Deccan Herald Articles



Extracted below are few published material from the legal angle sections of DH Realty in Deccan Herald newspaper,published every FRIDAY. All the articles can be viewed on www.deccanheraldepaper.com

Sanction plan essential for hassle free appartment purchase

Dear Madam,

I want to know the details for transferring a registered property document of Bangalore, registered at Chennai office in 1987. I had visited the sub-registrar at Bangalore Central Office for getting my encumbrance certificate. I got the certificate but the name was not mentioned. When I enquired about the same, I was told that the memo from Chennai Registrar's office had not been received at the Bangalore District Registrar's Office. Please let me know how to go ahead regarding the issue. Should I contact the Chennai Registrar or Bangalore Registrar?

Prakash


Dear Prakash,

As there has been inordinate delay in getting the endorsement in Bangalore, I suggest you send notices to the sub registrar concerned, in Chennai, and follow it up with a writ petition, directing him to send the endorsement to Bangalore. You should check with a lawyer about limitation for filing such a suit by reciting more facts about your attempts.


Dear Madam,

My Hindu father died intestate leaving behind self-acquired and ancestral properties, two wives and children. Is it true that in case of partitions as per the Modern Hindu Law and Hindu Succession Act, the second wife is not entitled to share in any properties, and children borne out of a second illegal marriage, can get their share only in self acquired properties but are not entitled for share in ancestral property? How far it is true? Please guide me.

Uma


Dear Uma,

This is true. You can refer to the judgement of the Supreme Court in 2002 in the matter of Jinia Keotin Vs. Kumar Sitaram Manjhi.


Dear Madam,

I am staying in a 2BHK flat that I bought in Pune, Lullanagar. Now the parking area allotted to me is such that I cannot park my vehicle in it. It is between two parking areas such that if I want to take my car out from there, then I will have to first call the other members to remove their car first and only then can I remove my car. Understanding this, I repeatedly called up the builder to get my parking place changed but he has given no response and answers very arrogantly. Can consumer court help me in this regard?

Prashant Dhavale


Dear Prashant Dhavale,

Yes, you can definitely approach the consumer court for deficiency in service because the car park allotted to you has put you to undue hardship.

Updated paperwork in property matters a must

Dear Madam,

We are planning to purchase a D-group society site which is located near Nagarabhavi, Bangalore.
Here the problem is the D - group society has obtained BDA khata for a few acres but did not get BDA khata for the remaining 2 to 3 acres. We are planning to buy a site that does not have BDA khata.Can we buy that particular site?

Prabhakar


Dear Prabhakar ,

It will not be advisable to purchase the site without a BDA khata. Normally there is a problem if the layout has not been made according to sanctioned plan or if there is some litigation on the property. The khata is required for registration of the site also.


Dear Madam,

I had purchased land near Hosur ( a few km fromAttibele). I have a sale agreement which details out the plots.
However, my attempts to get the plot registered were always put off in the last 2 years. Now I am told that the site has appreciated so much that they cannot hand over the property to me. They are offering to return the payment I made to them with interest, citing a variety of reasons. Do I have a better option?
What other legal options do I have?

Srini


Dear Srini ,

If you were always ready and willing to complete the registration, you can sue for specific performance of the agreement, after paying the requisite court fee.


Dear Madam,

My father has a site in Bangalore. He has told me that he will give this site to me and that it has been mentioned in his will. I am planning to construct building in this vacant site. Can I do so?

Ravindra


Dear Ravindra,

If there is trust and cordiality in the family and your father is unlikely to change the will and if you have your own funds, you may proceed to construct the house, which will become yours after your father's demise. If not, it is better to get the site in your name through a registered gift deed before construction.


Two unrelated persons can become co-owners

Dear Madam,

I have looked at a flat next to SJR Red Woods. But, the builder doesn't have an NOC from BDA and he says that it is not required as its not under acquisition. He has the EC till last year and will get the EC till current date.
Is it okay and should i take the flat there? Would there be any issues later because of BDA NOC?

Vishal


Dear Vishal,

If the BDA has approved the sanctioned plan there is no need for a separate NOC from the BDA. The NOC only reflects the acquisition status of the property by the BDA as on the date of the said NOC.


Dear Madam,

My friend and I have together purchased a housing site of 30'X40'size in a recognised housing co-op society converted under Municipal corporation limits. The site is registered in my friend's name only. Now I want to become co-owner with all legal rights. There after, to go for individual floors on the site. Please advice the legal procedure to become co-owner.

Ram


Dear Ram,

It is possible for two unrelated persons to become co-owners if a gift deed transferring 50 per cent undivided share is executed, along with the right to construct one floor.


The procedure for khata amalgamation or transfer

Dear Madam,

I am planning to buy agricultural land to build a farm house. I do not come from an agriculture background. Can I get the land registered in my name? Also, how do I ensure that the land has good title deed? What are the necessary documents that need to be checked before purchase?

Simha C.M


Dear Simha,

You should get the permission to become an agriculturist and take up agriculture within 2 years of being given such permission. You should meet the eligibility criteria of income limits before applying for such permission. To ensure good title, you should consult a lawyer who can also verify if there is any acquisition proceedings, check up the land use and inspect original documents.


Dear Madam,

I am planning to purchase agricultural land near Mysore. Currently, my father has some land in Tamil Nadu. Will he be able to buy agricultural land in Karnataka?
Also, please inform me about the procedure to buy land in Karnataka? How can I become an agriculturist if I don't have land in my name anywhere?

Srinivasan


Dear Srinivasan ,

If your father's income is less than 2 lakhs per annum and if he had agricultural land prior to 1974, he can purchase land in Mysore. You can also purchase agricultural land if your income is less than 2 lakhs per annum. You can get your land included in the patta of the lands in Tamil Nadu. The procedure prior to purchase should be handled by a lawyer.


Safeguards before Buying a Grama Thana Site

Dear Madam,

The original sale deed of a Revenue site which was purchased in 1964, was lost. A true copy attested by sub-registrar was obtained in 1984 and was serving the purpose. After payment of betterment charges, the khata was obtained in 1998. In order to obtain housing loan, the bankers are asking for the original sale deed. In its absence, they suggest to lodge a police complaint and also publish in newspapers about this loss, for checking if there are any claimants. Since the loss of sale deed occurred several years back and we already have a True Copy, will it be appropriate to give a police complaint now? Will it not be sufficient to publish the same in a newspaper? What is the legal requirement in such cases?

Raju Murthy


Dear Raju Murthy,

You could, to satisfy the bank, insert a notice in the papers and lodge a complaint saying you have lost the originals recently. In my opinion, however, an affidavit from you stating that the originals were lost, about 24 years back, and that you have not mortgaged the property, is sufficient, coupled with a public notice.


Dear Madam,

To avoid paying capital gains, can I buy another property in joint name with my children? The original property that I am selling, is in my name (single). If I buy a property in joint names, will I get the benefit of exemption from capital gains tax? I am thinking of doing this so that my children do not have any inheritance problems after my death.

NK


Dear NK,

You may put this question to your auditor who will be able to guide you. As far as the Registration Act goes, your children and yourself will become the joint owners of the property.


Dealing with 'neighbourly' encroachment

Dear Madam,

I would like to buy a site which has DC conversion but no approval. The site is near Chandapura, between Vakil Housing and Upakar which are BMRDA approved. Can I purchase this for the purpose of construction? Will there be any problem in future? Please advise.

Poovizhi P


Dear Poovizhi P,

It may not be possible to get bank loan for purchase or for construction of a non approved site if it is in a layout. Also, resale will be difficult. If you have your own funds, you can proceed with the purchase if the title is clear and if it is not in fact, a layout.


Dear Madam,

I am purchasing a house constructed on converted land.The plan was approved by gram panchayat.The seller has purchased land from two people who were the legal heirs of that ancestral property. In the sale deed, it is mentioned that one of them has got GPA of the other and has signed sale deed. The GPA is not registered.
1. What are the consequences of purchasing this property?
2. What are the additional documents I need to ask for?
3. Now the area comes under BBMP and village panchayat has approved the plan. Will it create any problem?

Ashoka


Dear Ashoka,

A GPA to sell property means that a person must represent himself as an agent of another, in the sub registrar's office. This has to be registered (authenticated) as per the provisions of the Indian Registration Act. Although such transactions are happening frequently, it is deficient and does not confer title. It is also open to challenge later. You can request a confirmation deed to be registered by the person who was represented by GPA or at least you can ask for a letter of ratification. Alternatively, if the registered sale deed is more than 12 years old, you can proceed with the sale, provided title is clear.


Builder cannot resell the same plot

Dear Madam,

I am member of a House Building Co-operative Society at Mysore. The society is demanding Rs 1.50 lakh and will issue a formal receipt. The acquisition proceedings of land is going on. Layout has not been marked and a lot of work is pending. At this stage, is it really worth investing such a huge amount? The society is promising that the site will be allotted in 2009. The total cost will be Rs 2.70 lakh with extra payment for registration. What is the legal angle in this case and what precaution can I take to safeguard my interest?
The measurement of the plot is 30'x40' and they don't assure a corner site. They say the Board's decision will be final.

R Amarnath


Dear R Amarnath,

In my opinion, you should not proceed to put down your money before the society has the land in its name, as acquisitions by house building co-operative societies have had a chequered history in Karnataka.


Dear Madam,

I am planning to buy an apartment with all the documents and BDA approval, from a builder. Eighty percent of owners have already taken possession three years back. A few apartments are still with the builder. Now he is looking to sell them. When we asked for the occupancy certificate, he said he did not apply for the same. Is it okay to go for an apartment without occupancy certificate? What will be the implications if we go ahead with the sale? Also, how do we know that the said flat in question, was not registered earlier?

Babu


Dear Babu,

Many builders are not getting the OC because it involves some extra legal expenses. You could get a structural engineer to visit the flat and determine the extent of deviation after showing him the sanctioned plan. If it is within permissible limits, you could proceed with the purchase, provided title is clear.
You should get an Encumbrance certificate to determine who the last registered owner of the property is, (through which you can rule out sale to other third parties), and you can also support it with public notices in prominent newspapers, announcing your intention to purchase the property and calling for objections, if any. Inspect original documents to rule out mortgages created by the builder.


Dear Madam,

I am staying in a rented house where I had given an advance deposit of Rs 1 lakh by cheque and have also been paying my rent by cheque. Now, the owner of the house has asked us to vacate the place but is refusing to give back the deposit in cheque. He is forcing us to accept cash(black money). He is also harassing us by not providing water. Kindly advise on the next course of action in this situation.

Sangeetha Raj


Dear Sangeetha Raj,

Yes, you are well within your rights to insist on repayment of the advance amount by cheque and not by cash. You should first send a legal notice and if there is no compliance, you should file a suit for the same. Regarding non supply of water, although there is no quick solution, you can file a suit for injunction against the landlord and get the water supply reinstated.


Legal clarity, not trust, basis of property deals

Dear Madam,

I have purchased a half site, measuring 15 x 40, at Gowdarhalli village coming under Kittanahalli grama panchayat, in 2005, and the site has also been registered. The landowner posed a small problem to me, asking me as to how I could purchase the site, since it was already GP registered from the land purchaser.
When I questioned the land purchaser regarding the above matter, he said he had already given a separate portion to the landowner. Kindly advise me.

Krishna T


Dear Krishna T,

The registered GPA holder can stake a claim on the property, if it is coupled with an agreement to sell, for which he has paid consideration. If possible, you can get the GPA holder to execute and register a confirmation deed in your name, confirming the sale already made in your favour by the owner. If not, you may not be able to avoid a dispute.


Dear Madam,

I purchased a flat in my father's name five years back and three years back, he (my father) expired. What is the procedure to transfer the flat to my name? Is simple transfer possible or are registration charges applicable? Please advise.

B Hariharan


Dear B Hariharan,

If your father has not left a will bequeathing the property to you, it will devolve on all legal heirs. If that is the case, you can get a release deed executed by all the other legal heirs, releasing the property to you. Thereafter, you can get the khata changed in your name. If there is a will, the khata can be changed to your name on the basis of the will.


No construction without plan approval

Dear Madam,

We had started building a house, (ground + 3 floors), three months back without any plan approval from overnment. Construction is half completed. Can we start the approval process by paying the penalty now? If yes, what are the steps to be takennow and how muchpenalty should be paid?Also, what could be theconsequences of not gettingthe plan approved?

Chandru


Dear Chandru,

You could try to get the plan approved now and try to pay the extra legal expenses to the officers concerned.No penalty is fixed for this as you are not supposed to start construction without the sanctioned plan. If you do not have the sanctioned lan, obtaining electricity and water connections will become an issue. Also, the house will not have a good and marketable title if you want to sell it later. The title to the plot will not be affected.


Dear Madam,

I have property in Indira nagar. My late father had taken an advance of Rs 3,00,000 in 1995. He had given receipt on a white paper and no agreement was entered on stamp paper. My brother and I have now divided the property in two parts.
1) I would like to sell my part of the property to another party. I would like to know whether the party who had paid money to my father, could stall the process in any way?
2) Can he claim any legal damages or money from me?
3) Can I go ahead with my sale transaction?

Maruthi Rao


Dear Maruthi Rao,

It looks like any claims that could be made by the agreement holder, have been barred by limitation. If there has been no demand / action/ notice from him till today, you can ignore the same and proceed with the sale.


Repatriation of full sale proceeds is now allowed

Dear Madam,

I purchased property in 1996 and registered it as GPA registration. Now I have not yet got the khata done but have the mutation and encumberance certificates. My land is agricultural land in Dodabidrekal, Tirumalapura grama.The land measures 3.5 gunthas. Please advise.

Mayur Raj


Dear Mayur Raj,

If possible, you should get the sale deed registered in your name. Otherwise, you can claim title on the basis that you have been cultivating the same. You can file Form 7 and get yourself declared as a tenant. Thereafter you can get the RTC in your name.


Repatriation of full sale proceeds is now allowed

Dear Madam,

I am planning to book an apartment in a building wherein my friend had already booked one. The builder says he won't be giving us BDA completion certificate. And when we had asked for the deviation in the plan, he says it is within permissible limits. He also added that most of the small builders won't be giving the BDA completion certificate. What is the importance of the BDA completion certificate and the advantage/disadvantage of not having it?

Prakash


Dear Prakash,

The disadvantage is that you will not know the extent of deviations. You could be purchasing a property which is not within the permissible extent. You could get a structural engineer to measure and compare it to the sanctioned plan to make sure that the builder is stating the truth. Alternatively, you could insert a clause in your agreement that the building has been constructed according to plan and is within permitted deviations, and any compounding fee for the same shall be borne by the builder.


Property inherited by will, generally not coparcenary

Dear Madam,

We have land of about 12,000 sq ft, which comes under Mahadevapura BBMP, (earlier, K R Puram CMC). Presently, we have a house there which we want to demolish and build apartments. This land is not DC converted and betterment has not been paid. Since we intend to build the same, can we now get the plan approval for the apartment? Can we pay the betterment fees for it, since the BBMP khata is required for approval?

Vinod


Dear Vinod,

If you get the sanctioned plan from the BBMP and the khata issued from the BBMP, then it is procedurally possible to register the property despite lack of conversion certificate


Dear Madam,

A property from a grandfather is willed to his three sons (with no share to daughters specified in will). So, the three sons (about above 80 years old people), have inherited the same after their grandfather's death. Now, the three sons are selling their property. Do their children, (sons and daughters above 40 years old), also have to sign the sale deed or can the three sons sell without the consent of their children?

Kumaresh Sekaran


Dear Kumaresh Sekaran,

A property that is inherited by will cannot generally be said to be coparcenary property. The date when the property vested in the three children of your grandfather, should also be looked into. If the property has not been treated as HUF property, it will retain its individual character. Some purchasers are insisting on the grandchildren joining in the execution of the sale deed, only as a matter of abundant caution.


A women's Sridhan property, Wholly hers

Dear Madam,

We purchased a plot on Sarjapur Road during 1995 and obtained possession certificate in 1998. This plot was not registered till now since the builder was dragging his feet, giving some reason or the other. There are about 1000 plots which were distributed to different people, mostly people staying outside Karnataka. At the time of possession certificate, we paid a total of Rs 3 lakhs, along with registration fee of Rs 35,000. At present the builder has come up with a new reason that registration could not be done and Sakrama is in force, etc. and wants to give the amounts to us, with interest, which is not acceptable to us, considering the land price at present, in Bangalore. What are the legal aspects we would have missed or overlooked? We have a feeling that the builder might have sold the plot to somebody else, since it is almost 12 years old and he could have deliberately not moved the case after taking the money.

Sriram


Dear Sriram,

You should apply for the latest Encumbrance certificate to ascertain if any further sale has happened. Then you can institute a suit for specific performance against the builder if limitation period has not lapsed. If any further sale has happened, you will have to challenge the title in the hands of that person also, and the case will get more difficult. In any case, you can get the monies you have paid, refunded with interest.


Dear Madam,

I live in USA and owna 5 bedroom house in Sindhi colony in Bangalore's Cox Town area. Whenever I ask my brother to get a loan on this property, he always says we cannot do so as the said property is in Sindhi colony and no bank will give us a loan as the property cannot be registered. When we bought the property, we just changed the names and gave all the papers to Sindhi Association. Is it true that we have to register the property in order to take a loan on the same? I have been living here (USA) for nearly 18 years.

Kishore


Dear Kishore,

It is not clear exactly what the problem is. There are many houses in Sindhi colony which have been sold, to my knowledge. It appears that a sale deed has not been executed in your name. If this is so, you will not be able to raise a loan.


Dear Madam,

My questions are:
1) Does the son of the family get a share in stridhana property? If yes, what is his share?
2) Apart from a suit, can we go for the settlement via statement in the court by our council?

Rupesram


Dear Rupesram,

No one has any right on a woman's stridhan property. It is the absolute property of the woman concerned. A settlement is always an option open to all litigants.


Selling property with a tenant, is a valid sale

Dear Madam,

After the demise of my father, a partition deed was executed among my two younger brothers and my mother.We two sisters did not get any share in the property as we were married prior to 1994. Now, my mother wants to will her share of the property (1/3rd), to us ( two sisters). Is it possible or are my two brothers, the only legal heirs to her share of the property? Kindly clarify.

Mamatha


Dear Mamatha,

The first thing to be determined is if the property is self acquired or ancestral. In any case, your sister and you definitely have some right on the property. Only the exact share changes, depending on whether it is ancestral or self acquired. You can challenge the partition deed if you are within the period of limitation. There is no problem in your mother executing a will bequeathing her share to your sister and you.


Mortgaged property cannot be divided

Dear Madam,

I recently decided to go for a dream home and selected an apartment at Kaggadasapura. We have paid an advance and are planning to go in for a home loan for the remaining amount. However, upon verification/valuation by the bank, we were informed of an FAR violation to the extent of 206%. When I spoke to the builder, he informed that every building in Bangalore has a violation and is not something to be worried about. He also added that some other banks had approved this project. Should I go for this property knowing fully well that there is a violation? What would be the impact on a later date after I have moved in? What recourse can I get from the builder in case of future problems? (The builder has agreed to give me guarantee for 15 years in case of any problem).

Joly Joseph


Dear Joly Joseph,

It is not advisable to purchase an apartment with such gross violations of the sanctioned plan. An indemnity from the builder can definitely be enforced, provided the builder's company/partnership firm has not wound up/dissolved at the time when the indemnity has to be enforced.


Dear Madam,

I own one ancestral property (house) in a village, which is not yet partioned. My father expired in 1965 and mother in 1964. I had two brothers. One of my brothers (youngest) died in 1992 and another brother (younger) died in 2005. My sister is alive. My brother, who died in 2005, has a house, a vacant site in Bangalore, jewels and fixed deposits in the bank. All of this have been earned by his own income. He has no issues (no sons or daughters). He lost his wife in 2004, just a year before his death. Another brother, who died in 1992, has two daughters who are not married yet. Now my question is -
1) Who will get the share in the house at the village and how much each will get?
2) Who will get my younger brother's property and what should I do to get succession if I am eligible?

Subbalaxmma


Dear Subbalaxmma,

Presuming that no will has been made, the ancestral property will have to be divided between all the children, both deceased and living. The share of the daughters will be equal to that of a son, provided the daughters were unmarried as on 30-7-94. If married prior to this date, the share will be much smaller compared with that of the sons. The share of each child will again devolve on their respective children and surviving spouses. Regarding the share of the deceased brother, it will devolve on the other brothers and sisters, again in shares to be determined in terms of the date of marriage of the sisters, i.e., depending on whether they are to be treated as coparcerners or not. You need not do anything except partition the property if you want your divided share.


Legal heir certificate not insisted upon in State, prior to purchase

Dear Madam,

We have an apartment in Pai Layout, on Old Madras Road. We got the property registered in 2001 and have been paying the property tax regularly. We have power supply from Bescom and drainage system is in place too. The only issue was and is, that there is no water supply from government. We see no good news in the near future also. We have tar roads and streetlights too, all by government. If these were not provided, we as citizens would not have bought the same, inspite of the landlord's words and bank loans issued. The question to you at this point of time is - of late, we are getting confused by people around, wherein we hear that the construction was illegal. If so, why is it that we hear about this after five years and that too, after the house tax has been accepted regularly? We have paid the same for the current year too. There was no resistance from government in accepting the house tax. We even applied for the ration card. Your advice in this regard would be of great help since we are about to apply for khata from BBMP, approach government for regularisation, etc. As of now, we have SAS khata with us. Can we take all this as a rumour and relax, or where can we check up officially about the legal status of the property?

Sureshh


Dear Suresh,

It is not possible to say if the flat is constructed legally or illegally, without looking into the sanctioned plan and who has issued it. The title to the land should also be looked into, to see if it was built on encroached land. You may individually or collectively consult an advocate with the documents. The absence of water connection alone, cannot be a determining criteria for the legality of the building.


Dear Madam,

My late father purchased a site in Chennai from a land developer who, in turn, had purchased it from the original owners. He did not leave a will. Some years after his demise, my two brothers and I executed a notarised affidavit, surrendering our share in the property (as heirs of my father), to my mother. The above document is registered in the tahsildar's office. However, the Patta (khata) is still in my late father's name and not yet been transferred to my mother's name. Now that my mother is intending to sell the same, we have been told by prospective buyers that they require us, ie, my mother and her three sons, to furnish a 'Legal Heir certificate'. Is this necessary and if so, what is the procedure to obtain the same? Is it not sufficient for the buyer to put a 'Public notice before purchase of property'?

P Ulhas


Dear P Ulhas,

The legal heir certificate is not insisted upon in Karnataka prior to purchase. Instead, reliance is placed on the family tree and this is supported by affidavits and/ or newspaper notices. If the legal heir certificate is insisted upon, this can be applied for, from the court concerned, in Tamil Nadu.