PRECAUSTION QUESTIONS BEFORE PURCHASE PROPERTY IN INDIA
Q 1. How ownership of
immovable property is acquired by a person?
Ans. A person may acquire immovable property in any of the following way (i) By inheritance of ancestral property. (ii) Through will. (iii) Acquisition by oneself such as purchase etc. (iv) Through gift, trust, settlement deeds. (v) Grant, sanad / Inam by the Government Through decree of Court. There are two ways of acquisition: 1.By act of parties. Example: Purchase, gift etc. 2. By operation of law Example: Inheritance, decree of Court etc. (for details please see Transfer of Property Act, 1882 (Central Act)) Top Q 2. Is it necessary to register in Office of the Sub Registrar to get khata transferred in respect of property acquired by inheritance? Ans. Not necessary. After the death of owner of a property his heirs, such as wife, children i.e. male and female, married or unmarried may get the Khata transferred on production of death certificate of the owner with details of property held by him to the following officers. If property is an agricultural land - Tahasildar (See Sec.128 of Karnataka Land Revenue Act, 1964) Offices of Corporation, Municipality, Panchayat or City survey if such office exists. Top
Q 3 . Which are the documents
requires to be compulsorily registered?
Ans . 1. Gift deed of immovable property. 2. Other non-testamentary instruments, which purport or Operate to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; 3. Non testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extension of any such right, title or interest; 4. Leases of immovable property from year or for any term exceeding one year, or reserving a yearly rent; 5. Non testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish whether in the present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; 6. The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2000 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A Top Q 4 . How to effect partition of .property? Ans. a. If all the parties have share (common right) in the property partition can be effected. If partition is effected through an instrument such instrument must be compulsorily registered. b. Oral partition affected through memorandum submitted to the concerned authorities need not be registered. c. Stamp duty has to be paid in respect any kind of partition whether it is to be compulsorily registered or not. d. Parties to the partition may agree to effect partition of unequal shares. Top
Q 5. When there are two or
more heirs, can one or two be made full owners by others taking money in lieu
of their share?
Ans . a) Yes. Any of the co-owners can individually or collectively release his / their right in favour of one or more collectively as the case may be and make him / them full owner. This kind of release can be with or without payment of money. This document is called Release. b) Release can be made not only in case of inherited property but also in case of joint purchase/acquisition. Top Q 6. What is a will? Ans. A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator. Top
Q 7 . Who can execute a will?
Ans . a) Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily. b) Parents or guardians cannot execute will on behalf of minors or lunatics. c) Attestation by minimum two witnesses is necessary. d) Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary. e) Beneficiary under a will should not sign as attesting witness. In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt. Top Q 8. Is it compulsory to register a will? Ans . It is not compulsory to register. Executants may register at his option. It is better to register the will. If original is lost a certified copy can be obtained from Sub-Registrar Office. Top
Q 9 . Where can the will be
registered?
Ans. It can be registered in any office of the Sub Registrar in India Top
Q 11. Can a will be
cancelled?
Ans. The testator can cancel his will at anytime during his lifetime. Such cancellation deed requires a Stamp duty of Rs.100-00 Top
Q 12 Can a registered will be rectified or
changed?
Ans If executant of a will wishes to rectify, add to will may do so during his lifetime. This is called codicil. This document does not require stamp duty. Top
Q 13. Can a will be registered
even after death of testator?
Ans. Yes, claiming party under the will have to produce will, records relating to the death of the testator, witness and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register. Top
Q 14. What is the Stamp duty
and Registration fee to register a will?
Ans . There is no Stamp duty on will deed. For registration of will during the life time of the testator Rs.200-00 Registration fee prescribed. To register the will after the death of the testator Registration fee of Rs.200-00 and enquiry fee of Rs.250-00 is prescribed. Top
Q
15 . Is the certified copy of a registered will
available to any body?
Ans . A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator. Top
Q 16 . How to keep contents of
a will confidential?
Ans. Will can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed. Top
Q 17. What is the procedure to
obtain the sealed cover containing a will after the death of the depositor?
Ans . On making an application along with proof of the death of the depositor, District Registrar will open sealed cover in the presence of the applicant and it will be registered. Certified copy will be issued if desired. A fee of Rs.100-00 prescribed to open a sealed cover. Top
Q 18 . What is the procedure
for change of khata of the properties obtained through will?
Ans. After the death of the testator person claiming through the will have to apply to the concerned authorities as explained in question no.2 along with the copy of the will and death proof. Top
Q 19. What are the duties and liabilities
of buyers and sellers while purchasing a property?
Ans. Following is the duties and liabilities of buyers and sellers Before sale liabilities of seller Liabilities of purchaser To inform defects in the property To provide records of right To execute sale deed Payment of consideration To pay of the liabilities on the property Rights Rights of seller Rights of buyer To get rent and profits Right of encumbrance on consideration already paid After completion of sale Liabilities of seller Liabilities of purchaser To hand over possession Liability on accidental or loss to the property Information about right To hand over records of rights after receipt of consideration Duty to pay taxes and liabilities after taking possession of property Rights of seller Rights of buyer If consideration is due encumbrance on property of such dues Incremental value/profit on property Though there are rights and duties the purchaser should carefully examine the following matters; 1) Original documents. 2) How did the seller acquire the property. 3) Encumbrance Certificate of the property for a minimum period of 15 years from Sub Registry Office to know if there are any encumbrances on the property to be purchased. 4) Verify from the concerned court if there are any litigations on the property to be purchased. 5) Verify if there are any litigations, objections in revenue, municipal offices about inheritance or any other matter. 6) If seller is a power of attorney holder, it should be verified from the principal and if such power of attorney is genuine and whether it is still in force. 7) It should be verified whether the transaction is opposed to public policy under Section 22A of the Registration Act, 1908. If so the document will not be registered. 8) If the Property is a granted land to the member of scheduled caste and scheduled tribe, it should be verified if the transaction is in contravention of the terms and conditions of grant and whether permission of the Government is obtained for transfer. Top Q 20 . What are the transactions opposed to public policy? Ans Government has declared the following as opposed to public policy under Section 22A of Registration Act, 1908 namely,-
(1) (a) Agreement to sell,
sale, gift, exchange, mortgage, lease or assignment of land of which the
occupancy right has been granted under Chapter III of the Karnataka Land
Reforms Act, 1961 in contravention of the restrictions imposed under section
61 of the said act and the rules framed there under.
(b) Agreement to sell, sale, gift, exchange or otherwise of any land in excess of the ceiling limit specified in section 63 or 64 of the Karnataka Land Reforms Act, 1961 in contravention of section 74 of the said act and the rules framed there under. (c) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural lands to a person or a family or a joint family who or which has an assured annual income of rupees Two lakhs and above from sources other than agriculture in contravention of section 79-A of the Karnataka Land Reforms Act, 1961 and the rules framed there under. (d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to an educational, religious, charitable institution society, trust, company, association, other body of individuals or a co-operative Society other than the co-operative farming society in contravention of section 79-B of the Karnataka Land Reforms Act, 1961 subject to the exceptions and exemptions provided under section 109 of the said act and the rules framed there under. (e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under the Karnataka Land Grant Rules, 1969 subject to restrictions on sale, transfer, and specific use imposed there under as per the provisions of the said Rules. (2) One cannot possess land as owner, tenant or as mortgagee with possession in excess of 10 units. If a family consists of more than five members, such family may hold two units per head not exceeding 20 units. PART A [See Section 2(A)(35-A) Classification of Lands A Class Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year. B Class (i) Lands having facilities for assured irrigation from such Government Canals and Government Tanks as are capable of supplying water for growing only one crop of paddy in a year. (ii) Lands irrigated by such lift irrigation projects constructed and maintained by the State Government as are capable of supplying water for growing two crops of paddy or one crop of sugarcane in a year. C Class (i) Lands irrigated from any Government sources of irrigation, including lift irrigation projects constructed and maintained by Government other than those coming under A Class and B Class. (ii) Lands on which paddy crop can be raised or areca crop is grown with the help of rain water. (iii) Lands irrigated by lifting water from a river or Government Canal or Government tank where the pumping installation or other device for lifting water is provided and maintained by the land owner. Notes (1) Lands having facilities for irrigation from a Government Source where the system of water supply is suitable for growing only light irrigated crop namely, crops other than paddy and sugarcane shall come under this class. (2) Lands growing irrigated garden crop will come under classes ‘A’, ‘B’ or ‘C’ as the case may be depending upon the source of irrigation and the system of water supply. D Class Lands classified as dry but not having any irrigation facilities from a Government source. Note.- Lands growing paddy or garden crops not coming under A Class, B Class or C Class shall belong to this class. PART B Formula of determining equivalent extent of different classes One Acre of A Class land having soil classification value above 8 annas = 1.3 acres of A Class land having soil classification value below 8 annas = 1.5 acres of B Class land having soil classification value above 8 annas = 2.0 acres of B Class land having soil classification value below 8 annas = 2.5 acres of C class land having soil classification value above 8 annas = 3.0 acres of C class land having soil classification value below 8 annas = 5.4 acres of D Class land. Top Q 21. Is it necessary to obtain permission for transfer of agricultural land granted under Land Grant Rules or granted occupancy right under Land Reforms Act even after lapse of condition for transfer? Ans. Yes. Application should be submitted to Tahasildar and acknowledgement is obtained. If permission is not granted within 15 days after getting acknowledgement, document can be registered as if permission is granted. Top
Q 22 . What are other
restrictions to purchase agricultural land?
Ans . Lands granted to persons belonging to scheduled caste or scheduled tribe cannot be transferred or purchased without prior permission of the Government. This restriction does not apply to mortgagee in favour of co-operative or scheduled banks and partition among family members 2. Social or Industrial organizations can purchase with the permission of the Government (Refer Sec.109 of Karnataka Land Revenue Act, 1964). Top
Q 23. How to get transfer of
immovable property?
Ans . a. As explained under Question 3, if value of property under sale, exchange, lease, and mortgage is Rs.100 or more, deed relating to such transaction must be compulsorily registered (Sec.17 of Registration Act 1908). b. Gift deed, must be registered irrespective of the value of the property. c. After the deed is registered `J' slip is sent to Tahasildar in case of agricultural land and city survey office, in case of city non-agricultural property of properties are under city survey. The purchaser should get confirmed whether khatha is transferred through `J' slip. In areas where there is not city survey is not in operation, one has to apply along with copy of the deed to the concerned Corporation/ Municipal/panchyat office to effect transfer of khatha. Top Q 24 . What is the purpose of Registration? Ans. (a) By Registration of transaction of immovable property will become permanent public record. This is a notice to the general public. Those getting transfer of property should verify whether such property has been previously encumbered. (b) According to Transfer of Property Act right, title or interest can be acquired only if the deed is registered. Top Q 25 . What are the effects of non-registration? Ans . If a deed of transfer, which is compulsorily registrable, is not registered it will not be admissible in evidence (Sec.49 of Registration Act 1908) Top
Q 26. Is there time limit to
present a document for registration after it is executed (signed)?
Ans . a. Document may be presented for registration within four months from the date of execution (signature). b. If a document is executed out of India, the period of four months will be counted from the date of its receipt in India. c. After four months document may be presented within another four months with penalty subject to maximum of ten times the registration fees if the District Registrar grants permission. But document may be presented before Sub Registrar within eight months. Thereafter it cannot be accepted for registration. (For details please see Rule 52 of Karnataka Registration Rules, 1965). Top Q 27. What is the day today timing for acceptance of deeds for registration in Sub Registry offices? Ans. Generally deeds are accepted during working hours. Sub Registrar may stop accepting two hours before closing time if he has sufficient work to attend in respect of deeds already received for registration. Provided deeds may be accepted in emergency cases on payment of extra fee of Rs.200 one hour before sunrise and one hour after sunset and on holidays. Top
Q28. Can the document
presented for registration be withdrawn?
Ans . Registering officer may permit withdrawal of the document before completion of registration on written request by the party who presented the document. Fifty percent of the registration fee is refundable. Likewise Stamp duty is also refundable subject to deductions. (Please see question No.19 on stamp duty F.A.Q.) Top
Q
29 . Who should be present at the time of
registration?
Ans . A deed may be presented for registration either by claiming or executing party but the executant / executants must be present to admit execution (signing) of the deed (Please see Sec.32 of Registration Act 1908). Top
Q 30. What is the course, if
executing party refuses to appear in Registry Office to admit execution?
Ans . a. In such circumstances, registering office will issue notice/ summons to the Executant. If the party does not turn up registering officer will refuse registration. b. Application may be made to the District Registrar on such refusal to the District Registrar who will hold enquiry and decide the case. Rs.250 should be paid for such application. c. One may submit appeal to the Civil Court if District Registrar also refuses to order for registration (For details please see Sec.73, 74, 75, 76 & 77 of Registration Act 1908). Top Q 31. Who can sign as witness to a document? Ans . Any person, above 18 years of age and not a party to the document may sign as witness. Top
Q 32. What is meant by
Identifying witness of person presenting/executing a document?
Ans . In order to identify genuineness of the persons executing the document, signature of identifying witness are obtained. Without such witness, registering officer may refuse registration. Top
Q 33 . Who is authorise to
write a deed?
Ans . Deed may be personally written by the executant or may be drafted by a licensed deed writer or advocate. Top
Q 34 . Is it necessary to
register immovable property by Government as inam or granted on
darkhast?
Ans . They are exempted from registration. Khatha is effected on the basis of orders of Government (see Sec.90 of Registration Act 1908). Top
Q 35. Are there any kind of
documents registered without personal appearances of the parties for
registration?
Ans . 1. Mortgage deed executed under Improvement Loans etc. 2. Certificate of sale issued by revenue court. 3. Documents executed by farmers in favour of primary co-operative land development bank to obtain loan and loan bonds executed by farmers in favour of banks under Karnataka Agricultural Credit Co-operations and Miscellaneous Provisions Act 1975 are sent under Sec.89 of the Registration Act and they are filed. Top
Q 36I.s it necessary to register deed
relating to transfer or assignment of decree relating to immovable
property?
Ans . If value of the property involved in decree is Rs.100 or more and creates, declares, transfer, limit or extinguish right it should be compulsorily registered (See Sec.17 (e) of Registration Act). Top
Q 37. Explain the registration
of adoption deed?
Ans. Adoption deed maybe executed and registered like any other deed. Stamp duty Rs.45 and registration fee Rs.200 are leviable on it. Top
Q 38. Explain the Power of
Attorney?
Ans . There are two kinds of Power of Attorney. 1. General Power of Attorney (GPA) 2. Special Power of Attorney (SPA) a) General Power of Attorney is executed by a person in favour of another to act on behalf of him generally. It may include management of property, Court matter/litigations, sale of mortgage of property or any other act. b) Special Power of Attorney is executed to do a particular act. Power of Attorney holder is answerable to the principal and liable to give accounts to him. Top
Q 39. Does property get
transferred by getting a General Power of Attorney from the person selling
it? Can the agent become owner of property?
Ans . No. It is wrong to say that ownership is transferred by getting General Power of Attorney. Persons purchasing property must get the sale deed registered. This principle applies to other kinds of transactions also. Top
Q 40. Who can execute Power of
Attorney?
Ans . A person who has attained majority may execute power of attorney in favour of another person who has attained majority including family members like brother, sister, father and mother to act on his behalf. If a power of attorney is executed to sell property in favour of relatives other than those mentioned above, 2 percent stamp duty shall be paid on market value of such property. If a power of attorney is executed in favour of developers, Builders of apartment, 4 percent stamp duty shall be paid on market value of such property. (see article 5(f) & 41(a), 41(ea), Schedule to Karnataka Stamp Act 1957). Top Q 41. When would a General Power of Attorney gets cancelled? Ans. a. GPA automatically gets cancelled on the death of Executant. b. Principal (Executant) may cancel it any time. Top
Q 42 .What does Irrevocable
Power of Attorney mean?
Ans. If the Power of attorney is executed for consideration in respect of property it cannot be unilaterally revoked, prejudicial to the interest of the agent (See Sec.202 of Indian Contract Act, 1872). Top
Q 43. What is the meaning of a
Special Power of Attorney?
Ans . (a) Power of Attorney executed by a person in favour of another to act on his behalf for specific purpose is called Special Power of Attorney. (b) If a person is unable to go over to registry office to present a document executed in his favour or to admit execution of document executed (signed) by him, such power of attorney shall be authenticated or attested by a Sub Registrar. Otherwise they are not acceptable for the purpose of registration. Top Q 44 . Is it compulsory to register power of attorney attested in India by Magistrate or notary? Ans . They need not be registered. But General Power of Attorney containing authority to present or admit execution of a document executed by the principle is not acceptable for such presentation or admission of execution unless they are attested or authenticated by a Sub Registrar. Top
Q
45 . Is it compulsory to register General Power of
Attorney executed by persons residing out of India and attested by officers
of Consulate office of India in that country?
Ans. It is not necessary to register. But Stamp duty as per Article 41 shall be paid within 3 months from the date of receipt of the power of attorney in India. Top
Q 46. Is it compulsory to get
a Power of Attorney attested by a Sub Registrar if it has already been
attested by Magistrate or Notary, under which documents are signed by the
agent?
Ans . Not necessary Top
Q 47. What is meant by
Encumbrance Certificate?
Ans . Encumbrance Certificate is a record showing registered transactions pertaining to a property. If mortgage, sale or any other deeds in respect of a property are registered, encumbrance certificate is issued Form No.15. Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate. Top
Q 48. What is meant by a Nil
Encumbrance Certificate?
Ans . If no deeds of transactions are registered in respect of a property nil encumbrance certificate is issued in Form No.16. If Certificate is issued in this form, it means that there are no registered transactions / liabilities on the property for a given period of time unregistered transactions are not included in this certificate. Click here to download Prescribed application form no.22 to obtain Encumbrance Certificate. Top Q 49 . What is the fee for Encumbrance Certificate? Ans . a. Application fee Rs.5 b. Rs.30 for search of first year and Rs.10 for every subsequent year. Example: To obtain Encumbrance Certificate for 13 years. Application fee Rs.5-00 plus first year Rs.30-00 plus 12 years Rs.120-00 and total Rs.155-00. Top
Q
50 . How to obtain Certified Copy of registered
document?
Ans . 1. Any person may obtain certified copy of registered document relating to immovable property. 2. Certified copy of registered will may be obtained only by the testator only during his lifetime. Any person may get copy of a will after the death of the testator on production of death certificate. 3. Copies of registered deed of GPA and other documents relating to movables may be obtained by executant / claimant or agent, representative of such person only. Stamp paper of Rs.10 is required to be produced along with the application and copying fee of Rs.3 for every page of Xerox copy or Rs.5 for every 100 words or part thereof is to be paid. Points to be noted by registering public for registration of a document No. Do's Don'ts 1 Meet registering officer directly for your work Do not depend on middlemen for your work 2 Pay the fees required to be paid directly to the registering officer and obtain receipts Do not pay money to the middlemen. 3 Market value of each area is published. Pay stamp duty as per market value Purchase stamp papers from licensed stamp vendors only. Beware of fake stamp papers 4 Verify whether date of delivery of the registered deed is written on the receipt. Keep the receipt securely with you only Don't handover receipt to middlemen. 5 Get information records to be produced for registration in the registry office Don't go for registration without necessary records. 6 Fee for drafting/writing documents are prescribed. Pay accordingly and obtain receipts for it Don't pay without receipt. Do not pay fee for drafting and registration together if demanded. Pay Registration fee directly in the office. 7 Contact higher authorities for any doubts and complaints. Do not conceal your feelings about the officer or staff. Inform the higher authorities. 8 Obtain registered deeds personally or through registered post. Do not depend on middlemen for return of document after registration. 9 Note true market value of property Under valuation is an offence. Top Q 51 . Where can I register my immovable property ? Ans . Documents pertaining to immovable property shall be registered in the Sub-Registrar office in whose jurisdiction the property is situated Or If you have any problem with the Sub-Registrar's office please approach the District Registrar of your district.In Bangalore Urban district still if you have problem in registration you can visit the Office of the Inspector General of Registration where your registration work pertaining to Bangalore Urban district will be attended. Circular Top |
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