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 revenueauthorities 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 compulsoryregistration. 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.
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 propertywithout the permission of the concerned court when the matter is subjudice.
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 propertyregistered in your name as per court's order.
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 theproperty 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.
Money Suit
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.
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 litigation's.
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