DRAFTING AND OBTENTION OF PROPERTY DOCUMENTS

Before I deal with drafting of the documents it is incumbent on the part of the purchaser of a residential property to ensure that a suitable property is identified in a residential area. In view of the traffic snarls especially in metropolitan cities it is important that proximity to educational institutions, office, market, hospital and public conveyance should be given top priority. After prioritizing the amenities documentation should be considered. Before an absolute sale deed is prepared, an agreement to sell the property should be entered into by the seller with the purchaser. The agreement to sell is governed by the provisions of the Transfer of Property Act 1882 and also the Indian Contract Act 1872. The agreement to sell can be executed on a stamp paper of Rs.200/- denomination.

In Karnataka state in view of the stamp paper scam the use of stamp paper issued by the government department for execution of Absolute sale deed is prohibited. The government has notified that a white paper or Rs.2/- document sheet issued by the Department of Registration will suffice for preparing the document. Apropos the stamp duty the same has to be paid either by way of a demand draft, pay order or a Banker's Cheque in favor of the concerned Sub Registrar. The registration charges have to be paid vide a demand draft or cash to the concerned Sub Registrar. The Sub Registrar will enter the details of the stamp duty paid and registration charges on the reverse of such deed which will be in lieu of the acknowledgement.

Documentation:
The document is compartilised into several parts. In terms of priority it starts with the name and description of the documents. It is followed by the contents of the document which eventually decides the nature of the document. The date and place of the execution of the document will be depicted in the beginning of the document. Normally the date of the document may differ from the date of registration. However the documents should be presented for registration within four months from the date of execution failing which it will attract heavy penalty. Hence the date and place of execution is absolutely necessary to be stated to determine the limitation period and the jurisdiction. The names of the seller and purchaser with their respective age and father's name should be mentioned in the document besides their place and residence. In the case of a married woman her husband's name should be mentioned.
In the case of joint ownership of property due diligence should be exercised in the executing the documents as one of the parties to the contract. In case the party to the contract acts for himself or on his behalf / their behalf or is represented by others, in any other capacity, then it should be specifically mentioned in what capacity he / they are being represented. The intention of the party and the rights and obligation of the parties should also find its place in the document in a chronological order. The document should mention the nature of transaction viz whether it is an absolute sale of property or an agreement to transfer only the right, title and interest. The mode of consideration paid and balance amount of consideration payable if any, as well as the duration of the transaction should be mentioned in the document. Most importantly the covenant of the vendor (seller) as regards clear and marketable title to the property should be indicated in the document.

Possession:
As per the transfer of Property Act possession is the most important aspect of the transaction. It is incumbent to mention in the document the time of delivery of possession of the property. The seller need not give possession of the property until the full consideration amount is paid by the purchaser and receipted accordingly by the seller. The sale of the property must be completed in all respects. The document should specify the mode of possession of the property viz. vacant or rented. If the said property is rented the seller should arrange for a rental agreement between the existing tenant and purchaser of the property. If the purchaser insists on vacant possession the seller should get his tenant, vacated within a period mutually agreed upon by both the seller and purchaser. In view of the legal hassles and time involved in this regard the purchaser normally prefers vacant possession of the property and until then no sale process is completed.
In terms of Section 21 and 22 of the Indian Registration Act it is mandatory to mention the following details of property in the document.

Location and description of the property with the measurement, municipal number, street name, boundaries and details of surrounding properties. In the end the document should state that it is being signed by the executants in the presence of two witnesses. The advocate or a licensed document writer should also sign the document. On Completion of documentation and before the sale process is completed the purchaser should apply for encumbrance certificate in respect of the said property from the Sub Registrar's Office. The encumbrance certificate should be for a minimum period of 13 years prior to registration of the property in the purchaser's name. The encumbrance certificate should indicate that the said property is in the name of the seller. In case of mortgaged property the name of the financer will be indicated in the encumbrance certificate. After the sale deed is registered in the purchaser's name, it is advisable to get an encumbrance certificate indicating the purchaser's name.

Thereafter the purchaser should apply and obtain Katha / Katha Certificate in his / her name. The documents will indicate the House number / door number and the actual measurement of the property based on which the Corporation / Municipal tax will levied.

The purchaser should also obtain mother deed / original documents and latest tax paid receipt from the seller before the process of registration is completed. The mother deed / original document give legal sanctity to the previous ownership and also ensure clear and marketable title to the property. All documents must be kept safely by the purchaser.