duty is also refundable subject to deductions.

19. Who should be present at the time of registration?
Ans . A deed may be presented for registration either by claiming or executing party but the executant / executants must be present to admit execution of the deed (Sec.32 of Registration Act 1908).

20. What is the course, if executing party refuses to appear in Registry Office to admit execution?
Ans . a. In such circumstances, registering office will issue notice/ summons to the Executant. If the party does not turn up registering officer will refuse registration.
b. Application may be made to the District Registrar on such refusal to the District Registrar who will hold enquiry and decide the case. Rs.250 should be paid for such application.
c. One may submit appeal to the Civil Court if District Registrar also refuses to order for registration (See Sec.73, 74, 75, 76 & 77 of Registration Act 1908).

21. Who can sign as witness to a document?
Ans . Any person, above 18 years of age and not a party to the document may sign as witness.

22. What is meant by Identifying witness of person presenting/executing a document?
Ans . In order to identify genuineness of the persons executing the document, signature of identifying witness are obtained. Without such witness, registering officer may refuse registration.

23. Who is authorised to write a deed?
Ans . Deed may be personally written by the executant or may be drafted by a licensed deed writer or advocate.

24. Is it necessary to register deed relating to transfer or assignment of decree relating to immovable property?
Ans . If value of the property involved in decree is Rs.100 or more and creates, declares, transfer, limit or extinguish right it should be compulsorily registered (See Sec.17 (e) of Registration Act).

25. Explain the registration of adoption deed?
Ans. Adoption deed maybe executed and registered like any other deed. Stamp duty Rs.45 and registration fee Rs.200 are leviable on it depending upon the hurisductional aspects.

26. Explain the Power of Attorney?
Ans . There are two kinds of Power of Attorney.
1. General Power of Attorney (GPA)
2. Special Power of Attorney (SPA)
a) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act.
b) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him.

27. Does property get transferred by getting a General Power of Attorney from the person selling it? Can the agent become owner of property?
Ans . No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the proper sale deed registered. This principle applies to other kinds of transactions also.

28. Who can execute Power of Attorney?
Ans . A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf. If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property. If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property.

29. When would a General Power of Attorney gets cancelled?
Ans. a. GPA automatically gets cancelled on the death of Executant.
b. Principal (Executant) may cancel it any time.

30. What does Irrevocable Power of Attorney mean?
Ans. If the Power of attorney is executed for consideration in respect of property it cannot be unilaterally revoked, prejudicial to the interest of the agent (Sec.202 of Indian Contract Act, 1872).

31. What is the meaning of a Special Power of Attorney?
Ans . (a) Power of Attorney executed by a person in favour of another to act on his behalf for specific purpose is called Special Power of Attorney.
(b) If a person is unable to go over to registry office to present a document executed in his favour or to admit execution of document executed (signed) by him, such power of attorney shall be authenticated or attested by a Sub Registrar. Otherwise they are not acceptable for the purpose of registration.

32. Is it compulsory to register power of attorney attested in India by Magistrate or notary?
Ans . They need not be registered. But General Power of Attorney containing authority to present or admit execution of a document executed by the principle is not acceptable for such presentation or admission of execution unless they are attested or authenticated by a Sub Registrar.

33. Is it compulsory to register General Power of Attorney executed by persons residing out of India and attested by officers of Consulate office of India in that country?
Ans. It is not necessary to register. But Stamp duty as per Article 41 shall be paid within 3 months from the date of receipt of the power of attorney in India.

34. Is it compulsory to get a Power of Attorney attested by a Sub Registrar if it has already been attested by Magistrate or Notary, under which documents are signed by the agent?
Ans . Not necessary

35. What is meant by Encumbrance Certificate?
Ans . Encumbrance Certificate is a record showing registered transactions pertaining to a property. If mortgage, sale or any other deeds in respect of a property are registered, encumbrance certificate is issued.

36. How to obtain Certified Copy of registered document?
Ans . 1. Any person may obtain certified copy of registered document relating to immovable property.
2. Certified copy of registered will may be obtained only by the testator only during his lifetime. Any person may get copy of a will after the death of the testator on production of death certificate.
3. Copies of registered deed of GPA and other documents relating to movables may be obtained by executant / claimant or agent, representative of such person only.