INDIAN LAW GOVERNING PROPERTY PURCHASE IN BANGALORE.

                                                    (Useful article for global real estate investors entering silicon city Bangalore)

 

 

 WRITTEN BY:

 

                        

SRIDHARA BABU.N                                                 ADVOCATE

LEGAL DOCUMENTATIONS

G.K.ROAD, K.R.EXTENSION

TUMKUR-572101

KARNATAKA - INDIA 

MOB: 9880339764

EMAIL: legaldocumentations@yahoo.co.in

Today property investment  in Bangalore is witnessing so many legal hurdles and litigations snatching the peace of investors. Only those investors who are able to get good service of legal professionals are successful in their projects but many developers and construction companies are lacking able legal professional’s services to avoid many legal battles.

 In legal subject no one is complete, his experience with the subject, constant touch, reference of law books, updating with the day today affairs, practical experience

with law enforcing agencies, skill of finding legal solutions by appropriate legal base, skill of reading and writing, skill of communication rather than quarrelling attitude, skill of confidence rather than over confidence, skill of handling complex matters with discussion,  makes an advocate an expert in the field.

Advocates experience certificates and other marks scoring certificates are nothing to do with his practical life. He should  be a jack of all but master of legal reading and writing. A practically expert advocate is having no time to sit here and there waiting for a client to come; he will have good habit of reading in his all leisure and working time.

Advocacy in real estate transactions

In these days advocacy is being degraded with persons having no sense of independent thoughts. Copying techniques are used by many without in-depth analysis of the facts. Analysis of facts and application of law to it to avoid adverse consequences, sixth sense forecasting  ability to assume adverse consequences and having base for it through drafting are the things present advocacy is needed in the competitive world of real estate.

It is not enough to have procedural aspects of registration and stamp duty to survive as an advocate in real estate. Advocacy  in real estate needs thorough knowledge of  likely disputes that may arise in the transactions, Hindu Law, Muslim personal law, Transfer of property act, Difference in joint family property/ ancestral property/ self acquired properties, Law of specific Relief, Law of contract, Law of business affecting family properties, Land revenue provisions affecting land purchases, Land reforms provisions affecting land purchases, Land acquisition laws, SC/ST provisions like PTCL ACTS, High Court and Supreme Court rulings and interpretations on various legal subjects affecting property matters, Country and Town planning law, Law governing Urban development authorities, Comprehensive development plans(CDP), Outline Development Plan(ODP), Master plan as being currently prepared by BMRDA and under preparation by other authorities, Land grant rules affecting transfer of granted lands, Consequence of each line of words in title deeds and other documents, Law governing Rectification of wrongs in title through legal way, Law governing Rectification of documentary wrongs in a legal way,  Law governing evidentiary value of documents, Law governing all rights over the property by several persons, Law of encumbrance and charges, Law of mortgages and its long time consequences, Law governing limitations within which disputes may have arisen, Law governing criminal consequences involved in property transactions,  Law governing matrimonial responsibilities affecting properties, Law governing fiduciary responsibilities affecting properties, Law governing Conversions and Zoning regulations, Law governing Municipal and Local authorities related to properties, Law governing Trees, environment, ground water utilization, possession etc etc etc. There is no end in the list.

Case law:-

SOME OF THE CASE LAW AND PROVISIONS

 GOVERNING PROPERTY   IN KARNATAKA:-

1.     In regard to sc/st lands granted by government on condition restricting alienation, any transfers made even after the restricted period is declared as void. Government permission is necessary for such transfers. This law is laid down by karnataka High court in a case of Narayan parameshwar naik and others vs Deputy commissioner karwar and others 1999(6) KarLJ 244.

 

2.     Only lands granted with restriction on alienation are covered under PTCL ACT 1978.

 

3.     Land granted to a person not belonging to sc/st at the time of grant and if by subsequent notification caste is added to sc/st group. Such lands also attract PTCL ACT. T.M. Rangaiah &another vs The AC Tiptur. 2002(5) KarLJ.188B.

 

4.     Land in respect of which occupancy right is conferred under Land reforms act as a tenant to an sc/st person. Such conferment of occupancy right is not a granted land. Mohammed Jaffar and another vs State of Kar &Others 2003(1)KarLJ 337 (FB).

 

5.     Under PTCL ACT exchange or gift in favour of relative is also prohibited. Siddalingaiah vs State of Kar 1988(3) KarLJ sh.N. 13.

 

6.     Even if such transferee is also a sc/st such transefers also void. Smt Anjanamma vs The DC Kolar Dist 2000(4) KarLJ sh.N.22A.

 

7.     Period of prohibiton starts from the date of issuance of saguvali chit. Karappa Bovi vs Special Dc mys 1990 (3 KarLJ 361 (DB).

 

8.     Settlement among familly does not amount to transfer. Kariaiah vs DC mys Dist 2000(1)KarLJ .sh.N.48.

 

9.     Only those transfers of lands which have taken place on or before 1-1-1949 having completed 30 years prior to 1-1-1979 are saved from the proceedings under PTCL ACT. V.Muniswamy vs Deputy comm kolar 1993(3) KarLJ 346.(DB).

 

10.                         Land granted for full market or upset price; condition for non transefering is not attracted in such cases. Narasimhamurthy vs State of Karnataka and others 2001(2) KarLJ 313A.

 

11.                         Deputy Commissioner is authorised to permit grantee under Rule 9(1) of The Karnataka Land Grant Rules 1969 to sell the land for two reasons (a) For acquiring other land. (b) For improving remaining land. The 50% of market value of the land as determined by DC shall be paid to government at the time of sanctioning. Such applications are allowed only after 5 years of the grant.

12.                         Under Section 67 of The Karnataka Land Revenue Act 1964 all Public Roads, Streets, Lanes, paths, bridges, ditches, dikes and fences on or beside the same, the beds of rivers, streams, nallas, lakes, tanks, canals, water courses and all standing and flowing waters which are not property of individuals are the property of the state government.

 

13.                         In Saudagar asul vs State of Kar, reported in  ILR 1973 Kar 56. The title to kharab land is clarified by Karnataka High Court. “ Kharab land is uncultivable land classified for the purposes of revenue exemption. It cannot be regarded as adjunct to adjoining cultivable land, which gets transferred along with cultivable land. Kharab land is also capable of ownership which must be acquired in the same way as cultivable land.

 

14.                         Under Section 68 of Karnataka Land Revenue act 1964. Deputy Commissioner is entitled to declare any Public street, Path, Lane, as stands extinguished with suitable notification and prescribed procedure.

 

15.                         Under Section 61 of Karnataka Land Reforms act 1961. Occupancy granted to the tenant by the final order of the tribunal cannot be

transferred by the occupant for 15 years from the date of final order. The land can be partitioned among the family, can be bequeathed by will, but it cannot be Sold, Gifted, Exchanged, Mortgaged, Leased or assigned.

 

16.                         Right to property under Art 300A of constitution of India: No person can be deprived of his property save by authority of law. This implies further without paying just compensation for it. Maneka Gandhi case: AIR 1978 SC 597.

 

17.                         Law which authorizes compulsory acquisition should be a law of the legislature or a rule having the force of law. B.D.Chandra Mohan case: AIR 1982 SC 33.

 

18.                         Art 31(1) & (2) OF THE CONSTITUTION OF INDIA imposes limitations on the power of the state and declares the corresponding guarantee of the individual to his right to property. Swami Motor Transport co.(p)ltd case: AIR 1963 SC 864.

 

19.                         If the purchaser relies upon the assertion of the vendor or on his own knowledge and abstain from making inquiry into the real nature of the possession, he cannot escape from the consequences of deemed notice under explanation II to section 3 of T.P. act. Bhagwan B. Kedari case: AIR 2005 Kant 108.

 

20.                         Entries in Revenue Records neither confer any title nor extinguish the title already existing. Balwant Singh’s case: AIR 1997 SC 2719.

 

21.                         Section 41 of T.P.Act says where with the consent, express or implied of persons interested in immoveable property, as an ostensible owner of such property, transfers the same for consideration, the transfer shall not be viodable on the ground that the transferor was not authorised to make it. Provided that the transferee after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

 

22.                        Transferee is also protected if the ostensible owner has effected transfer with the implied or express consent of the real owners. Kushmir Singh case: AIR 2004 SC 2438.

 

23.                         If the revenue sale to the government is declared as void, such sale does not confer any title on the government. As a result if it subsequently sells such property for consideration to a third party, the sale has no effect whatsoever and the vehicle cannot hide behind section 41 of T.P.Act. Ramrao Jankiram case: AIR 1963 SC 827.

 

24.                         A mere agreement for sale does not confer any title. As a result, even if the agreement is valid, the holder will not acquire any title whatsoever. Sunil Kumar Jain case: AIR 1995 SC 1891.

 

25.                         When the property is in custody of a receiver, it means the property is in the custody of the court. Unless consent or leave of the court is obtained, no party will acquire any title just by coming in over such property which is in possession of receiver. Sundharam Bansal case: AIR 1984 SC 1471.

 

26.                         Title and all other interests in the property vests with the purchaser unless a different intention express or implied is shown. Once it is disputed, the burden of proof lies on the party so disputes. Bihnudeo Narain Rai’s case: AIR 1998 SC 3006.

 

27.                         If a person who has no title carries out any improvements will not be acquiring any better position nor by virtue of such improvements he would acquire title to the property in his possession. Also, the expenditure he has incurred for making such improvements cannot be claimed back. R.S.Madanappa case: AIR 1965 SC 1812.

 

28.                         Title to a good will will not pass to the purchaser unless the whole business relating to that good will is transferred. Alapati Venkataramaiah’s case: AIR 1966 SC 115.

 

29.                         Jama bandi is a land revenue demand. Jama bandi entries alone will not create title in the person whose name is found in such records. Jatturam case: AIR 1994 SC 1653.

 

30.                         If a name is entered in revenue records, a presumption arises in favour of the person and unless and until the presumption is rebutted, the entries have to be considered as true and correct. M/S Ashok Leyland Ltd case: 2004 (5) Supreme 115, Syedabad Tea Co. Ltd case: AIR 1983 SC 72, State of Maharastra case: AIR 1985 SC 716.

 

31.                        However, the entries in revenue records alone will not convey title or will not have the effect of extinguishing the already existing title. B. Singh & Anr case: AIR 1997 SC 2719.

 

32.                         If there are two sets of revenue records regarding the same property and their entries conflicting then the latest of the records will prevail. M.Pandey & Ors case: AIR 1981 Cal 74.

 

33.                         Mutation entriescan neither create title nor extinguish title and such entries cannot be treated as evidence of sale. Major P.S. Atwad case: AIR 1995 SC 2125.

 

34.                         Entries in revenue records which are unchanged fairly for a long time will not be rebutted by some stray entries. Sri Bhimeshwara Swamivaru Temple case: AIR 1973 SC 1299.

 

35.                         An agreement of sale does not creates any interest in the property, but it creates an obligation that is inherent to ownership. Soni Lalji case AIR 1967 SC 978. Bai Dosa bai case: AIR 1980 SC 1334.

 

36.                         Sale of property transfers ownership. Inderjit Singh case: AIR 1996 SC 247.

 

37.                         As a consequence of an agreement to sell, land was transferred under an unregistered sale deed. The transferor becomes owner even if he is not put into possession. State of A.P case: AIR 1982 SC 913. 

 

38.                         Unless there is a written agreement for sale is executed, the vendee cannot defend his possession merely on the basis of oral agreement and certain correspondence with the vendor. M.C.Bakhru case: AIR 2002 SC 812.

 

39.                         A contract for sale or an agreement for sale does not create any title in favour of the transferee. But the provision section 53A of T.P.Act creates a bar on the transferor to seek possession from the transferee. Patel Natwarlal Rupji case: AIR 1996 SC 1088.

 

40.                         Family settlement does not amounts to transfer of property. Ramcharan Das case AIR 1966 SC 323. However in a case of Kokilambal &othrs case: AIR 2005 SC 2468 it is held that Settlement is one of the modes of transfer of immoveable and moveable properties. In order to find correct intent deed has to be read as a whole.

 

41.                         Family settlement made orally needs no registration. Kale and othrs case AIR 1976 SC 807. Once it is put to writing it needs registration. Tek Bahadur Bhujil case AIR 1966 SC 292.

 

42.                         If the instrument releases right title or interest in a property without consideration, it is transfer of property. Kuppuswami Chettiar case: AIR 1967 SC 1395. A transfer of co-parcenary property without consideration would be void. Rajamma Dhodura case: 1970 (1) MyLJ 489.

 

43.                         Guardian cannot transfer the property of a minor during the minority of minor without leave of the court and but for the benefit of the minor. If father is the guardian, the sale becomes only voidable when action is brought within three years from the date on which minor attained majority. Amritham Kudumban case: AIR 1991 SC 1256.

 

44.                         Once the partition is given effect to and the property is divided and shared, the plea that person so took the share is a lunatic will have no effect. A plea of Lunacy is sustainable only if the District court has adjudged the person in question as lunatic. Karumanda Gounder case: AIR 1996 SC 1002.

 

45.                         Non mentioning of survey number will not render the mother document void so also the area of the subject matter. Mithukhan case: AIR 1986 MP 39.

 

46.                         If the language employed has ambiguities to enter into it, then intention of the parties has to be gathered by overall survey of the contents of the document in question. P.L.Bapuswami case: AIR 1966 SC 902.

 

47.                         If a document is relatively 30 years old and was obtained from proper custody, then its contents have to be presumed genuine. Smt Anika B. case:  AIR 2005 MP 64.

 

48.                         Just by name true nature of document cannot be disguised nor be treated otherwise. AIR 1958 SC 532.

 

49.                         For clear identification of any immoveable property, the deed should be very clear about the schedule or boundaries of the property. Ig the boundaries are disputed, their description resolves the dispute. M. Dhondusa Religious and Charitable Trust case: ILR 2002 Kar 4832.

 

 

50.                         If one interpretation could give effect to all parts of the deed and other renders some clauses nugatory, then, the interpretation that gives effect to all clauses should be preferred. Radha Sundar Dutta case: AIR 1959 SC 24. D.D.A. case: AIR 1973 SC 2609.

 

51.                         In case of contradictions in statements of document about area and boundaries the boundaries shall prevail. M/S Roy &co case: AIR 1979 Cal 50.

 

52.                         In case of contradictions between the map and mother deed, the mother deed should prevail. Narain Prasad Singh case: AIR 1983 Pat 244.

 

53.                         In case of ambiguity with regard to description of property, description as can be ascertained from the boundaries will settle the issue. Babji Dehuri case: AIR 1996 Ori 183.

 

54.                         In case of contradictions between description and boundaries regarding location of the property, the boundaries shall prevail. Tranglaobi pisiculture co-op soc ltd case: AIR 1969 Mani 84.

 

55.                         Plan appended to a document forms part of that document. If a plan is so appended, extent cannot be determined solely based on measurements ignoring the map. Sumathy Amma case: AIR 1987 Ker 84.

 

56.                         Ownership of surface of the land confers ownership of every thing beneath the land unless a reservation was made by transferor while transferring the ownership. Raja Anand Brahma Shah case: AIR 1967 SC 1081. Sukhdeo Singh case: AIR 1951 SC 288.

 

57.                         Unless other wise provided by the recitals, trees standing on the land will also pass along with the land. DFO sarahan forest division H.P.case: AIR 1968 SC 612.

 

58.                         In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. ONGC ltd case: AIR 2003 SC 2629.

 

59.                         Purchasers of lands proposed for acquisition subsequent to the publication of preliminary notification do not get any right to challenge the acquisition proceedings. ILR 1998 Kar 1441, ILR 1998 (4) Kar 4172.

 

60.                         The mere fact that the properties were not separately entered by the coparcener in the book of account or that he did not maintain a separate account of earnings from these properties would not deprive the properties of their character of self acquired properties. AIR 1976 SC 1715.

 

61.                         Where ancestral property which is sold in execution of decree against the karta is subsequently acquired by a coparcener with the aid of his own funds, the property would be treated as the self acquired property of the co-parcener. Revappa case AIR 1960 Mys 97.

 

62.                         The burden of proving that any particular property is joint family property is on person who on first instance claims it as so. AIR 1960 SC 335.  Only after the possession of adequate nucleus is shown, the onus shifts on to the person who claims the property as self acquired, affirmatively to make out that the property was acquired without any aid from the joint family estate. AIR 1969 SC 1076. One of the tests in determination of the adequacy of the nucleus is the income which yields. AIR 1984 SC 1171.

 

63.                         Where the manager of HUF claims that what is acquired is his separate property he should prove that he acquired it with his separate funds. AIR 1961 SC 1268, AIR 1969 SC 1076.  Where there is an acquisition by the manager in his own name and there is no independent source of income, the presumption arises that the new acquisition was joint family property. AIR 1954 SC 379, AIR 1959 SC 906.

 

64.                         If the admissions are made by a member, then the onus shifts on him to prove that what he admitted is not true. AIR 1961 SC 1268.

 

65.                         A partition which is shown to be prejudicial to the interest of a minor co-parcener will be set aside so far as he is concerned. Ratnam chettiar case: AIR 1976 SC 1. The rule of reopening of partition does not apply to a decree if the minor is properly represented before the court unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem. Bishundeo’s case: AIR 1951 SC 280.

 

66.                         Under Hindu Succession act remarriage is not one of the disqualifications mentioned, she is entitled to inherit. A property vested in her by inheritance before remarriage is not divested on remarriage. Kasturidevi case: AIR 1976 SC 2595.

 

67.                         Mothers claim in deceased sons property is recognized by Mysore High court stating even if she is remarried she does not cease to be his mother. Thayamma case: AIR 1960 Mys 176.

 

68.                         The Tahsildar has got power only to issue survivalship certificate and not the legal heirship certificate. Basavanni Shankar Ammanagi case: 2002 (2) KarLJ  317A.

 

69.                         Any order made by authorities in violation of the principles of natural justice is null and void. K.R.Lakshman case: 1995(5) KarLJ 137A.

 

70.                         Change in use of land falling within the area of ODP & CDP should be effected or undertaken only with the written permission of the planning authority under section 14 of The KT & CP Act 1961. Special DC v/s Narayanappa ILR 1988 Kar 1398.

 

71.                         Where there is a documentary evidence, oral evidence is not entitled to any weight. Murarka Properties (p) ltd AIR 1978 SC 360.

 

72.                         The documents of which registration is necessary under the T.P.Act but not under the registration act fall within the scope of registration act and if not registered are not admissible as evidence of transaction effecting any immovable property comprised therein and do not affect any such immoveable property. Raghunath & othrs case: AIR 1969 SC 1316(1319,1320).

 

73.                         The principle of Mitakshara Law that sons have independent co-parcenary rights in the ancestral estate and that father is subject to their control in he alienation of family property has been almost destroyed by the principle which has been established by the decisions that  sons cannot setup their rights against their fathers alienation for an antecedent debt or against his creditors remedies for

their debts, if not tainted with immorality, though not incurred for the family necessity or benefit. AIR 1952 SC 170. The concurrence of all the adult members is conclusive presumption of law. AIR 1951 Mys 38.FB.

 

74.                         The settled law through decisions of Privy council and various High courts is that “ A sale or mortgage of family property by the managing member is valid on the ground of justifying family necessity where it is: (a) For the payment of decree debts and other debts binding on the family. (b) To pay off the claims of Govt on account of Land Revenue,  cesses, taxes and other dues. (c) For the payment of rents due to the landlord or the payment of decrees for arrears of rent obtained by land lord against family. (d) For the maintenance of members of the family. (e) For the purpose of defraying the expenses of the first marriage of the co-parcener and of daughters born in the family. (f) For the expenses of the necessary family ceremonies including funeral and annual shradha. (g) For the expenses of necessary litigation in connection with the recovery or protection of the joint estate or the establishment of adoption of his minor son. (h) For the expenses of defending the head of the family or any member against a serious criminal charge. (i) For the purpose of carrying on an ancestral trade or business. (j) To raise money to avert a sale or destruction of the whole or any part of the family property. (k) For the expenses of necessary repairs to the family residential house or family properties and for the protection of fields and lands belonging to the family from floods etc.,

 

75.                         Managers discretion regarding legal necessity or benefit of the estate can be subjected to judicial review. AIR 1964 SC 1385.

 

76.                         It is not open for a coparcener to sue for injunction restraining the manager from alienating on the ground that it is not for legal necessity or benefit. B.C.Ray, Justice however observed that injunction may be granted in case of waste or ouster. Sunil kumar case: AIR 1988 SC 576.

 

77.                         Gift by a manager even of a small extent of Joint family property to a relative out of love and affection is void as it is not a gift for pious purposes ( i.e religious and charitable purposes ) within the meaning of that expression in Hindu Law. Guramma v/s Mallappa AIR 1964 SC 510. see also AIR 1967 SC 569. A gift to a concubine or stranger is void. AIR 1980 SC 253.

 

78.                         MUSLIM LAW: Doctrine of pre-emption was developed as a custom under muslim law from early days. This is to restrain and prevent a stranger coming in between or among  co sharers or neighbors which could cause inconvenience. An offer has to be made to near relatives and neighbors first in order to avoid inconvenience. Such principle disscussed and recognised in following decisions. AIR 1996 SC 2146; AIR 2002 SC 2500; AIR 1958 SC 838; AIR 1991 SC 1055; AIR 2001 SC 2611. Under Shia law only co sharers are entitled to right of pre-emption.

 

79.                         Muslim Law or any other personal Law should not over ride the statute. Thus where T.P.Act applies, no right of pre-emption would arise unless the title has passed according to the Act. The demand of exercise of right of pre-emption shold e made after registration of sale deed. AIR 1960 SC 1368; AIR 1961 SC 1747; AIR 1968 SC 450.

 

80.                         Right of pre-emption is lost by Estoppel and acquiescence. AIR 1991 SC 1055.

 

81.                         In Mahfooz Ali Khan case: AIR 1980 All 5. Muslim law of pre-emption was applied in certain parts of the country to the owners of the property irrespective of their religious persuasions, which shows that it was not applied as the personal law of muslims but as customary law of that local area.

 

82.                         In case there exists a will or any other kind of disposition of property made by the deceased MUSLIM in his lifetime, it may be limited to one third of his estate, and the remaining two thirds would devolve on the heirs. AIR 2001 SC 3067.

 

83.                         When all the heirs continue to hold the inherited property as tenents in common and one of them wants to recover his share later on, the limitation would not be counted from the death of the deceased but from the date of ouster or denial of title. S.S.Gulam Ghouse case: AIR 1971 SC 2184.

 

84.                         There is no concept of Joint family property, Joint Family Fund or for that matter Joint Family itself under Muslim Law. Therefore, no presumptions could be made in these regards as compared to Hindu Law. AIR

1991 SC 720. But the arrangements of family living to-gether and having common property are either treated as partnership relation or as trust under Trust act.

 

85.                         Adoption is not recognised by muslim law. AIR 1986 J&K 14.

 

86.                         In Krishnamurthy v/s Abdul khadar case AIR 1956 Mys 14 Where the property is acquired by the managing member and all the members of the family are in possession of the family property, it could very well be presumed that the new acquisition is family property.

 

87.                         Under Muslim law different shares are allotted to different heirs, woman is also considered as an heir, father, mother, grand parents, children, wife, husband, sisters, brothers are recognised as heirs differently among Shias and Sunnis with definite shares.

 

88.                         Unless it is proved to the contrary, no acquisition of property by one or many members of the family could be presumed to be the property of all as the representation is unknown to muslim law. Mohd. Ibrahim case: AIR 1976 Mad 84.

 

89.                         Where the property is sold with condition to repurchase, the seller can assign his right to repurchase. Andalammal case: AIR 1962 Mad 378.

 

90.                         An exchange made for compromise of criminal cases between the parties is violative of section 23 of Indian contract Act. Shrihari Jena case: AIR 2002 Ori 195.

 

91.                         The documents of exchange of properties are compulsorily registrable. But some exceptional cases were decided by Punjab & Haryana High Court. In Bhagwan Kaur case: AIR 1990 P&H 89: Where by oral agreement possession exchanged and delivered and revenue records are mutated accordingly. Parties are in possession for long time. It was held that “The exchange cannot be invalidated because it is not registered.” In Paramjit Singh case: AIR 2005 P&H 4: There was a oral exchange of land. Possession delivered and revenue entries mutated and after oral agreement is fully acted upon the parties at later stage

executed the document. It was held that “ May be out of abundant caution, the parties had decided to execute the document admitting the factum of oral agreement and as no new right title was conveyed by the said document, it does not require compulsory registration.

 

92.                         Under section 122 of T.P. Act there is no consideration involved in a gift. The motive, the essential element of gift like love and affection does not constitute consideration. Sonia Bhatia case: AIR 1981 SC 1274.

 

93.                         Father in law can make gift in favour of his daughter in law out of love. But, that does not imply that he can make such a gift in respect of ancestral property. Once the gift of self acquired property is made, it becomes streedhan of daughter in law. Ammathayee @ perumalakkal case: AIR 1967 SC 569.

 

94.                         It is Jurisprudentially settled principle that no person can transfer a better title than what he has. Harihar Prasad Singh case: AIR 1956 SC 305.

 

95.                         A document of mortgage is compulsorily registrable. If not registered, the deed can only be used to evidence debt. AIR 1964 Pat 241.

 

96.                         In a mortgage by conditional sale the debtor and creditor relationship is found where as sale is the out and out transfer of all the rights of the owner and in a sale with a condition to repurchase, the additional ingredient is that, the seller reserves a personal right to repurchase the property. Bhoju Mandal case: AIR 1963 SC 1906. Where there is no debtor and creditor relationship, the transaction cannot be termed as mortgage by conditional sale. Tamboli Ramanlal Motilal case: AIR 1992 SC 1236.

 

97.                         The mortgagor’s right to redeem the mortgage survives until the sale of mortgaged property by the mortgagee is completed by a registered sale deed. Narandas Karsondas case AIR 1977 SC 774.

 

98.                         While interpreting the document the document in question should be read as a whole. Therefore , if one clause of the document is invalid or otherwise, that one clause itself will not render the whole document invalid. AIR 1956 SC 46.

 

99.                         It is common knowledge that laymen do not know nor care about the niceties of drafting. They cannot be expected to possess the expertise of a professional. Therefore, techinical rules that are generally applied to the provisions of law and exceptions should not be applied while interpreting such documents or deeds. AIR 1951 SC 293.

 

100.                   The cardinal rule of construction is that a document must be read as a whole, each clause being read in relation to the other parts of the document, and an attempt should be made to arrive at an interpretation which will harmonize and give effect to other clauses thereof. It is not legitimate to pick out an expression torn from its context and try to interpret the document as a whole in the light of that expression. Such a forced construction on the document in question cannot defeat the very object which its executants had in view. Shri Digambar Jain and others case: AIR 1970 MP 23(26) [FB].

 

101.                   Where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, the later provisions have to be held to be void. Ramkishorelal case: AIR 1963 SC 890.

 

102.                   It is well settled that general words of release do not mean release of rights other than those put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed. Rajagopal Pillai and another case AIR 1975 SC 895.(897).

 

103.                   In construing documents usefulness of the precedents is usually of a limited character, after all the courts have to consider the material and relevant terms of the document with which they are concerned and it is on a fair and reasonable construction of the terms that the nature and character of the transaction evidenced by it has to be determined. Trivenibai case: AIR 1959 SC 620(622).

 

104.                   Where under an agreement an option to vendor is reserved for repurchasing the property sold by him, the option is in the nature of a concession or privilege and may be exercised on strict fulfillment of the conditions it can be exercisable. If the original vendor fails to act punctually according to the terms of the contract, the right to repurchase will be lost and cannot be specifically enforced. Refusal to enforce the terms specifically for failure to abide by the conditions does not amounts to enforcement of a penalty and the court has no power to afford relief against the forfeiture arising as a result of breach of such condition. K. Simrathmull case: AIR 1963 SC 1182 (1188).

 

 

105.                   The person who acquired the property with notice that another person has entered into a contract affecting that property does not acquire title to that property but imposes on him the obligation to hold the property for the benefit of the other person to the extent necessary to give effect to the contract provided that the contract is one of which specific performance can be enforced. Khaja Bi and Others case: AIR 1964 Mys 269 (275). (FB).{ see section 40 of T.P.Act and Section 91 of Indian Trusts Act }

 

106.                   The obligations in the deed which is in the nature of trust is an obligation which can be specifically enforced. Bai Dosabai Mathurdas Govinddas and others case: AIR 1980 SC 1334.

 

107.                   ( To be updated by author from time to time)

 

 

For detailed reference of above case laws following web addresses will help you:

For supreme court cases upto date:

http://www.commonlii.org/in/cases/INSC/  

http://judis.nic.in/supremecourt/chejudis.asp

For Several high court decisions:

http://www.commonlii.org/resources/221.html             

BEFORE VERIFICATION OF TITLE:-

            In these days Advocacy with several people has lost its credibility by screening papers with defective title as passed. The title needs verification by keeping in mind several litigatory aspects, legal and factual positions, document words, boundaries in all previous mother deeds and present title deed etc.,

DOCUMENTS NEEDED

1.     RTC relating to survey number.

2.     Mutation register extract showing how khatedar got the land.

3.     Title deed and parent deeds.

4.     Encumbrance certificate from Subregistrar office for minimum 30 years or as may be suggested afterverification of available documents.

5.     G Tree from previous two generations sworned to before village accountant/ secretary.

6.     Old RTC/ Phanies as may be required after verifications of other documents.

7.     Old M.R.Extracts as may be required after verification of other documents.

8.     Note : Familly settlement deeds/ panchayathi palupatties/ partition deeds are not DOCUMENTS OF TITLE.

9.     Village survey map along with particular survey number lands survey sketch.

10.                        Certificate from Assistant Commissioner office stating land is not covered under any restrictions under Karnataka Land Reforms act, Land Grant Rules and Karnataka PTCL Act.

11.                        Certificate from LAO of the subdivision stating There is no acquisition proceedings in respect of the survey numbers.

12. Upto date tax paid proof, ID proof of sellers etc

NOTE: NEED OF DOCUMENTS DIFFERS IN EACH CASE

BEFORE ENTERING DEVELOPMENT AGREEMENTS

Development activity require numerous governmental approvals,

1.                         First aspect here in karnataka  the persons having more than Rs 2 lakh yearly income cannot buy agricultural land. Permission is necessary for others.

2.                         Second aspect is he should have RTC (land revenue record: Record of Rights) in his name. Permission is necessary for others.

3.                         The land in agricultural zone has to be converted to non agricultural activity by a procedural application having maximum time frame of four months.

4.                         The projects with more than 125 acres of land or 150000 sqmts of construction activity requires State Environment Impact assessment authority approval which is having time frame of 2 months.

5.                         Later non agricultarist companies can purchase land for any developmental purposes thereby   seeking approvals according to   zoning, subdivision, and site plan permitting, engineering, grading, dedications, and infrastructure installation as per the guidelines of local planning authority.

Modern development activities are considered as risky in Karnataka when looked into the changing scenario in the political parties governing government. The present government has brought an amendment to Country and Town Planning Act proposing to prepare Master plan for the development, by sidelining the earlier Out Line Development Plan and Comprehensive Development Plan. Still many developers and investors are blindly investing unconcerned with future consequences. The most important aspect is many are selling government lands with fake documents, Government of Karnataka brought an ordinance to penalise such things. In some cases the title to properties are fraudulently created from out of fake revenue records or fake registered records, some deserted lands are under land mafia gangs with fake documentations, many politicians and once rowdy elements are in the real estate business in bangalore. The company which seeks to invest in lands in bangalore has to keep all these factual position in mind to have healthy purchase of properties.

In Audit Report By Comptroller and Auditor General of INDIA, about the master plan it is observed as follows:

Wasteful expenditure on preparation of Master Plan

  A Singapore based firm expressed interest in developing the Master Plan for the IT corridor. The Information Technology and Bio-technology (IT&BT) Department signed (June 2000) a Memorandum

of Understanding with the firm.

The Urban Development Department responsible for implementation of the project accorded (May 2001) post facto approval for entrusting the work to the firm, in relaxation of the provisions of the Karnataka (Transparency in Public Procurement) Act, 2000 which required invitation of open tenders for jobs/services costing more than Rs. one lakh.

 A consultation fee of US $ 3,60,000 (equivalent to Rs.1.64 crore) was fixed with the firm. The Bangalore Development Authority (BDA) which was appointed nodal agency for the project entered (July 2001) into an agreement with the firm for preparation of the Master Plan stipulating submission of the final report by April 2002. The firm submitted draft report and drawings of the Master Plan in March 2003. The BDA observed (July 2004/January 2005) that the drawings required corrections in terms of legibility, colour scheme, notations, etc., and also were not in conformity with the provisions of the Karnataka Town and Country Planning (KTCP) Act.

The firm had not submitted the corrected final drawings in terms of the KTCP Act and in line with the decision of the BDA (October 2005). The BDA neither extended the time stipulated for completion of the Master Plan beyond April 2002 nor did it levy penalty of US $ 120 per day of delay, as agreed to. A total payment of Rs.1.34 crore was made to the firm (October 2005). 

 

Due to such uncertainty over the proposed master plan it is of serious doubt whether the preparation of Master plan and its implementation in other cities of Karnataka will be successful or not. 

Few words from BDA Master Plan  :

lands in the Protected Land Zone in the Zonal Regulations,  including tanks, forests, lakes, and valley zone call for a different treatment. Valley zones indicated in the Plan should be declared protected areas with limited development as proposed in the zonal regulations. Further development in this zone should be prevented, and assistance given to land holders to move out where particularly hazardous areas have been brought under construction. Projects may be shifted out and given the facility of TDR as compensation, as per the provision available in the Act.

Barring the Protected Land Zone and the  Thippagondanahalli catchment, any land which was under urbanizable area in the Revised CDP 1995 should continue in the urbanizable area in the Revised Master Plan 2015 also.

The basic principles in the view of the Committee should be that a Mainly Residential area should be enabled to retain its residential character. Secondly, large scale commercial development along main corridors of traffic is not desirable. Thirdly, there should be commercial development in an identified neighbourhood hub wherever possible, which is to be determined after proper survey and consideration of all available options. Fourthly, in the new extensions where development is still sparse, there should be no linear commercial development on major arteries, but instead, using the provisions such as Town Planning Scheme, acquisition of land,

and employing public–private partnerships, neighborhood hubs/local centers/city sub-centers should be formed combining good access, urban amenities, parking facilities etc. with expansion of opportunities for employment, services, shopping and recreation.

The BDA needs to adopt a new approach in certain respects:

·         Stand alone pure residential lay-outs are not what the city requires. This was appropriate in the 60s and 70s. The experience of new lay-outs is evidence that lay-outs need to be part of overall plan for the Planning District, with equal importance to economic, and other activities, and facilities for the area to be self-sufficient to a large degree. This is also in the interests of the city as a whole, as otherwise the pressure on the central areas will continue unabated. Such re-working of land use plans is also required in areas where the BDA has already developed major new lay-outs.

o The old sites-and-services approach also needs to give way to the recognition that group housing has greater scope for dense but compact development which needs to be promoted in the city. The BDA should provide land for group housing / multi-family dwellings, which are known to lead to compact development which reduces the requirements of land and cost of providing infra-structure.

o In a city of such magnitude and complexity, given the expectations of the citizens for high quality in services, housing, and neighborhood facilities, there is need to bring in the private sector through partnership. The city sub-centres. Local centres and neighborhood hubs should be developed with private sector participating.

o There is need for imaginative planning in the new extensions. Neighborhood areas in each Planning District  should be home for one or more selected activity such as education, health, IT, recreation and shopping etc. around which the neighborhood hub should develop. The hub itself should provide a wide range of facilities and activities which people require. The list of urban amenities and provisions in such areas should invariably include markets for the informal sector and for farmers to vend their produce.

o There is paucity in large places of congregation and recreation in recent years comparable to the Lal Bagh and Cubbon Park. BDA should locate in outer regions suitable land for such centres, and take up their development.

                  There is need to  provide for low income housing within easy distance from work, and ensure a basic set of services and sanitation in such colonies. Development control and sub-division regulations should be on the basis of detailed plans for such areas. Areas for service personnel (washerwomen, servants, local sanitation workers, etc.)  should be shown in layout plans – up to 5 or 10% of the population.

 

 

            With an eye over the master plan of BDA other Master plans will be prepared by other Urban Development Authorities. Only Zonal reservations of lands will be for different purposes. However Land owners are having Right to object to such zonal reservations by filing objections to Master plan as in case of

CDP. In Bangalore BMRDA is the controlling authority of all planning bodies like BDA, BIAPPA, other TOWN PLANNING AUTHORITIES.  BMRDA is established to regulate planned development and coordinating different local authorities. BMRDA is currently preparing master plan and likely to announce in 2007 January.

 

 

 

          CONCLUSION: I feel hard to conclude the writing about this subject it has various resources to be elicited with active indulgence in the field, many advocates are using various techniques and approaches in the field, we cannot take away our knowledge to any where, we can share it, this is not an end on the subject, but half knowledge implementation without having professional consultancy may drag any one into trouble, i sincerely advice readers to consult legal professionals of your area before any thing can be started in this field.