Wednesday, 30 July 2014


(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

Public in general frequently use encumbrance certificates in property transactions because the sole proof to establish free and marketable title of the seller. They’re underneath the impression that the encumbrance certificate would disclose all the costs created on a property. But, it's not therefore. There is also many kinds of encumbrances, which is able to not be mirrored within the encumbrance certificate. Applying for encumbrance certificate is to be submitted at the territorial Sub-Registrar's workplace underneath whose jurisdiction the property falls.The prescribed form for getting an encumbrance certificate is Form No.22. 

In order to induce a correct and valid certificate, it's important that the applicant should clearly mention within the application the amount that the encumbrance certificate is needed, careful description of the property, its measurements,boundaries,and also the one that is applying. The encumbrance year commences from April first of a calendar and closes on March thirty first of following calendar year. Any fraction of the encumbrance year attracts fee for the complete year.The fee prescribed is for single property and per individual form. 

Form No.15 or 16
The encumbrance certificate is issued either in Form No. 15 or 16. If the property doesn't have any encumbrance throughout the actual amount that encumbrance certificate is wanted, then encumbrance certificate in Form No.16 are issued i.e., Certificate of nil Encumbrance are issued. If the property has any encumbrance registered throughout the actual amount that encumbrance certificate is wanted, then encumbrance certificate in Form No.15 are 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 within the same deed, registered variety of the document, book no., volume no., and date.

The encumbrance certificate issued always is within the language during which indexes area unit ready specifically Registrar or Sub-Registrar's workplace. If the indexes aren't in English and also the soul needs certificate to be ready in English, then the request of the soul are complied with to the extent doable. In province, now processed encumbrance certificates area unit issued.

There is a provision for review of the records of the property maintained within the office of the Sub-registrar by the soul himself/herself. Just in case the soul prefers to not exercise this authority and just submits application for issue of encumbrance certificate for a selected amount, the department would be issue the encumbrance certificate with due diligence and care. However, there's a rider clause within the processed encumbrance certificate to state that the department shall not take responsibility for mistakes, if any, within the encumbrance certificate. 

Though an encumbrance certificates discloses all registered encumbrances on a selected property throughout an amount, its bound limitations.The Encumbrances disclosed within the certificate area unit for the amount that certificate is issued and encumbrance created throughout the amount previous this era or throughout the later period isn't mirrored within the certificate. The encumbrance certificate is issued in respect of the property as careful within the form and not as per the registered documents of the property. Thus, if the outline of the property represented within the application doesn't match with the small print of the property as shown within the registered documents, then details of such documents aren't mirrored within the encumbrance certificate.

The encumbrance certificate discloses the encumbrances created by documents that area unit registered in an exceedingly explicit workplace. In different words, it's the extract of the property register maintained within the Sub- Registrar's workplace and also the document that isn't registered and wherever underneath any charge is formed doesn't get mirrored within the encumbrance certificate. Further, there are a unit bound documents that registration isn't obligatory however registration is nonmandatory. These documents embrace official  documents, document making lease for a amount of not surpassing one year, any decree or order of a court, or award. Since these transactions aren't mandatorily registered ready, they are doing not notice any mention in encumbrance certificate. 

Agricultural Land
Agricultural lands area unit typically familial. The change of possession is recorded in revenue records, mutation register of village panchayath.Such changes of possession aren't registered. Intrinsically encumbrance certificates don't mirror verity possession of the agricultural land. R.T.C, Mutation extracts provide complete details of amendment of possession, details of possession, conversion of agricultural land to non-agricultural functions. Therefore, it's higher to insist and trust RTC and mutation extracts just in case of agricultural lands additionally to the encumbrance certificate. 

It is continuously sensible to get encumbrance certificates for a minimum amount of forty three years and to verify whether or not the encumbrance certificate is issued for the entire amount of your demand and whether or not it contains the boundaries and also the measurements of the property, signature of registering authority and also the workplace stamp except for revealing the names and also the signature of the persons who have searched and verified the records of the property.It’s additionally sensible for the prospective purchaser of property to examine the property in person and to verify and ensure that the initial title documents area unit on the market with the seller.Additionally to the current, some extra safeguards like paper notification,looking out in jurisdictional courts for any pending cases may additionally be undertaken to shield the interests of the vendee. 

It is suggested that for tracing the clear and marketable title of the property, the purchasers mustn't in the main trust the encumbrance certificate issued by the Registrar or Sub-Registrar's office, however should examine all different relevant documents, like title deeds, latest khata certificate, khata extract, and tax paid receipts.


Tuesday, 29 July 2014


(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

A single word will change the nature or understanding of the transaction and are many cases and matters that are selected the idea of the wordings utilized within the document wherever the interpretation of words, phrases and terms by the courts have set the fate of the parties. 

You may have come upon terms like "Indenture of Sale", "Indenture of Lease", etc. One could also be curious on what's meant by indenture and the way it's totally different from deed. Formerly, associate indenture meant a document cut with serrated edges which is able to match with the counterpart of the document. In different words, the copies thus cut had indented edges that created forgery troublesome.Now, although the language continues to be used, this kind of document is much non-existent.At present, indentures is taken to mean documents, sometimes within the nature of a contract, that area unit signed by each or all parties involved. 

Similarly, an influence of lawyer will begin with wordings like "Know All Men by these Presents". The term "presents" indicates the "Deed" itself. Further, one might come upon terms like "one or additional lots". Originally, the term "lot" or "lots" was used as indicating a parcel of land that was sometimes divided. "Lots" additionally meant contiguous parcels of lands.You’ll realize this in usages like "parking lot", etc.

The term "real estate" itself has return to mean stabile property. it's used synonymous  for lands, tenements, hereditaments and therefore the rights concerning immovable property as distinguished against personal properties like product and different properties that area unit essentially not stabile properties.

The word "Tenements" signifies properties that may be control by someone that area unit of a permanent nature. It additionally means that a house and different kinds of stabile properties.The word "Hereditaments" indicates any property which may be transmitted and includes movable and private property additionally.

The word "appurtenant" means that relating or happiness to and is employed in such sense in deeds and documents. The word "Appurtenances" utilized in conveyances like Sale Deed, etc. means that associate interest or a right during a property attendant the principal right that is additional valuable and necessary. The word "Easement" within the Sale Deed is explicit to be the proper or a privilege that someone has on the property of another. It additionally includes a right to relish a profit arising out of associate immovable property. Usually, this can be utilized in the context of indicating a right of method, pathways, a right of air, a right of tight passing through, etc. 
The word "License" utilized in a deed indicates grant of a right or associate authority to try and do one thing within the stabile property, that right or authority, except for the authorization, are going to be smuggled or wrongful or unlawful. It’s essentially within the nature of permission.This doesn't produce associate interest within the stabile property, however creates a right or a privilege that is sometimes reversible. Once acting below the proper or privilege, the person physical exertion the proper or privilege, referred to as "Licensee" enjoys immunity for the acts done. 

The term "Metes and Bounds" showing in deeds would indicate description or details of the boundary lines of the land, at the side of terminal points and angles. The term "Admeasurement" or "Admeasuring" is used wherever the particular extent of the length and breadth of the property is given.

There are many different terms and words which can seem innocuous and apparently repetitive. it's attainable that there's a way of discomfort in not knowing specifically what the words or terms mean after you area unit to sign sure documents since the words and terms as understood may be wholly totally different than meant within the document. Presumption of obscure notions might land you in hassle.If you are doing not perceive a selected usage, it's higher to visualize up together with your advocate or someone having data of those terms and clear all doubts.


Monday, 28 July 2014


(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

Identifying an acceptable property is that the opening taken towards the purchase of a property.After finishing identical, documentation is that the next and really necessary fact.The agreement to sell is ruled by the provisions of the India Contract Act (1872) and therefore the Transfer of Property Act (1882).
Mode of stamp duty
Previously, documents were ready on the stamp paper issued by the govt. Department.After the ‘Telgi Scam’, usage of the stamp papers was prohibited in Karnataka.Now, a written report or Rs a pair of document sheet that is issued by the department of Registration is most well-liked.Concerning revenue enhancement,it's to be created either by means of Pay a pay order / Demand Draft or Banker’s Cheque in favor of the involved Sub-Registrar. The Registration charges, either by means of a DD or money, must be submitted to the involved Sub-Registrar.The main points of the stamp duty and registration charges are entered by the Sub-Registrar on the reverse aspect of the sale deed.

The beginning
The documents contain many distinct components.The name and outline of the documents is that the 1st, within the documents. This offers a general indication concerning the nature of the document. However, contents are the foremost necessary issue to make a decision the character of the document. The date and place of the execution of the document is that the starting of the document.The date of the documents could dissent from the date of registration.The documents will be conferred for registration inside four months from the date of execution. However, the date and place of execution is very important for the aim of deciding the limitation and jurisdiction.

The name of the parties to the contract, their age, father’s name, just in case of a woman her husband’s name, and place of their residence ought to be mentioned. All the house owners, mutually of the parties to the contract, ought to take rife care at the time of executing such documents. The party to the contract could act for himself/itself or on his/their behalf, could also be described by alternative capability. In such case, the party ought to clearly mention on what capability he/they square measure being described, that is additionally one in every of the vital aspects within the documents.

All the relevant facts in an exceedingly logical and written record order ought to be narrated. The rights and obligations of the parties should be expressed. The intention of the party ought to even be clearly mentioned within the document.

The ‘Preamble’
The Preamble reveals the history of the property, nature of the transaction and therefore the intention of the party. The previous history of the property will be established, by an advocate, from the Preamble.

Operative portion
The operative portion of the document states the character of group action, on whether or not it's an absolute transfer or an agreement to transfer the correct, title and interest, the thought paid, mode of payment of such thought and balance owed, if any. The length of the completion of group action ought to be mentioned clearly. The covenants of the seller, pertaining to clear and marketable titles, are a very important facet for the transfer.

Default clause
In case of a default within the payment or non-performance of the other party, remedy to be taken, must be processed within the document itself.In case of delayed payment, what's the share of interest owed or damages owed to the opposite party or the modes to terminate the agreement just in case of breach, ought to be expressed clearly. In case of non-performance, execution clause ought to even be enclosed within the document.The arbitration clause is better to be incorporated within the agreement.

Possession is that the most important ingredient of the group action. The time of delivery of possession ought to be clearly and specifically mentioned. It should be noted that the vendor needn't offer the possession of the property to the client on the execution of the agreement or on half payment. Possession must be on completion of the sale method and receipt of the total thought quantity once execution of the conveyance deed.The agreement ought to additionally sit down with the mode of possession of the property and whether or not it's vacant or not.Once the property is released, the vendor must prepare for a rental agreement between the present tenant and therefore the client of the property.

Location and outline ought to contain the whole measure, the municipal range, street, road, with complete and correct boundaries and properties close the property in agreement to be sold. It ought to additionally embrace the world, floors, style of constructions and materials used among others. the details ought to be thorough thus on determine the property clearly as Section 21 and 22 of the Indian Registration Act makes it necessary to disclose the main points.

At the end, the document ought to contain and endeavor that the executants is signing the documents before the witnesses.The witnesses, who sign on the document, could or might not grasp the contents of the agreement. Whereas, within the case of willing witnesses,who have an explicit interest within the property, would grasp the contents of the documents.The non-testamentary document ought to be written by an Advocate or commissioned documents author and that they ought to register identical.

Preservation of the initial document is that the most vital fact because it is an proof of ascertaining the ownership of a selected person and case of his death, for his or her legal heirs. If the initial document is misplaced or unavailable, it'd seriously have an effect on the title of the property. it should be probable  that the property documents are pledged with some money establishments by means of deposit of title deeds. It’s better to laminate the documents and preserve them in safe custody.


Saturday, 26 July 2014


(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)

Power of attorney is one in every of the documents that is being executed most extensively bearing on the transactions involving transfer of properties, regardless of modes of conveyance. the most reason being inability of the person, either the transferee or the transferred to be gift at completely different place at a similar time. So as to complete such transactions, in his/her absence, General Power of attorney is executed; authorizing another person to try and do acts or sure acts on his/her behalf. Such associate instrument empowering a such that person to perform such act in his absence is termed as General Power of attorney, as envisaged within the Power of attorney Act 1882.

The instrument of Power of attorney is predicated on the conception of Law of Agency, whereby the Principal, i.e., the one that executes Power of attorney, authorizes his Agent, i.e., the person in whose favor such Power of attorney is executed, to try and do all such necessary acts per the ability of attorney on his behalf and additional ratifies such acts of the Agent and also the said conception has been recognized underneath the statute thereby giving legal quality.

Competency of the Parties:
The following are the necessary necessities before executing Power of Attorney:
Majors: it's necessary that each the Principal and also the Agent should have earned the age of majority as a result of contract entered between 2 parties, wherein, either of the one may be a minor, isn't recognized under Law. Hence, it's important that each the parties ought to be higher than 18 years aged.

Sound Mind: it's conjointly necessary that each the Principal and also the Agent should be of the sound mind since the contract with the person of unsound mind doesn't bind the parties to such a contract.

Types of Power of Attorney:
There are 2 varieties of Power of professional. They are:
•General Power of attorney: General Power of Attorney provides wide power to the agent to try and do numerous acts on behalf of the Principal, with none specifications.

•Special Power of attorney: Special Power of Attorney is dead in those cases whereby the agent is authorized to try and do such acts per such Power of Attorney.During this reasonably Power of professional, the ability given to the agent are going to be revoked as presently as that individual act that the ability of attorney is executed, is performed associated once such an act is completed, Power of attorney doesn't live. 

Sub-delegation of power:
The general principal is that associate agent will neither sub-delegate his powers to a Sub-agent nor will appoint another power of professional. The said principle is well expressed in Latin maxim “Delegate non protest delegate”, which implies someone who is delegated with sure powers cannot delegate such powers to a 3rdperson. But, section one hundred ninety of the Indian Contract Act provides sure exceptions, whereby the agent will appoint sub-agent. However, such sub-delegation should be done in connivance with the Principal, who needs to formalize all the acts done by the agent on his behalf.the subsequent area unit the circumstances underneath that Sub-delegation is permitted:

•The nature, custom of the trade is such it needs the appointment of sub-agents.
•The recitals in such power of attorney authorize the agent to sub-delegate his powers to a different agent.

Registration and Notarization:
Under Section seventeen of the Registration Act, if any group action involves transfer, assignment or creation of right, title and interest over the stabile property and also the price of such property is Rs.100 or additional, then registration of such documents is necessary. 

As regards execution of Power of attorney, if the principle assigns right, title and interest over the stabile property in favor of the agent and authorizes the agent to execute any document on his behalf, in such case registration of the ability of attorney is preferred. However, if the agent is delegated with the powers that don’t involve any reasonably assignment or transfer of interest over the stabile property, then power of attorney notarized before official or perhaps before the adjudicator, is taken into account to be authenticate documents.

Thus for instance, if someone executes Power of attorney, authorizing the ability of professional Holder to execute sale deed on his behalf before the right registering officer, then it's better to urge such power of attorney registered. On the opposite hand, if Power of professional is dead, authorizing the ability of professional holder to prosecute or defend the suit, then criterion is often notarized before official. However, the Court shall presume that an influence of attorney executed before and attested by official or any Court, Judge, Magistrate, Indian consul or Vice-consul or Representative of the Central Government was therefore dead and attested. If the ability of professional isn't signed and sealed as required under law, it's nothing over a paper.

In either of the case, every page of the document, whether or not registered or notarized, needs to bear official stamp of the Sub-Registrar workplace or official and should disclose the number, Book variety and signature of the Sub-Registrar or notary. If a similar is notarized, then, with the exception of the higher than, acceptable functionary Stamp needs to be mounted.

Outside India: Section eighty five of the Indian proof Act applies equally to documents attested by Notaries Public of different countries. However, a similar needs to be done by the selected Officers.Therefore any power of professional dead outside India shall be attested by notary of such country or Indian Consul/Embassy.

Stamp Duty: Power of professional, dead and notarized in any country in favor of Power of professional Holder, residing in India, needs to be punctually sealed among four months from the date of receipt of a similar and also the stamp tax in such case needs to be at the District Registrar’s workplace. However, if a similar is dead in India, similar needs to be dead on the document sheet, punctually sealed. stamp duty in either of the case are going to be Rs.100- if a similar is executed in favor of one to five of them and if power of attorney is given to over five persons, then the particular stamp tax collectible is Rs.200/-.

Cancellation of G.P.A: Power of attorney is often off by either of the parties to the aforementioned contract. However, a similar needs to be done by giving correct notice to the opposite, clearly mentioning the intention of the person to revoke the said Power of attorney and see to it result needs to run to the general public. However, the Principal cannot cancel the agency once the agent exercises his powers part. If the ability of attorney is given just for the particular purpose which purpose is fulfilled or if either of them dies or becomes unsound, then such associate instrument mechanically gets off. If the agent himself has any interest within the property that is that the material of the agency, then a similar cannot be off unless the agent agrees.

Representation of Owner: In Bangalore, there are a unit several instances whereby it's seen that the ability of attorney Holder, in his individual capability, representing himself because the owner rather than the particular owner can convey stabile property, that act doesn't confer any reasonably right over the purchasers since the document itself is void and not binding on the parties.Therefore it's important to verify on whether or not the conveyance has been created by the criterion Holder, punctually representing his Principal/Owner.

In the recent times, with the growing boom of land in Bangalore, the instrument of General Power of professional is taking part in a major role, not only in reference to sale or purchase of the property, however conjointly all told different connected fields. However, abundant caution needs to be taken at the time of executing Power of attorney and also cancellation of a similar as a result of a similar may be used as a weapon involving acts of fraud or conspiracy to misguide and cheat public.