Friday 19 April 2013

Misuse of Domestic Violence Act


The domestic violence act hereinafter referred as dv act which was incorporated in the year 2005, The main purpose of this act is to prevent woman only woman from domestic violence, from the bare reading of the definition of the act we can see that the term “aggrieved person” includes only women, means only the men can be prosecuted not the woman, In the 21st century we treat women at par with men and there have been many incidences where a women are involved in insult, humiliation, verbal and emotional abuse to men. It is not a rare possibility that women are indulging in domestic violence against men but this is a reality, our constitution guarantees equality, means men and women must be equally treated, then why in dv act there are provisions for women only and not for men, why women are protected and why there is presumption that men is the only gender which can do cruelty, domestic violence on women, why not vice-versa.

The dv act has given an undue advantage to the women and it is the most lethal weapon which women can use against men to extort, exploit, and threaten men community just like terrorism. The dv act has provisions like right to residence regardless of legal right on the property, maintenance. The provision in law makes the law easily vulnerable to misuse. which is a fact statistics have shown that only 2% of all the cases have resulted in conviction and 98% of the cases are deemed to be fake and there is no provision in dv act if a fake case is lodged then there is no provision for punishment for the women. For the name of protection of women the prosecution of innocent men is against the rule of law, A women can misuse the law very easily like for example  A man can be booked under the DV act if she feels that she has been insulted. Insult is a relative term, which is totally left to her discretion. Interestingly, if she insults and abuses him verbally or even physically, he does not have any legal recourse in this law, even the minor differences in matrimonial ties could invoke the provisions of DV act, moreover the procedure of law is governed by CRPC that means a man even making a very light insult to a women is treated like a criminal. if the case is false the reputation of man and his family is tainted and there are no steps or legal protection available to men to protect his reputation . In other words this law treats men like sitting ducks.

For taking easy divorce and maintenance the DV act is the first weapon used by the women even if she is not subjected to any such type of domestic violence, even if the matter is sub-judice the men are obliged to pay maintenance to women, this means that punishment for men start as soon as false complaint is lodged, which is against the principles of natural justice where there is presumption of innocence.

The fact is DV act has failed to attend the problems faced by women and men on subject of domestic violence, the law is often misused then to be used. The need of the society is to make more gender neutral laws which treat men and women equally in the cases of domestic violence and not to induce fear in the minds of innocent people like most of the men and give an extortion tool to the other gender. The DV act is gender biased on the face of it, The DV act needs to be amended with more gender neutral provisions to prevent its misuse and to achieve gender equality and fair justice.
  
“An unjust law is itself a species of violence. Arrest for its breach is more so.” Mahatma Gandhi


Monday 15 April 2013

Questions – Will, Succession & Probate


Q1. Can a matter relating to obtaining probate of a Will executed by person be referred to Arbitrator?
A. No, Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. The Probate granted by a court is a judgement in “rem” and is conclusion and binding not only on the parties but also on the entire world. As such the parties cannot by mutual consent refer a probate regarding Will to Arbitration.
Q2. What does actually WILL mean’s? How do you make it also tell me the way of registering?
A. WILL is a legal declaration of the intention of a person with respect to his property or a state, which he desires to take effect after his death. WILL is an untitled document which state after the death of a person making the deposition and it is document which can be revoked, modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses at least. However under the provisions of law the Will is not requiring in writing no required to be signed or attesting. The WILL under law is not required to be compulsory registered. It can be executed even on a plain paper and it can be fully valued even if unregistered. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the person who have signed as witnesses on the said WILL .The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars defined for various district and you have to inquire for in this regard from the concerned office as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL.
Q3. One of my friends father died without leaving any Will. He has two married sisters and no brother. One of his sister is insisting that she should be given ½ of the share as other sister is not interested in claiming any share. What is the law in this context?
A. When a Hindu male dies intestate his property devolves around his legal heirs. Section 10 of the Hindu Succession Act,1956 gives in detail the list of Class I heirs who are go be given first preference while dividing the property of the deceased. Rule 1 of this Section provides for a share of property for the widow of the deceased. Rule 2 of this Section provides for a share each for the surviving sons and daughters and the mother of the deceased. In your case though it is not clear whether the deceased has a surviving widow and mother but in case there are only two surviving daughters and a son each one will get a share each i.e. 1/3 of the undivided share in the property. In case one of the sisters of your friend is willing to relinquish her share in favor of the other sister, she can do so by executing a relinquishment deed in her favor  However, in case your friend’s father has left a residential house, which is occupied by your friend and other members of the family, then under Section 23 of the Hindu Succession Act, 1956, his sisters cannot claim partition of the said House till the son (i.e. your friend) chooses to divide the respective shares in the said house.
Q4. Is it true that a person in India cannot name his daughter as a successor in his will and give her all his property? If yes, what happens if a person has only daughter and no son?
A. It is wrong that a person in India cannot give his/her property to his/her daughter in his WILL. Person can give anything to his daughter in a WILL. Even if there is no WILL and a person dies and his only successor is a daughter, the daughter automatically becomes the owner of all the properties/assets of the deceased.
Q5. Payment of deceased depositor’s money without nomination valuing Rs.100000 to the legal heirs on the strength of affidavit and indemnity bonds is the payment payable to legal heirs without production of succession certificate from a foreign bank situated in New Delhi. Kindly guide rules in this regard?
A. The bank can make the payment to the legal heirs on the strength of Indemnity Bond and affidavit. There is no compulsion for obtaining the succession certificate from the court, unless there is dispute among the legal heirs. But Bank sometimes insists for obtaining succession certificate, in order to fully safeguard them. As per information available with us, there are no RBI guidelines in this regards, but you would be still advised to check the same.
Q6. I have an Indian-born client who is a USA citizen. The couple has assets in India and I have several questions regarding the disposition of these assets. They have a trust set up in the US and I want to know whether the plan of disposition outlined in their trusts would be applicable to property In India. What would be the process in India for the transfer of ownership of the assets at the death of a relative to my clients? What process in India for the transfer of ownership of my clients assets at their deaths? Is there any restriction on the removal of intangible assets from India if received as an inheritance?
A. The assets in India can be disposed off as per the trust provided the same are in conformity with Indian Laws. The assets of the relative can be transferred as per the WILL , if any, left by the relative or in what capacity the person is related to the relative to inherit the assets. At the death of your client the assets can be transferred to the legal heirs or as per WILL or as per Trust depending upon the circumstances. The intangible rights can be transferred in India in accordance with the Transfer of Property Act and that too by a registered document.
Q7. I am resident of Delhi, only son of my mother. My father expired long back. I have 3 sisters all are married, I am also married living with my mother in a flat registered in her name. I wish to get the flats registry changed in my name with my mother content. Please advice in details what options do we have for this. I am working and am 29 years old. My wife is a housewife and this flat was bought by her by own resources as well as mine. Please advise if she can gift the house to me, what tax, if any will be payable. I hold NRI status. Does just will from her will be sufficient for this.
A. Your mother can execute a WILL in your favor  However, if your sister will object or you apprehend and objections from their side then please go for a Gift Deed. The gift is required to be registered under the Indian Registration Act. You have to pay stamp duty of 8% on the value of gift, i.e. the property in question. In case your sisters will not object then go for WILL. But at the same time take affidavit from your sisters that they know about execution of WILL in your favor and shall have no objection to the WILL, as a precaution.
Q8. A family relation has died without leaving a Will. He was not married. He has I surviving brother and 2 surviving sisters. All his other brothers and sisters have died. The family is Hindu, under the law who all qualifies to inherit from the estate. Only the surviving brother and sisters or do the children of the other brothers and sisters who have died also qualify?
A. Your case fails under Class II heirs of Hindu Succession Act. The property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in class 1 of the Schedule and secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in class II of the Schedule. Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.
Q9. A family relative has died. He was a Hindu and being a bachelor he did not have immediate family. He has 3 living brothers and sisters and 3 of this brothers and sisters are deceased. The deceased brothers and sisters have spouses and children. He has made a will giving 1/3 share of his estate to one brother who is alive, and 1/3 share each to a nephew and niece of one his surviving sisters. For probate purposes can any of the other living brothers/sisters contest the will. Also can the spouse or children of the deceased brothers/sisters contest the will? What if any, can be legitimate grounds for contesting the will? For probate will the non- -inheritors be required to give any no objection document?
A. On filling the probate proceedings all the legal heirs will get the notices from the court for filling objections if any. If the heir does not appear before the court it will be presumed that such person has no objection to the grant of probate. Children and spouses of the deceased brothers and sister can also file objections to the grant of probate. Will can only be challenged if it is not properly executed or it was not properly attested by the witnesses or the person in fact had not executed at all or the person executed the Will was influenced by the beneficiaries or the beneficiaries had taken interest in the execution of the WILL. Giving of no objection is not necessary but the presumption will be drawn as stated above. But if no objection is given in court, it would be better.
Q10. If I make my will only in my sons name then my daughters entitled to any thing. Also if a person dies without making a will then daughters entitled to legally for the right in the property?
A. You can make WILL in favor of your son by excluding the daughters. If no WILL is made, on death all the legal heirs which include daughters have equal share in the property along with sons.
Q11. My mother owns a flat in her name. Can she sell the flat to me or it has to be gifted or willed only? I am 29 years old, male and have 3 sisters, all married.
A. If your sister will not create problem WILL is the cheapest mode. To further ensure, you take affidavit from your sisters that they know the execution of WILL in your favor and they have no objections. Otherwise gift or Sale Deed is the safer mode. Out of two Gifts is preferable. It has to be executed on appropriate stamp paper (depending upon the value of the property) and registered with the Sub-Registrar.
Source: vakilno1


Sexual Harassment in the Workplace


Supreme Court Bans Sexual Harassment of Women at Work Place
In the Landmark case of Vishaka and others versus State of Rajasthan (AIR 1997 Supreme Court 3011), The Supreme Court has issued extensive guidelines to ensure prevention of sexual harassment of women at their work place. These directions were issued in a writ petition arising out of an incident of alleged brutal gang rape of a social worker in a village of Rajasthan.
This petition was filed for the enforcement of fundamental rights of working women under article 14, 19 and 21 of the constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is an increase in the effort to guard against such social violations; and the resentment towards incidents of sexual harassment is also increasing. This petition was in public interest and was brought as a class action by certain social activist and NGOs.
It has been held by the Supreme Court that it shall be the duty of the employer to prevent the commission of sexual harassment and to provide the procedures for the resolution and prosecution of acts of sexual harassment by taking all the steps required.
Sexual harassment has been described as including such unwelcome sexually determined behavior (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favors;
(c) sexually coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
It has been held that all employers should take appropriate step to prevent sexual harassment: (a) The prohibition of sexual harassment should be notified published and circulated in appropriate ways. (b) The rules/regulation of government of public sector bodies should included rules prohibiting sexual harassment and provide for appropriate penalties. (c) As regard private employees steps should be taken to include the prohibition in this standing orders under the Industrial Employment (Standing Orders) Act, 1946.
The employer has been directed to initiate criminal action by making a complaint in cases where specific offence of sexual harassment has taken place. He is also required to initiate disciplinary action. The above guidelines are in addition to rights available to women under the Protection of Human Rights Act, 1993.
Source : Vakil no1

Sunday 14 April 2013

SOME USEFUL APPS FROM ANROID

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Friday 12 April 2013

ROAD SIDE PROPERTIES: PRECAUTIONARY MEASURES TO BE TAKEN BEFORE PURCHASE BY THE INVESTORS.


Cities are undoubtedly becoming cauldrons of development, demanding fast paced upgrade in the quality of existing roads. May it be the National highways or the State Highways or even Major District Roads, they have seen massive development, fueling a sudden rise in the prices of the properties abutting them. There is a rush of the investors wanting to invest on these roadside properties which hold immense potential for development to yield higher returns.

However, extreme care and caution should be exercised before acquiring such properties given the kind of pitfalls that these properties pose and in some cases the investment may prove to be disastrous. Hence, it is advised that professional advice is sought while finalizing such a deal. Factor that needs to be looked at while contemplating to purchase a roadside property is the vulnerability of the land for compulsory acquisition in case of widening of road.

This vulnerability is also coupled with several other factors like the affect of drainage, rain water storm construction, service lines like electricity underground cables, water pipelines, gas pipelines etc.

The common concerns are listed in a question format and answered as here under:

1. What are the general precautions to be taken while purchasing roadside properties?

In the case of vacant sites, make sure that the land is privately owned having clear marketable and valid legal title thereto. Many a times, the owners of small strip of road side properties encroach the road margin lands which is owned by the government left as “road margin” for future development. Over a long period of time, the adjacent private land owners have enclosed these lands by constructing compound wall and pose as if the same is in their possession. From the eyes of law, they are called as unauthorized encroachment and any length of time cannot legalize the same. It being a public property can be evicted summarily by the governmental authorities by invoking special laws and powers without paying any compensation. So, make sure that the property is excluded from road margin and for this purpose get the property measured by the well experienced and competent official surveyor having regard to the government survey documents like FMB etc. This will make sure that you are paying only for what is legally sold to you and not for road margin government land.

Secondly, in the case of buildings abutting to the road, even if they are built long back, still the land and the building remain unauthorized construction and they are liable to be demolished and no one can claim any kind of compensation even if the building has got door number, electricity supply and water connection. So, one has to make sure that the property being purchased does not include road margin lands, the ownership whereof is vested with the government.

2.  How do I ascertain that the road side land under purchase does not belong to the government?

Carefully examine the title deed under which the seller claims right over the property and make sure that the boundaries mentioned therein tally with the physical condition and the same shall be read in conjunction with the survey sketch annexed to the title deed, if any. Also get the property measured by the official surveyors as provided under the survey laws and regulations. Make sure that the authorities who maintain the roads like the National Highway Authority, State Highway Authority or the PWD etc are consulted in writing about the same.

3. Is it sufficient if I take their opinion and verify the sketch available in these public authorities?

It is advised to take written opinion and seek their consent or no objection letter before acquiring such lands.

4. Do the authorities have an obligation to give the opinion in writing? How can I obtain the same?

Yes. They have an obligation to give correct reply. For this purpose invoke the provisions of the Right to Information Act, 2005 and the Rules framed there under by submitting an application along with the sketch depicting the actual condition of the site and seek specific answers for your queries.
5.   Apart from road margin issue, are there any other aspects to bother about?
Yes. The issue of road widening is something that all investors have to look at critically. Almost all National and State Highway are getting upgraded , redeveloped under different models like PPP, BOP, BOOP etc. and these roads are being transformed from two lanes to four lanes and in some cases even six lanes. Hence, most of the roads are already in the process of land acquisition and some are under widening proposal. In the case of land acquisition being conducted, lands cannot be alienated and any such alienation will be null and void. Hence, make proper enquires with the special land acquisition officers who are in charge of the land acquisition for highway [Both N.H and S.H] and also the other officials concerned.

6.  Where can I contact the Special Land Acquisition Officers?

It depends. However, the easiest way of finding such officers are by approaching the office of revenue authorities like Deputy Commissioners [ District Collectors ], Assistant Commissioners [ Sub Collectors ] and Tahsildars. Also, the National, State High Way authorities and specifically PWD’s. Local government surveyors can also throw some light on the same. So, never hesitate to approach all the authorities concerned. Unfortunately, there is no single office or nodal agency wherein you get complete information.

7.  Does it hold good for roads inside the municipal limits also or only the National and State High ways?

Even the roads running inside the corporation and municipal limits are in the process of being widened and one can find the same in the city master plans being approved by the urban development bodies like Corporation and Municipal councils.  

8. What are the other potential threats of which one should take note of before purchasing these road side properties?.

Most of the investors are not aware of the fact that before constructing any building on the road side, even though in the private property, certain set back has to be left which varies from National Highway, State Highway and major District or Panchayath roads. It varies from 40 meters to 22 meters  The local planning Engineers will be in a better position to guide the buyers to take note of the Master Plans or CDP’s etc.

9.  Is there any data bank or official publication available in this regard to study?

Unfortunately, most of the times, these publications [even official ] are not readily available for citizens’ scrutiny. As the buyers go by the advice of real estate brokers than subject matter expert professionals like Advocates,  Planning Engineers, there is very little awareness on these aspects. Hence, every time, it is advisable to file an application under R.T.I specifically showing the details of the properties which are under consideration for acquisition by specifically mentioning the survey number, village, extent etc duly supported by approved survey plans. This forms important part of Due Diligence. What is important to note here is that only authentic and competent legislation and government orders having the force of law shall be looked into. Advocates are better professionals to be consulted in this connection.

10.  Are there any other things that we should be really worried about?

Yes. One should also take note of the service or civic amenities lines like water supply, underground electricity cables, drainage lines, storm water or rain water drains [ open or closed] as they will also have impact on the value and utilization of the lands. On this, the local engineers will be in a better position to advice. So, it is just not enough to consult an Advocate on the legal and valid marketable title, but also involve the engineers and planners as the importance of taking opinion of multi level professionals is increasing.

The FAR or FSI issue can also be a major problem. This is determined by the developmental or municipal or regulatory bodies.  Though these are developmental aspects they do have direct bearing on the commercial and real estate value when the land is going to be resold or offered as security to banks or financial institutions at a later point of time. The local practicing architects will be in a better position to guide as the same varies from location to location and street to street based on certain parameters like width of the road, nature or classification or zoning of the land etc.

11. What if the land is acquired for widening of road? Will I not get compensation?

Yes. You will get compensation. It is a matter of legal and constitutional right. But, the compensation is determined on the basis of guideline value as fixed by the authorities. The real transaction value is hardly reflected in the deed of sale or title deeds. It is heavily undervalued to save stamp duty and in case of compulsory acquisition. In some cases, compensation is paid in Transferable Developmental Rights [TDR’s], which is in the form of a certificate and one can reliased the value only by selling the same in the open market. Mostly the builders are interested to buy. This is again in the clutches of real estate cartel and certain vested interests. Hence, compensation may not be adequate and commensurate to the loss of land.

12. What are the measures to be taken after purchasing the lands abutting to the public roads?

Firstly, enclose the property by constructing compound wall after obtaining license from the local authorities. Most of the people are under the impression that no license is required to build compound wall. This is important for protecting the property from encroachment and to also ensure that no one puts up any hutment or petty shops in front of your land blocking the road margin. It is better to put temporary fencing in-between your land and road margin to prevent unauthorized occupation of the government road margin land. Even though you will have absolute right to gain access to the public road from any point of your property, the enforcement thereof becomes extremely difficult once vested elements encroach the road margin land blocking your frontage. It is advisable to put up a small shed in the land and obtain door number for the same as that can give some practical benefits during land disputes and to establish your exclusive physical possession over the same in case of litigation's or disputes or rival claims. It is not mandatory or absolutely essential but, highly advisable.

13.Who are the professionals who should be consulted in this regard ?

Advocates, Chartered Accountants, Planning Engineers / Architects, Surveyors will be able to guide from different perspective.

14. Which are the departments one has to deal with generally?

National and State Highway Departments, P.W.D, local self governments life Municipal Corporations, Town Municipalities, Village Panchayaths and developmental authorities like Urban Development Bodies, Electricity Corporations, Water Supply, Drainage boards / departments etc.

Therefore, it is advised that special care is taken while looking for properties abutting to the public roads. It is better to take the professionals to the site and closely examine the proposal from all angles and do not confine the importance to just pricing and legal documentation. This will save an investor from many future risks.
Source : lawyersclubindia

How can you save on house property taxes.


Timing is significant in financial planning especially when you are looking to earn a profit as you need to know when to take advantage of the increase in value. However, it’s equally important to be careful to avoid paying a huge amount as tax. Amit learned his lesson when he sold his house in Delhi in 2012 within 2 years of purchasing it. According to him the property was raking him 60% profits, an offer he could not resist. However, he wasn’t aware of the tax implications of his rushed decision. Not only he had to pay a considerable amount of tax on the profit, but also had to let go of the tax exemptions he was availing on his home loan.

If you sell your house within three years of purchase, the tax benefits you are enjoying on your home loan get reversed and are included in your income when you file your income return. After presenting its compassionate side, the Income Tax Act eyes all properties owned by you for taxation. This includes property from which you are earning i.e. let out property as well as any other property which it is vacant and not rented out (known as Deemed to be Let Out Property or DLOP) as the annual value of the property after standard deductions is taxable under Sec 24B under the head income from house property. However, if you own a farm house, it is considered an agriculture income and does not fall under the tax net.

Let Out Property (LOP)A scenario where an individual enjoys a fixed income from a property in the form of rent, it is known as Let Out Property. The annual value of the property is calculated through the following steps:  

1. Find out the expected rent from the property by comparing the rents of similar kinds of property in different areas and use whichever is higher.

2. Calculate the actual rent received in a year.

3. Take the amount which is higher (from steps 1 & 2).

4. Calculate the amount lost while the place is vacant in a financial year.

5. The difference between 3 & 4 is the annual value of the property, known as the Gross Annual Value (GAV).

6. The net annual value of the property can be calculated by subtracting municipal tax from the gross annual value.

Deemed to be Let Out Property (DLOP) If a taxpayer owns more than one residential property, they can treat only one of those as self occupied while the other(s) will be treated as a ‘deemed to be let out property’, the benefit for which can be claimed under Sec 23(2) on the taxpayer’s choice. The taxpayer is liable to pay tax on these properties after calculating the GAV which is calculated the same way as in case of a Let Out Property. However, the rent calculated will be the standard rent which has been calculated as per the municipal laws. If a taxpayer is a landlord and is paying the municipal taxes for these properties, then both of these will be subtracted to obtain the Net Annual Value. If the taxpayer has four properties, they should preferably consider the property with the highest GAV as self occupied and the rest should be regarded as DLOPs.

Self Occupied PropertyA property is considered to be self occupied when an individual uses it for their own living purpose. If they own more than one property, only one can be considered as a self occupied property and the rest are considered to be LOPs or DLOPs. Certain important points to be noted here are:

  • A property is not taxable under house property taxes if it is used for commercial purposes.
  • The NAV on the property will be zero if the property is occupied throughout the financial year.
  • However, if it is occupied for some part of the year and procured income i.e. rent then the LOP will be calculated for the time period it was let out. The annual value will be calculated in the same way as the LOP.
Deductions A taxpayer can claim the following deductions from the Net Annual Value (NAV) under the section 24(b):

a) Standard Deduction under Section 24(a)Possession of a residential property leads to high maintenance cost; however, regardless of the fact whether the taxpayer has incurred any expense or not, they can claim a flat exemption of 30% on the NAV of the property. This deduction is applicable only for an LOP or DLOP. In case of a self occupied property, a taxpayer is not eligible to claim any deduction as the NAV of the property is nil.

b) Interest on borrowed capital under Section 24(b)The interest paid on the home loan capital by a taxpayer is exempted under section 24(b) regardless of the fact whether the property is self occupied or not.

It’s, therefore, important to understand the taxes applicable on house property and work out an arrangement that is both beneficial and convenient for a taxpayer.
Source :
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Tuesday 9 April 2013

Questions – Real Estate & Property Disputes



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.