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.

MOHAMMEDAN WILL

My article on Hindu Will was an insight into what you needed to know about the Will. This article deals with "Mohammedan Will".

In Mohammedan Law a "WILL" is known as Wasiyatnama. It is a legal declaration of the intentions of a Mohammedan, regarding disposal of his property after his demise. The original "WILL" is in Arabic language which was later translated by some Mohammedan lawyers. It is reported that Mr. Charles Hamilton translated the original WILL from Persian language to English. The authority on Mohammedan WILL is Hedaya, which means guide. Shaikh Burhan-Ud-din-Ali composed the Hedaya.

Any Mohammedan of sound mind and who is not a minor can bequeath his property by WILL. A Mohammedan is deemed to be a major on completion of 15 years of age. Section 3 of the Indian Majority Act 1875 stipulates that a person shall be deemed to have attained majority when he shall have completed 18 years of age. However it was known that a Mohammedan who has completed 15 years of age before the Indian Majority Act 1875 came into effect is competent to make a valid WILL for bequest of his property. Unlike a Hindu WILL a Will made by a Mohammedan may be oral. In the case of a written WILL no particular form is prescribed. A written WILL is not mandatory. It can be a verbal declaration. What matters is that the intention of the testator (maker of the WILL) should be sufficiently established. Another contrast between a Hindu WILL and Mohammedan WILL is that in the case of the later a written WILL need not be signed. It need not be attested as well. However for the sake of ambiguity and to avoid disputes amongst the legal heirs in future it is advisable to get the WILL attested. A bequest made by a testator to any of his legal heirs through a written WILL is valid only if other heirs agree to the bequest after the death of the testator. The validity of the legal heir is determined at the time of execution of the WILL. In contrast a bequest made by a testator to others who are not legal heirs does not require the approval of legal heirs.

The property to be bequeathed must be in existence at the time of the testators death even though it may not have been in existence at the time of execution of the WILL. The property must be capable of being transferred. The position of the legatee (beneficiary of the WILL) is akin to that of the beneficiary under WAKF in as much as the corpus may be given to someone and the benefits accrued out of the same may be given to another. However there are certain limitations to the testamentary powers of the testator. The testator cannot dispose off more than one third of his property after meeting the debts and funeral expenses and this required the consent of the legal heirs. According to the Mohammedan law in order to be the beneficiary of the bequest, the legatee must be in existence at the time of the death of the testator. A bequest made to a person who is not in existence at the time of the death of the testator is not valid. However a bequest to a child in the womb at the time of death of the testator is valid provided the child is born within 6 months of the date of the WILL. A future bequest is not valid. In case the legatee predeceases the testator the bequest will lapse and the send bequest reverts to the testators estate. If the legatee expires without having any legal heirs then his legacy would pass on to the heirs of the testator.

A WILL executed by a Mohammedan after being proved may be admissible as evidence though it does not require to be probated. The estate of the testator after his demise rests in the Executor of the well provided be agrees to be the Executor from the date of death of the testator. In case the testator dies intestate (without making a WILL) letter of Administration is not required from the Jurisdictional Court to establish right over the property of the testator. However it is required for debts due to the estate of the testator as per Section 212 (2) of the Indian Succession Act.

The WILL can be revoked by the testator under the Mohammedan law. Revocation may be expressly or by implication. Express revocation of a WILL is made by writing or orally, whereas a implied revocation of a WILL is deemed to have been made when the testers does an act from which it infers that a revocation of the Will is established. A WILL can also be revoked by a subsequent WILL where by the testator bequeaths his bequeathed property to another.

The HINDU WILL

It is prudent to make a Will as the division of your properties to all your legal heirs is ensured as per the law.

Section 2(L) of Indian Succession Act 1925 defines "Will" "as the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death." The statutory definition of a Will means a continuous act of gift upto a moment of the donors death and though revocable in his life time is until revocation a continuous act of gift upto the moment of death and does then operate to give the property disposed of the persons designated as beneficiaries.

A Will is also described as an instrument by which a person making a disposition of his property to take effect after his decease and which is in its own nature ambulatory and revocable during his life time "As per Sec 59 of IS Act a person, not being of minor may dispose of his property by Will.

The testator of a Will means a person who makes the Will or the author of the Will. To enable the disposition of the testator's properties as per the Will the testator appoints an Executor. The persons who are entitled to the properties of the testator after his death are mentioned in the Will as Legatees or Beneficiaries. No person mentioned in the Will as Legatees or beneficiaries can be an Executor. If the testator does not appoint an Executor the Jurisdictional Court will appoint an Administrator on an application made by the legatees. The Administrator so appointed will discharge the duties of the Executor.

Probate :
As per the Indian Succession Act Probate is defined as a "Copy of the Will Certified under the seal of a Court of Competent Jurisdiction with grant of administration to the estate of the testator". As per law "a probate granted by a competent Court is conclusive of the validity of such Will until it is revoked and no evidence can be admitted to impeach it except in proceeding for revoking the Probate". Probate cannot be given to a minor or persons of unsound mind.

Probate will be issued only to the Executor of Will on an application filed under Section 222 and 276 of the Indian Succession Act in the Jurisdictional Court. If the Executor is not appointed the Court will grant a letter of Administration to any of the legatees under Section 232 read with Section 234 of the Indian Succession Act. After the Willis proved in the Court the original is to be deposited in the registry of the Court. The Court will issue a copy of the "Will" with a certificate under the seal of the Court. The copy of the Will issued to the Executor is termed as the "Probate". The Will is considered official after the Probate is granted by the Probate division of the High Court.

Codicil :
After obtaining the Probate if the testator desires to add, delete or make any changes or even cancel the Will, the testator can do so by executing a Codicil which has to be a part of the main Will and has to be proved with the Will. However if the testator has appointed a different Executor in the Codicil after obtention of the Probate, then a fresh probate both for the main Will and Codicil has to be granted by the Court. In case the Will is lost the Court may grant a Probate based on the copy of this original Will.

The obtention of Probate and Letter of Administration by the Executor and Legatees is compulsory. However there is a restriction in this case in as much as Section 57 read with Section 213 of Indian Succession Act states that in case of Hindus, Sikhs, Buddhists and Jains the provision is applicable only to Will made after 01.09.1870. Further the Will should have either been made within local limits of High Court of Calcutta, Madras and Bombay or the immovable properties should be situated in these place. The provisions are not applicable to Wills made by Hindus, Sikhs, Jains and Buddhists outside these territories or the immovable properties mentioned in the Will are situated outside these territories. The provisions also apply to Persons who are dying after the commencement of Indian Succession Act.

To sum up Probate is not required for Wills made by Indian Christians, Hindus, Buddhists, Sikhs, Jains and Mohammedans in the following cases.

a) Outside the territories of Lt. Governor of Bengal as on 01.09.1870.
b) Outside the local limit of Civil Jurisdiction of High Court of Madras and Bombay.
c) Where the immovable properties are outside the above limits.

Death of an Executor :
If the Executors dies before the Will is proved or dies after the Will is proved and before administering the Estate of the testator, the Court may agree to a universal or residuary legatee. On proving the Will letter of Administration may be granted to him. A Universal legatee is one to whom the testator has bequeathed all his properties whereas a residuary legatee is one to whom the residue is bestowed after discharging all the liabilities of the testator.

Joint Will :
Two or more persons can make a Joint Will. In the case of Joint Will, the Will comes with effect only after the death of both testators. However no probate can be obtained during the life time of either of the testators of the Will. The revocation of Joint Wills can be made at any time during their life time or after the demise of one of them. In such an event the survivor can revoke the Will. Sec 30 of Hindu Succession Act also enables a member of a Hindu Joint Family to dispose of interests in Joint family's property at the time of his death by Revocation of Will.

Section 62 of Indian Succession Act states that a "Will" is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. Revocation may be absolute or conditional. A Will can be revoked as follows :

a) By operation of law
b) By writing
c) By another Will or Codicil
d) By burning or tearing or otherwise destroying the Will.

Oral Will :
As per Section 57 (C) of Indian Succession Act 1925, no Oral Will can be legally made by even Hindus.
If the deceased has not made any Will then it will be known as he died intestate. In such an event the properties will be shared equally amongst all his legal heirs. When a person dies intestate the legatees will have to apply for and obtain a letter of Administration from the Jurisdictional Court. If the deceased has not left any immovable properties then his heirs will be entitled to succession certificate. In a Hindu Will the testator can bequeath his property to anyone besides his legal heirs if the property is self acquired by him. However such bequeath is not valid if the property is ancestral.

Bequeath to a Unborn Person:
As per the Hindu law no bequeath can be made to an unborn person. Section 112 & 113 of Indian Succession Act states that bequeath to a person not in existence at the date of death of the testator is void.

Appointment of Guardian:
Under the Hindu law, a father has the power to appoint by "Will" a guardian for his property. He can also appoint a guardian for his minor children.

Requisites of a Will:
Section 63 of Indian Succession Act 1925 stipulates the following requisites for preparation of a Will.
a) A Will can be made only by a person of sound mind.
b) A Will must be in writing.
c) It must be duly signed by the testator.
d) It must be duly attested by two witnesses.
e) Attestator must see the testator signing his Will.
f) The witnesses must sign in the presence of the testator.

A Will can be written on a plain paper. It is not mandatory to register a Hindu Will. However if the testator so desires the Will may be registered.

Given below is a specimen of a Will

I ............. son of ................. aged about ........... years presently residing at ............. being in prime health and mentally sound do hereby make and declare this to be my 'Last Will" and testament. I am making this Will out of my own free will without undue influence, coercion or fraud on .........

I bequeath and give all my properties in Schedule I and Schedule II in any form that I may be possessed of and entitled to my said legal heirs equally or in ratio of (mention the ratio of dimension of properties to legal heirs) absolutely subject to payment of all my debts, funeral expenses and testamentary expenses.

Signed by the within named testator ............. in the presence of witnesses who in the testators presence and at his request in the presence of each other have put their signature as Witnesses here under.

Schedule I - All moveable properties like cash, Bank / Corporate Deposits, shares, house hold articles, vehicles, ornaments etc.
Schedule II - All immovable properties like land and building.

1) Name of Witness Testator
Address

2) Name of Witness
Address

This article is written by me and is of general nature and hence an advocate may be consulted for implementation of the legal procedures if necessary.