Q1. I want to institute a suit with
respect to two properties. One of the properties is situated in the local
limits of Delhi and another in Faridabad. Whether I can institute a suit in the
courts at Delhi.
A. Yes, the suit can be instituted in
the courts at Delhi. Since, one of the properties is situated within the
jurisdiction of the Delhi Court, in terms of Section 17 of the Code of Civil
Procedure, the courts at Delhi will be fully competent to try the suit relating
to both the properties.
Q2. I am the registered owner of a
house and the same stands in my name by virtue of a sale deed executed and
registered in my favour. One of my cousin brother is now challenging the
ownership of the said house and is stating that the house was purchased benami
in my name and he is the actual owner of the same. What should I do in this
regard ?
A. Your cousin brother cannot challenge
your ownership and title in the said property since the same is now
specifically barred under the provisions of the Benami Transaction Act. It is
only under certain given circumstances that a transaction can be challenged as
a benami transaction, but your case does not fall under the said category. As
such any challenge made by your cousin brother would be dismissed forthwith and
your title is fully secured.
Q3. I had leased out my premises
under a duly executed contract / lease deed. The lease was
made for a period of three years but the same was not executed on a stamp paper
nor was registered. One of the terms in a lease mentioned about the payment of
house-tax by the tenant during the period of lease. Can I file for recovery of
the house-tax from the tenant who has refused to pay the same.
A. Since the lease executed by you is
for a period of over one year, the same is bound under law to be registered.
Since, the said lease deed has not been registered it cannot be looked into and
as such the terms regarding payment of property tax cannot be enforce by you in
law. The filing of suit by you in the court of law would be meaningless since
you will not be able to achieve a desired result. In a pending suit before a
court he has entered into a compromise contract with the other party.
Q4. One of my friend who is a Muslim
wants to gift his property. He has been told that under Muslim Law
even an oral gift can be made. Can a Muslim make an oral gift and how the same
can be lawfully done ?
A. A Mohamdean can gift an immovable
property by making an oral gift provided three ingredients are
satisfied. These ingredients are (a) there must be a declaration of
gift, (b) there must be acceptance of the gift by the donee, and (c) the
possession of the property which is the subject-matter of the gift must have
been delivered to the done. For the purpose of law, even if actual
possession is not given, possession which the property is capable of being
given would satisfy the requirement. Unless these three valid requirement s of
declaration, acceptance and possession are satisfied, an oral gift under
Mohamadean Las is not valid.
Q5. My friend mother owned a property
along with her son which she sold when the son was a minor. On becoming a major
the son challenge the sale and a court decided that the sale was improper.
Subsequently the son died and his mother inherited the son’s share also since,
there was no other legal heir. Now the person to whom the earlier sale was made
is asking the mother to give the half share of the son required by her to this
person and has filed a suit for the sale. What is the likely outcome of such a
suit ?
A. Mother selling property on her
behalf as also on behalf of her minor son, minor son on attaining majority
challenged the alienation on his behalf successfully and got a decree, but
thereafter the son died, his mother inheriting son’s share, the vendee cannot
succeed to bring home in respect of entire share of son sold the doctrine of
feeding the grant of estoppel, for after the suit filed by the son was decreed
successfully challenging the sale of his share by her mother the contract
originally entered or the sale deed effected did not subsist and the provisions
of section 43 could not be attracted to the case. The suit of vendee thus could
not succeed in entirety. As far as ½ share of land sold by the mother the
vendee would be owner thereof.
Q6. My grand father during his life
time gifted this properties to various persons, some of whom were living and
some were yet to be born. He died immediately after making the Will. What right
do the persons who were not born at that time and were born subsequently, have
in the property of the grand father.
A. It is true that in case of unborn
persons the whole of the remaining interest must be transferred. But where a
gift is made to a class or serious of persons some of whom are in existence and
other are not, the gift is valid with regard to persons who are in existence at
the time of death of the testator and invalid as to rest.
Q7. I want to enter into a benami
transaction. That benami property is to be purchased by me in the name of my
son and my unmarried daughter . Is it legally permissible to do so?
A. Benami transactions are prohibited
under the law. However, you can purchase of benami property for the benefit of
your wife or unmarried daughter but not for your son.
Q8. I am an NRI. I lost
my job in June 1992. I was in Gulf. There I meet with a tragic accident in May
1997, since then I am handicapped and living on my wife’s income. While I was
in gulf in my own younger brother forged my signature on the fake power of
attorney and took a loan from Bank against my house at Delhi,
and now he claims that the house belongs to him not only that. As I have small
farm and the papers are on my wife’s name, he has stolen it from my house,
which he claims as his. He has to owe us some good amount of cash which I had
sent it to him in 1998 Aug. to buy some property but he has swallowed the
amount, how do I fight myself to get my money and my property?
A. With regard to the forging of your
signatures by your younger brother for creating a fake Power of
Attorney and taking a loan from Bank, against your house at
Delhi, it is not understood as to on what basis your brother is claiming
ownership of the said House. If the loan has been obtained in your name
against collateral security of the House owned by you, the
House can not become the ownership of your brother. You can always challenge
the action of the Bank in granting loan without ascertaining the authenticity
of the Power of Attorney. There must be other discrepancies also on the part of
the Bank in disbursing the loan and in completing other formalities while
granting the loan. These need to be checked and appropriate action can be
initiated in the court of law against the same. You can further initiate
criminal proceedings against your brother (by lodging an FIR) for having
committed acts of forgery and cheating etc. In the event of the FIR being
registered, the police can also arrest your brother, if prima-facie case of
forgery is made out. Regarding the Farm House belonging to your wife, if the
documents of ownership are registered, a certified copy of the same can be
obtained from the office of the Registrar, even if the originals are not
available. In any event an FIR must be lodged by you against your brother for
stealing of documents. Your brother can not claim ownership of the said Farm
House, without any proper documentation in this regard and without showing
appropriate consideration having been paid for purchase of the same. Your wife
can file a suit for declaration, claiming the ownership / title of the said
Farm and in the said litigation you can further seek interim orders restraining
your brother from in any manner dealing with the said property till the
disposal of the case. With respect to the cash money sent by you to your
brother, it would be very difficult for you to prove the said fact, as there
would be no documentary or other proof in this regards. As such the chances of
success in the court of law in that regard are very remote.
Q9. I want to know about THE
DISPLACED PERSONS COMPENSATION AND REHABILITATION ACT OF 1954.
A. Here is a brief note on the said
Act is placed Persons Compensation and Rehabilitation Act, 1954.
After the partition of the Country, negotiations were carried out with the
Government of Pakistan for more than six years with a view to arrive at an
equitable solution of the problem of immovable evacuee property. The Government
of India had been of the view that the immovable evacuee properties including
agricultural land in India and Pakistan should be exchanged in lump sum on
Government to Government basis, whereby the debtor country should pay to the
creditor for the difference between the values of such properties in the two
countries. The proposals made by the Government of India form time to time
were, however, turned down by Pakistan. There was a persistent demand from
displaced persons that these properties should be transferred to them on
permanent ownership basis. The properties were fast deteriorating and many of
them were declared unfit for habitation or had crumbled down. To prevent
further deterioration and to facilitate the rehabilitation of displaced persons
from West Pakistan, this said Act, namely Displaced Persons Compensation and
Rehabilitation Act, 1954 was enacted which provided that the right, little and
interest of evacuees in evacuee properties in India would be acquired by
Government. It provided that the compensation to be paid to displaced persons
will be confined to the utilization of the acquired evacuee property in India
as well as any amount realized from Pakistan on account of the difference
between the values of evacuee properties in the two countries. The loans so far
advanced to displaced persons from West Pakistan, the properties built by the
Government for their rehabilitation and provision made till May 1953 for their
rehabilitation for the future under the Five Year Plan or otherwise was decided
to be utilized for rehabilitation by giving grants. The said Act provided for
the payment of rehabilitation grants. The said Act provided for the appointment
of Chief Settlement Commissioner, Settlement Commissioners and Settlement
officers who were to determine and pay the amount of compensation and
rehabilitation grant payable to persons after having verified their claims.
Managing officers and managing corporations were entrusted with the custody,
management and disposal of the assets in the pool. The Act further provided for
the setting up of the Displaced Persons Welfare Corporation for the purpose of
providing educational and medical facilities to displaced persons from West
Pakistan and rendering assistance to institutions engaged in such activities.
The payments due to educational and medical trusts with verified claims were
placed at the disposal of the said corporation along with other properties for
being utilized for the above mentioned purpose.
Q10. I wish to buy a property near
my location. Actually this property is built within the same complex. It splits
into two portions. One portion belongs to us. And the other belongs to X. The
person (X) escapes from the house due to some family and financial problems.
The entire family was escaped .The house is now locked for more than 6 months, but
the thing is that their relations are here and they are solving this financial
problems ( I mean his elder brother (Y) and some big leaders of our caste. X
also has some bank loans on behalf of this property it seems. That too nearly 2
lakhs + interest (nearly 3 lakhs). Now what Y says is he wants to sell the
property. He gives security and surety on behalf of his brother. He too is a
well know person and family friend for us for the past 15 years. The original
value of the property is more than 8 lakhs. Now Y decided to sell the land for
5.5 lakhs. What Y says to us is that you take the property and clear some
interests in bank and then keep continuing to pay bank. After all the
settlements (within a short period only) and the arrival of his brother X he
gives all the documents signed and all other formalities will be issued to us.
Y also agreed to write all these formalities in a bond paper too. The property
is in the name of X wife. So kindly please send me your opinion regarding this
and also tell me what to do in this case. It will be quite helpful and grateful
to us. This property will be much useful for us.
A. As explained by you the property
sought to be purchased by you is owned by the wife of X. As such no other
person, except the wife of X can sell the said property to you, unless the said
person holds a Special Power of Attorney on behalf of that person (preferably
duly registered) to sell the same. Y has no power to enter into any kind of
Agreement for sale of the said property and as such any document (whether on
Bond Paper or otherwise) executed by him would be meaningless and will not
transfer any title to you. There would be no purpose for depositing or paying
any amount by you to the Bank on behalf of X, since you will not get any
benefit from the same and it will only help X in paying off his debts. It seems
that the property is also mortgaged to the Bank against the said loans taken by
X and in any case the sale of the same cannot be effected in your favour. It is
never advisable in a property transaction to go by your relationship as friends
or otherwise and it is always advisable to have clear documentation in this
regard. As such we sincerely advise you not to enter into any such transaction
in the manner discussed by you.
Q11. During society draw, after the
allotment if any office bearer requests verbally to change of house from 2nd
floor to first floor and is occupying the house since then, more than 10 years.
The 2nd floor house is now sold for more than 5-6 times of POA with society clearance.
Is the last purchaser in any case get into trouble later on?
A. No, the last purchaser would legally
get into any trouble, since the last purchaser is a bona fide purchaser for
a consideration.
Q12. I had booked a flat in my wife’s
name in the year June 1999. I booked it by paying Rs.50,000/- by way of cheque
and Rs.80,000/- by way of Cash towards black. Subsequently the builder gave me
a receipt cum allotment letter stating that the flat is booked & I will
have to pay him the remaining amount as per the progress of the project else he
will have the right to can cell the booking or charge interest on it. I started
receiving reminder for paying the balance money but I did not pay up because the
project did not take off as promised, therefore I wrote a letter stating that I
wish to cancel the booking and the builder pay me back my money, that was in
the year 1998 on receiving it he immediately sent me a legal notice stating
that I better pay him up and also denied receiving Rs. 80,000/- in cash. Though
I did not acknowledge the legal notice. I rushed to him with surprise why he
denied having received Rs. 80,000/- cash to which he did not wanted the amount
to appear on record and he told me that I should got in touch with any of the
estate agent and get rid off the flat soon but I could not since the market was
slack. Just ten days before I went to him and again reminded him about the
facts and pleaded him to repay my amount paid to him to which he denied and
said I will have to pay him an interest of Rs.150 per sq. ft. over and above.
Moreover I also understand that the flat which I had booked has been already
sold to some other party. Can I do recover my money from the builder?
A. If the Builder has issued the
receipt for the cash or acknowledged the said amount then your amount of
Rs.80,000/- is safe beside Rs.50,000/- paid by way of cheque and the cheque
along with receipt of Rs.80,000/- is sufficient to prove that the Builder has
received a sum of Rs.1,30,000/-. If the Project has not been started or not
completed as per the terms of the agreement, the Builder is under obligation to
refund the entire amount along with interest on your demand. For that you can
file the complaint with the District Consumer Forum of your Area who has the
jurisdiction to settle the dispute up to Rs.5,00,000/-.
Q13. Our society’s land is yet to be
conveyed to the Managing Committee of the society by the builder. I would like
to know if in such circumstances the managing Committee can increase or revise
maintenance charges of the bungalow owners of the society?
A. Yes, maintenance charges can be
revised or increased from time to time by the Society due to increase in the
cost of maintenance.
Q14. I have read that in Delhi, Bombay,
Chennai and Calcutta many property sales deals are conducted through POWER OF
ATTORNEY. Are such transactions legal as it is doubtful if any registration is
effected thereby not paying the relevant Stamp Duty/Registration fees under
the India Stamp Act and The Registration Act. Can such Power
of Attorney be revoked by the executant?
A. Transaction of property by way of
agreement to sell with power of attorney is valid transaction. In such case the
purchaser does not get the title but his possession is always protected under
Transfer of Property Act. Power of Attorney with consideration is irrevocable.
As we have stated above that such documents does not give title so there is no
question of payment of Stamp Duty. Stamp Duty will be charged on the Registration
of Proper Sale Deed.
Q15. What are the documents
required to legally own a house?
A. Ownership of a house can be by the
following ways : i) By way of allotment by the Development Authorities like
DDA, GDA, HUDA and other such authorities. In such cases Allotment letter
issued by the authorities is the title document. ii) By way of allotment by
Co-operative Group Housing Societies. In such cases Share Certificate would
constitute title document. iii) By purchase from a private builder/person. In
such cases a Sale/Conveyance/Transfer deed. Deed duly registered on required
Stamp Duty would be the legal title document to own a house.
Q16. How do I own a house?
A. You can own a house in any of the
following manner : i) by purchasing from a private person/builder ii) by
allotment from the Development Authorities like DDA/GDA/HUDA etc. iii) by
becoming a member of any co-operative Group Housing Society.
Q17. I have purchased a shop. All
money for this shop paid by me. But after the sale deed it come to my knowledge
that property already mortgaged by the bank as an equitable mortgage and the loan
account of the vender in bank going in very bad condition. So in future bank
can take any action to recover the loan. In this procedure bank can sale my
shop by auction. Please suggest me what should I do to save my property?
A. The law is well settled that in
any transaction Buyer has to be beware. If you have purchased the property
without seeing and taking original sale deed from the seller then it is your
mistake, as ignorance of law is no excuse. The Bank has full right to take over
and sell the shop. It is better you pay the amount to the bank and file
recovery suit against the Seller. The Sale Deed in your favour may contain the
clause that the property is free from all the encumbrances. On that you can
also file the criminal complaint of cheating against the Seller.
Q18. I had purchased a sfreehold
property. After the registration of sale deed, I have come to know
that High Court had passed injunction and had retrained the sellers from
alienating, selling transferring the property. But the sellers were not aware
of such an injunction/restrain. Anyhow, now the sellers are setting the dispute
by compromise with the party who has filed the suit against the sellers. After
the case in withdrawn/compromised, will I get a good title to the property or will
the sale deed in my favour (executed during stay period) become void. I mean to
say, does the sale deed become null and void. Or after the objections/stay is
removed and disputes settled, it becomes valid and perfect.
A. If the dispute is settled and case
pending in the High Court is withdrawn as settled, your title is good and you
continued to be the owner of the said property with clear title.
Q19. If power of attorney papers are
given to somebody with the original papers of the land, can it be transferred
to that person’s name(with whom now the papers lie)?
A. Yes, but if the Power of Attorney
is Registered under Indian Registration Act.