Scrutiny of property documents is a very technical job
which only experts in the matter can correctly carry out. If scrutiny of
property documents is not carried out in a scientific way there is every
likelihood of the purchaser being trapped into litigation.
The first and foremost thing to be considered by a
prospective buyer of an immovable property before finalization of any deal is
to get scrutinized the property documents to know about the marketable title of
the property, genuineness of the document, enforceability of the title and
whether the provisions of the laws, rules and regulations of the revenue
authorities are complied with. Origin of the property, flow of title and
present status of the property are to be verified in a systematic manner.
On being satisfied with the title of the property, the
purchaser can enter into a sale agreement with the vendor. It may be noted that
the property transactions are not executed through oral agreements or
understandings. These transactions are executed underwritten documents which
require compulsory registration. While drafting property documents, be it a
sale agreement, sale deed, gift deed, mortgage deed, will, etc., every minute
care is to be taken to protect the interests of the parties which in turn requires
considering and dealing with the various aspects of the matter to bring out all
the relevant information leaving no scope for ambiguity leading to
interpretation and disputing. Failure to adhere to this golden principle would
lead to misunderstanding between the parties. The fact that a large number of
cases relating to property matters are filed for adjudication of the courts
would itself go to show that there is a great scope for improvement in the scrutiny and drafting of property documents.
Disputable Issues
Precisely, it is not possible to categorically state as to the type of disputes which could arise from out of a property transaction -
It may relate to the valid title of the vendor, time schedule for payment of
sale consideration, handing over possession of the property, non - compliance of
the conditions detailed in the agreement to sell by either of the parties to
the transaction, share of a coparcener on partition of HUF, interpretation of
the recitals of a will, and the like. Failure on your part to take care of
tracing the title of the property in a proper way will lead to various types of
litigation.
When disputes arise, at the first instance people try
to resolve their disputes amicably and when they fail to reach an amicable
settlement they knock the doors of the competent court for resolving the
disputes.
Readers may kindly note that when once the matter becomes sub judice, it will take very long period to get the disputes resolved
by the courts and the litigants are generally prevented to deal with the
property without the permission of the concerned court when the matter is
sub judice.
There could be different type of relief sought from a court of law. The relief may be for specific performance, restraining the
opposite party from interfering with the peaceful possession and enjoyment of
the property, compensation for the loss, recovery suits, eviction suits,
interpretation of a Will, declaratory suits, partition of joint family property
and so on.
When the vendor of a property though initially has
agreed to sell his property to the purchaser at an agreed sale consideration
backs out of his commitment, the purchaser can file a suit against the vendor
for specific performance of the agreement and the court on being satisfied with
your claim, as a purchaser, may adjudicate and pass an order for execution of
the sale deed in your favour. On failure of the vendor to transfer the property
in your name despite the court's order, you may file an execution petition. On
the basis of the execution petition, the court will take necessary steps to get
the property registered in your name as per court's order.
Declaratory suits
Under certain circumstances, when your title to the property is challenged or found to be doubtful or defective, it is necessary
for you to get an order from the court on your title for which purpose you may
need to file a declaratory suit in a court of law.
Filing suit for permanent injunction restraining the
opposite party from interfering with your peaceful possession and enjoyment of the property may be necessary when your property is under the threat of
interference by some third party.
Similarly, when you are a co-owner of a property and
when you desire to get your share in the property to be enjoyed by you
separately and independently, you may have to file a suit for partition.
For realization of the money lent on the security of an
immovable property by way of mortgage, you may have to file a suit for recovery
of the money due from the Mortgagor and on his failure you may have to proceed,
according to law, for realization of the money due by selling the property
mortgaged.
Different types of litigations concerning the land
revenue, land acquisitions, title documents etc., are heard and disposed of by
several quasi judicial authorities such as Tahsildars, Assistant Commissioners,
Deputy Commissioners, Survey Settlement Commissioners. Therefore, knowledge of
authority of these officers would help you a lot in your property matters.
District registrars of Registration and the Inspector General of Registration adjudicate the disputes concerning the stamp duty
payable and under valuation of property. In case you have any grievance with
regard to the valuation and the payment of stamp duty on your property
transfer, you may approach these authorities for remedy to your grievance.
Landlord and Tenant disputes
In respect of disputes between the landlord and tenant
falling within the jurisdiction of the Rent Controller, you may have to file
petition only before the Rent Controller for relief. The disputes may relate to
non-payment of rent, enhancement of rent, fixation of fair rent, eviction of
the tenant, etc.
To initiate cause of action for forgery and fraud in property transactions, you may have to file at the first instance a police
complaint or file a complaint before the Magistrate. Criminal courts have a
different structure and if you lodge a complaint, the State will prosecute the
matter. In criminal matters, there is no suit valuation.
You may invoke writ jurisdiction against the decisions of the Government affecting your property rights by filing writ petition in the
concerned High Court or in the Supreme Court for appropriate relief.
The type of legal remedy explained above is only
illustrative and not exhaustive. In addition to these remedies, there are other
relief/remedies available to a party. The relief is to be sought from a court
of competent jurisdiction and for this purpose having knowledge of the jurisdiction of various courts is necessary. An experienced advocate dealing
with property matters could render very useful service in the matter who may
guide you properly and protect you from unnecessary litigations.
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