Scrutinizing the title deeds of the concerned property is the foremost and mandatory exercise required to be done by the intending purchasers advocate before negotiating and entering into any kind of agreement with the vendor. Apart from having possession, whether physical or constructive, clean and marketable title, free from all kinds of encumbrances is very important. The advocate shall also ascertain the genuiness of such title deeds produced for scrutiny. However, there is no yardstick to trace out the title, rather depends upon the diligence and application of mind of the advocate in logical way.
Generally, origin of the property, subsequent transfers, present status of the property are the three most important steps required to trace the title.
Origin of the property
The Vendor may have acquired the property by various modes such as Government Grant land, allotment made by the Government/various Autonomous bodies/ Housing Societies, etc or even by virtue of Will, sale or inheritance, etc. If the property is a Granted land or allotted by any authority, then the Grant Certificate or Allotment letter issued by the Competent Authority is necessary, apart from the other related documents, which is considered as the origin of the property.
In case of succession or transfer from one hand to the other by way of Will, Sale, Gift, Exchange, Partition, Release, Settlement Deed or inheritance, we require documents of at least 42 years to be scrutinized and verified in the chronological order and methodical examination of all the events or transfers concerned to the property.
The second important aspect is to examine the mode of transfers made by the previous owners of the property. At the same time, genuineness of the relevant documents at the time of such transfer, in any mode, has to be diligently examined. Present status of the property
The next important point is to examine the present status of the property as to who is the present owner, whether his/her name has been recorded in the revenue records of the concerned Authority and whether property taxes are being paid by the owner periodically.
After completion of the above three important stages, scrutiny of various other aspects are to be verified.
Identification of the Property
Identification and description of the property is also another important aspect and the accurate details pertaining to the number assigned to that particular property, its extent, boundaries and name of the Village or Municipal Council or any Autonomous bodies within whose limits the said property comes and the concerned registration Sub District are to be ascertained. If the building exists on that particular property, then the details pertaining to the existing building and whether the building is constructed in accordance with the building sanction plan and relevant Bye Laws of the concerned Authority has to be mentioned. Measurements mentioned in the document should tally with the physical measurements. In case the physical measurement mentioned in the document is less than the actually physical area available has to be considered for the purpose of payment and other documentation. Generally purchaser also has the liability to pay either for the measurements mentioned in the documents or the actual physical measurement, whichever is lesser.
Nature of Title:
Nature of the title such as tenancy right, occupancy right, possessory right, full ownership or any other type is also another important aspect which requires search and examination since all the persons having any kind of interest or right over the property are required to be included at the time of execution of Sale Deed or even the Mortgage Deed.
If the property is tenanted, then it is very important to confirm from the tenant that there is no litigation pending between the vendor and the tenant pertaining to the ownership or the tenancy rights. Further, it is also necessary to inform the tenant about the proposed Sale.
If the property proposed to be conveyed is an ancestral property, then the involvement of Minors interest is very common. In such case, obtaining Court permission before conveying the property is mandatory and required under the provision of Guardianship and Wards Act. If the property is conveyed in violation of the said provisions, then the same can be challenged by the Minor within three years either from the date of attaining majority or from the date of knowledge of such sale.
If the property is basically an agricultural land, then it is mandatory to convert it for non-agricultural purpose if the intention is to construct residential houses on the said property. If it is not converted, then the ground on which conversion can be exempted has to be verified. Any special enactments which are applicable to the property and affecting the title wherever it is applicable, to be looked into. Further, if the property is subject to any government acquisition notification, then the details pertaining to such notification, both preliminary and final, has to be verified thoroughly in various Land Acquisition Department.
E.Cs are necessary to rule out any subsisting encumbrance over the property. But, that cannot be the only document to rule out any encumbrance since there are instances wherein transactions duly registered in the
Concerned Sub-Registrar Offices, are not reflected in the E.Cs. In such case, Advocate has to do the search in the office of the Sub Registrar, on the payment of the prescribed fees. Further, the Advocate has to clearly mention as to which document has to be collected in original, certified copy, Xerox copy. If it is composite property, then most of the owners will retain the originals and only Xerox copies of the title documents will be delivered to the purchaser.