Professional Documents
Culture Documents
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
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
52. In case of contradictions between the map and mother deed, the
mother deed should prevail. Narain Prasad Singh case: AIR 1983 Pat 244.
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.
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.
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.
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.
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.,
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.
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.
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.
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.
89. Where the property is sold with condition to repurchase, the seller
can assign his right to repurchase. Andalammal case: AIR 1962 Mad 378.
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.
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.
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).
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 }
http://www.commonlii.org/in/cases/INSC/
http://judis.nic.in/supremecourt/chejudis.asp
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.
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.
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.
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.
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.
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.
• 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.
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.