Ea Book 13 Encylopeadia On REAL ESTATE TRANSACTIONS

ENCYLOPEADIA REAL ESTATE TRANSACTIONS
INTRODUCTION
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Real Estate or immovable property, is any sub-set of land that has been legally
defined and improvements to it have been made by human efforts. There are
five types of Real Estate, namely
1. Residential (housing),
2. Commercial (offices, shops, theatres, hotels, car parks),
3. Industrial (warehouses, factories, power plants),
4. Agricultural (farms, orchards, etc.) and
5. Special purpose (hospitals, schools, etc.)
The residential segment is the largest of the real estate sector and is classified in
three categories namely:
1. affordable housing,
2. mid-income housing and
3. luxury housing
Types of house buyers
There are four categories of property buyers:
(i) Retail shoppers (the average home buyers),

(ii) Additional rental income seekers (who buy second home with a view
to get returns from rentals and long term returns when property value
rises),
(iii) those who want to profit from a face lift: those who invest in cheaper
properties, renovate them and sell for profit,
(iv) Investors: those who have spare cash
However one thing is to be noted in all is this there will similar patterns of care
to be taken while purchasing a real estate whatever the kind it may be.
GENERAL PRECAUTION WHILE PURCHASING THE PROPERTY
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Precaution is better than cure
There is an old English proverb, "Precaution is better than cure", which would
be most appropriate when buying an immovable property.
Although there are several laws in place that protect a purchaser of property,
self-help is the best help and one must do due diligence before buying property.
Some important aspect one must looked at are as briefly as below:
A. Title of property
What is title to a property?
Title is a legal term; it means the ownership right to property.
 Title of property is the prime concern of everyone at the time of

purchasing of a property.
 Every property has a title.
 Title is the evidence of the right of ownership or the ground of right of
ownership.
 Title can be created by act of parties or by operation of law. Title is
acquired by transfer or by operation of law .
The law relating to transfer of immovable property is governed by the Transfer

of Property Act, 1882 .Two other Acts closely connected to it are the Indian
Registration Act 1908 and the Indian Stamp Act, 1899. The Law of Contract,
and the various Statutes passed by State Legislatures from time to time have
important bearing in the matter of ascertaining title to immovable property. Law
relating to succession is another important area connected to investigation of
title.
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It is a settled legal principle that a person cannot convey a better title, than what
he himself has. Clear title to a property is one of the most important factors to
be considered before purchase. the buyer should undertake due diligence, to
ascertain the existence of the title with the seller, the nature of the title and its
marketability and the ability of the seller to convey clear and marketable title,
free from encumbrance.
Documents, for a period of 30 years, if not more (and where documents are not
available, for minimum period of 12 years), must be examined and the seller
may be called upon to provide the following documents / information:
i. Title documents of the property: Government order for grant, succession

certificate, sale deed, gift deed, will, partition deed, etc., evidencing the
transfer of title over the years, culminating in the vesting of property with
the seller.
ii. Nature of title: Leasehold, freehold, or development right.
iii. In case of the seller claiming development rights to the property, the
development agreement and power of attorney, executed by the owners in
favour of the seller.
iv. All title documents being duly stamped and registered at the office of the
jurisdictional sub-registrar of assurances.
v. Khata registered in the name of the seller.
vi. Information on pending or past litigation.
vii. Availability of original title documents with the seller.
Investigation of title is very essential since the ownership of the property is

required to be complete, fair & free from any doubts, risks & interest.
There are various means to investigate the title such as:
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1. by studying the documents of title to ensure that the owner has proper
ownership to the property. The documents of title should be studied very
carefully as any shortfall may lead to a defective title.
2. taking inspection of the original title deeds.
3. taking search of the land records and the records of the Sub-Registrar.
4. taking search of the records of the society where the property is in a
society.
5. issuing public notice in newspapers calling for claims in respect of the
property.
In Maharashtra to check the title verification of the property the investigator

must do the following checks: -
a) Recent 7/12 Extract ( 7-12 Utara) :- It will give idea about the type of
ownership, total number owners ( and their share in property) of the
property. Loan on the property, tenant in the property ( if any), cultivable
and non cultivable area in the property, source of irrigation ( if any),
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assessment for the property, Class of the property, Reservation on
property( if any).
b) All mutations on 7/12 extract ( Ferfar ):- Mutations are the entries made
by the revenue department in respect of any change in ownership of the
property, such changes may be because of death of any owner, Loan
obtained by any owner etc some time it may happen that name of any
person appears in Mutation but not in 7/12 extract, to check such things it
is advisable to check all mutations,
c) Maps :- it is advisable to check maps provided by the government
authorities, this gives better idea about he exact location of the property
and access to the property,
d) Ceiling Limit :- As per the type of the property there is a Limit provided
for the holding of the Land , the purchase must check that the Land which
he is going to purchase will not cross his limit as well as he have to check
that the vendor is also not holding it as excess land. The Khate Utara (8 A
Extract) is a document which gives us idea about the exact holding of the
owner,
e) 6c Certificate ( Varas Register ) :- 6c Certificate is a document which
gives us idea about the names of all Legal Heirs of deceased person. This
document is very important as, it is noticed that some times names of
Female Legal Heirs are not appearing on revenue documents, to avoid
such ambiguities it is advisable to check 6c Certificate
B. Verify the Indentity of the Seller
Similar to verifying the title to the property, the buyer should also ascertain the
identity of the seller and any specific conditions, governing the ability of the
seller to convey the property.
What documents confirm seller‘s identity?
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Documents that establish the identity of the seller include his passport, Aadhaar
card, PAN card, etc.
The following instances may be noted for illustration:
i. Residence status and nationality of the seller, in case of an individual and

whether consents from government authorities are required for the sale.
ii. Identification of all owners, in case of properties held jointly.
iii. Where the seller is a company, trust, partnership firm, society, etc. The
constitution documents of the entity are necessary to confirm its ability to
own and transfer the property, besides ascertaining that the person
executing and registering the sale deed is duly authorised.
iv. Orders from the competent court, permitting sale of the property and
appointing a guardian, where the property is held by a minor or person of
unsound mind.
C. Conversion and land-use permissions
With increasing urbanisation and merging of revenue lands with urban

conglomerates, conversion of property for non-agricultural use assumes crucial
significance, since several state laws restrict purchase of agricultural property
by non-agriculturists.
Secondly, the buyer must examine the Master Plan and satisfy that the property
is developed in accordance with the zoning plan – such as residential,
commercial, industrial, public/semi-public, parks and open spaces, etc. Where
actual use is different from the notified zoning, obtaining orders from the Town
Planning Authority permitting change of land use, is mandatory.
D. Construction Approvals
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For purchase of apartment or land with constructed building, the buyer should
also scrutinise the building plan / layout plan sanctioned by the local municipal
authorities, along with approvals issued by government, statutory and regulatory
authorities, for providing infrastructure facilities, water, sewage, electricity,
environmental clearance, fire safety approval, etc.
An enquiry is also to be made in CRZ and other zones as it is not allowed to any
development in such zones it is necessary for the purchaser to check such zones
before signing any deed. The purchaser also satisfy himself that the seller is not
going to become a Land-less person after said purchase of land.
E. Occupancy Certificate
It is mandatory for the seller to obtain the occupancy certificate from the
competent authority, prior to conveying the property. Use of the property,
without obtaining occupancy, exposes the buyer to penalty under the applicable
building bye-laws, besides the risk of demolition of the property.
F. Status of Tax Payments
Non-payment of property taxes constitute a charge on the property, affecting its

marketability. So, the buyer must verify with the municipal authorities that the
seller has not defaulted on payment of property taxes.
Do ask for the receipts of all utility bills from the seller. Please note here that
once the property is transferred in your name, you will be liable to pay all
pending dues against the property, utility or otherwise.
One may investigate whether there are any proceedings against the seller under
section 281 of the Income-tax Act, 1961. Further if the seller is a nonresident of
India, TDS may be deductible from the consideration paid unless certificate for
non-deduction or lower deduction is obtained from the concerned Income-tax
officer.
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G. Encumbrance
Searches at the jurisdictional sub-registrar office or the official web portal of the
Ministry of Corporate Affairs (if the seller is a company) will reveal
information of any registered encumbrance on the property. By way of caution,
the purchaser may also issue public notice in newspapers, prior to completing
the transaction, calling for claims from interested third parties, if any.
An encumbrance certificate is the answer to many of the queries a home buyer

can have. These include:
How to make sure the property you are buying is not pledged by the seller to a
bank?
Is the person selling you the property actually its legal owner?
Do you know how many hand the property you are buying has changed since its
inception?
A buyer would find the answer to questions like these in an encumbrance

certificate (EC), which is among the many documents that home buyers would
find most crucial to complete their purchase. Considering this is an important
piece of paper to ensure legal ownership over a property, buyers must make
know everything about an encumbrance certificate (EC).
Which authority issues encumbrance certificate?
The sub-registrar in whose jurisdiction the unit exists issues the encumbrance
certificate for the property. Basically, this is the office where the property was
registered at the time of the purchase by the current and previous owners.
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How many types of encumbrance certificates are there?
Encumbrance certificates have two types:
Form 15: If a property has any encumbrances during the period for which the
applicant has sought a certificate, the sub-registrar‘s office issues an
encumbrance certificate on Form 15.
Form 16: If a property has not registered any encumbrances during the period
for which the applicant has sought a certificate, the sub-registrar‘s office issues
a nil-encumbrance certificate on Form 16.
Offline procedure to apply for encumbrance certificate:
In states where ECs are not issued online, the applicant will have to visit the
sub-registrar‘s office where the property in question is registered. Write an
application on a plain paper, clearly mentioning the information you seek, and
submit it along with duly filled Form 22. You will have to pay a nominal fee
along with your application to get the EC. The fee would vary, depending on the
period for which the EC is sought.
[Form 22 is the standard performa used to apply for an encumbrance

certificate.]
While it might take between 15 and 30 days to get an EC offline, the document
is issued in matter of 6 to 7 days in states where the certificate is issued online.
In Delhi, for instance, it takes 21 days to get an EC offline.
Obtaining Encumbrance certificate in Maharashtra
To Process In-Person http://igrmaharashtra.gov.in/frmHOME.aspx
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1. To apply for EC (Encumbrance certificate), applicant has to go to the
respective Sub Registrar office.
2. Go to the Link for Sub registration office in the state and hit the name of
the region under Office Address and Timings to get details.
3. Applicant shall collect the appropriate application form for EC at the
respective office complete the form with details and submit the same with
non-judicial stamp affixed along with documents to the respective
authority as advised.
4. Authorities will announce the fees to be paid. Please pay as advised
5. A Receipt containing Acknowledgement ID is issued to the applicant.
6. This application request will be processed by the department.
7. SMS is triggered to the applicants informing the status of the application.
As per notification, applicant shall visit the office to collect the certificate
Required document for the purpose:
 Application form:
 Address proof of applicant (attested copy)
 Property address. survey number, document/patta number
 Period for which the EC is required
 Applicable fees
 Copy of sale deed of the said property. (any one deed for the land and not
necessary to present the last or latest one)
 Purpose for which the EC is applied for
 Copy of Power of Attorney, in case application is made by the attorney
holder
 Aadhar card
 Property card if available
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How Encumbrance certificate is different from Occupancy certificate and Completion
certificate?
Occupancy certificate Completion certificate Encumbrance certificate
It certifies that a building This is an official statement a legal document that
is for habitation by the that the structure has been clarifies whether or not a
residents created in compliance with the particular property is free
rules from legal or financial
burdens
the local authorities issue It is issued by the local The Encumbrance Certificate
an Occupancy Certificate authority to a builder after the would reflect the legal and
stating their lack of completion of a building in financial associations of the
objection in allowing the compliance with the building property – if the owner has
possession of the project plan and other regulations taken a loan against it, the
certificate would show the
same; if the property is
caught in any legal tussle, the
Encumbrance Certificate
should reflect the same.
H. Physical survey and access to the property
The buyer may undertake a physical survey and confirm the extent and
measurement of the property. In the case of land, it is advisable to identify and
demarcate the boundaries and access to the property and further, ascertain any
other physical attributes that may impede enjoyment of the property.
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I. Compliance under the Real Estate (Regulation and Development)
Act, 2016
The RERA mandates that developers should register their projects with the
authority constituted under the Act. A buyer, intending to buy a property in a
project coming under the ambit of the RERA is advised to verify whether
property has been registered with the authority. Information available on the
official web portal of RERA for each state also provides details of any cases /
complaints filed against the developer of the project and default by developer, if
any and thus, provides useful insight into the credibility of the developer and the
project and helps the buyer make an informed choice.
Buyers should take note of the fact that the law mandates that all real estate
brokers should also be registered with the state RERA, in order to operate
legally. Hence, hire a property broker, only after asking for his RERA
registration. Also, note that agents need to get their RERA registrations
renewed, periodically. Ensure that you are dealing with the right person. One of
the biggest benefits of having a regulatory body is that it requires a standard
process of operation and violators are penalised.
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GENERAL PRECUATIONS WHILE SELLING THE PROPERTY
Selling the real estate is indeed not an easy task, despite the emotional upheaval
there are several tasks that one has to complete prior to selling the property.
These tasks would make the transaction a safe one and provide maximum
returns on investment, which would somewhat offset the emotional burden.
1. Clearing dues
One of the best known ways to get good money for your property is by clearing
the dues on it. Normal real estate rules dictate that if the owner of the property
does not clear the dues, the prospective buyer has to take care of it, but the
buyer then can deduct the amount from the sum payable to the seller. Therefore,
you should clear all dues on your home such as property tax, water tax,
electricity bills, society and maintenance charges and other amounts payable.
Once you clear these dues, you should have the receipts and certificates of
clearance safely with you so that you can produce them later on.
2. Clearing home loan
If you had bought the apartment on borrowed money, you should look to clear
out the loan. Most banks do not charge any money on pre-payment of the loan
or foreclosure. Hence, you should pay the loan borrowed for the property for
sale in India. However, if the amount is very large, you can negotiate with the
buyer to deposit the down payment amount in your loan account to close it.
Alternatively, the buyer can also use the amount that s/he has borrowed from
the bank to close your loan.
3. Organizing the documents
Before entering the property market, you should have all the legal papers in
place. Some of the documents that should be there for ready to move apartments
in India registration certificate, mutation certificate, sales deed, letter of
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allotment, loan clearance certificate (in case there are no outstanding dues on
your property), sanction plan and encumbrance certificate to prove that no legal
dues are outstanding on the property. These documents are mandatory to be
presented to the buyer for scrutiny. They will also prove to be important at the
time of drawing up the agreement.
4. Fixing the House
Prior to holding open house showings, you should clear out your furniture and
personal belongings from the apartment. Hire a storage space to keep your stuff
in and to give a new ambience to your ready to move in apartment in India. You
should also get minor repair works done on your property such as repairs of
light fixtures, taps and shower nozzles and filling up cracks in the wall. If you
can spare some money, you should get the house whitewashed as well.
5. Hiring the right broker
Brokers have a natural vested interest in getting your property sold because of
the commission associated with it. However, select the right one who will look
out for your interest without delaying the sale. A good broker will bring in
serious buyers who understand what your house is worth with respect to the
other properties in the neighborhood. He will also assist in
the negotiation between both parties in the deal.
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REAL ESTATE AGENT
A real estate agent is a licensed professional who arranges real estate

transactions, putting buyers and sellers together and acting as their
representative in negotiations. Real estate agents usually are compensated
completely by a commission—a percentage of the property‘s purchase price—
so their income depends on their ability to close a deal. In almost every state a
real estate agent must work for or be affiliated with a real estate broker (an
individual or a brokerage firm), who is more experienced and licensed to a
higher degree.
Real estate agents usually specialize in either commercial or residential real

estate. Either way, they perform different duties, depending on whether they
work for the buyer or the seller. Agents who work for the seller, also known as
listing agents, advise clients on how to price the property and prepare it for a
sale, including providing tips on last-minute improvements that can boost the
price or encourage speedy offers. Seller agents market the property through
listing services, networking, and advertisements.
Agents who work for the buyer search for available properties that match the
buyer‘s price range and wish list. These agents often look at past sales data on
comparable properties to help prospective buyers come up with a fair bid.
Agents act as go-betweens for the principal parties, carrying offers and
counteroffers and other questions back and forth. Once a bid is accepted, agents
on both sides often continue to work, helping their clients through the
paperwork, conveying communications, advising on inspections and moving,
and generally shepherding the deal through to closing.
It‘s important for consumers to understand whether a real estate agent

represents the buyer, the seller, or both parties; obviously, the agent‘s loyalty
can greatly affect several details of the transaction, including the final price.
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State laws regulate whether an agent can represent both parties in a real estate
transaction, technically known as ―dual agency.‖ Agents must disclose their
representation, so that buyers and sellers are aware of any conflicts of interest.
Real Estate Agent under the Real Estate (Regulation and Development) Act,
2016:
As per the RERA Act 2016, it is mandatory for all the agents to be registered
withReal Estate Agent RERA to work in the real estate sector, which means
only registered agents can facilitate sale and purchase of real estate properties
registered under section 3 of the act. Those not registered with RERA are not
authorized to do any act as laid down in RERA Act.
The registration of an agent is mandatory under section 9 of the Act. The

section states that –
―(1) No real estate agent can facilitate the sale/purchase of properties in real
estate projects registered u/s 3 of the Act without obtaining registration under
section 9.
(2) Every real estate agent shall make an application to the Authority for
registration in such form, manner within such time and accompanied by such
fee and documents as may be prescribed in respective State‘ s rules. The
Authority shall grant a single registration to the real estate agent for the entire
State or Union territory.‖
The Agent has to make an application under section 9(2) to the Real Estate
Regulatory Authority for obtaining the registration certificate. The Application
procedure differs from state to state according to their respective rules., but the
mandatory documents to be submitted are
 Details of the Applicant (Name, address, contact details and the

photograph)
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 Copy of PAN card;
 Brief details of his enterprise (name, registered address, type of

enterprises);
 Particulars of registration as a proprietorship, society, partnership,

company etc. Including bye-laws, MOA, AOA etc.;
Plus any other information as may be specified by the Act, rules or regulation
made thereunder.
Further, the functions of the Real estate agent are provided under section 10 of
the Act-
―Every real estate agent registered u/s 9 shall:-
a) Not facilitate the sale or purchase of any plot, apartment or building, in a real
estate project or part of it, being sold by the promoter in any planning area,
which is not registered with the Authority,
b) maintain and preserve such books of account, records, and documents as may
be prescribed,
c) not involve himself in any unfair trade practices,
d) facilitate the possession of all the information and documents, as the allottee,
is entitled to, at the time of booking of any plot, apartment or building,
e) Discharge such other functions as may be prescribed.‖
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LEASE PROVISION OF PROPERTY IN INDIA
If a property is being used by some other person, apart from the actual owner,
the property is said to be rented out or leased out. To formalise this
arrangement, a rental agreement, known as the lease deed, is entered into.
A lease deed: It is a document or a written contract between the property owner

or a landlord also known as lessor and the tenant or lessee, which contains all
the terms and conditions, including the rent to be paid, security deposit to be
made, etc. A lease deed is usually required, when the property is rented out for a
long period of time. A deed has to be registered, if the lease period is for more
than 11 months.
Content of the lease deed
1. Property details, including area, location, address, structure, furniture and

furnishings, if provided.
2. Lease duration, its validity and provision for its renewal, along with the
terms and conditions for its renewal.
3. Rent, maintenance, security deposit to be paid by the tenant and the due
date. Other important provisions, such as interest and penalty on payment
delay, should also be mentioned. It should also mention the details of
payment to be made by the tenant on a monthly basis, such as electricity
charges, water bills or any other utility costs.
4. Clauses for lease termination should be mentioned in the lease deed,

along with other reasons for which the agreement can be cancelled, such
as breach of deed, use of property for illegal activities, or failure to pay
rent.
Registration of Lease Deed
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According to the Registration Act, 1908, any property being leased for
residential, commercial, cultivation, hereditary allowances, or fisheries purpose,
should be registered, if they are being leased out for more than 11 months.
Documents required for registration of lease deed
The following documents are required for lease deed registration:
 Identity proof, such as Aadhaar Card, driving licence, passport, etc., of

the landlord and tenant.
 Address proof of the authorised signatory, from both the parties.
 Passport-sized colour photographs of the authorised signatory, from both

the parties.
 Company PAN card and company seal/stamp, if it is a commercial

property.
 The original proof/evidence of ownership or title of the property.
 Property documents, such as Index II or tax receipt of the property to be

leased.
 Route map of the property leased out.
Pre-requisite for the rent and lease agreement in India
The tenant-landlord relationship is one of the most inevitable relationships that

we find but it could be among most complicated ones too. When one rents a flat
to somebody it involves a lot of care and precaution which is to be taken. There
are many traps which one could find himself into by not taking precautionary
measures while renting his flat. Many landlords do not prefer rental contracts to
avoid tax payments but one should insist upon having it. The person having a
rental agreement can take help from real estate agencies to formulate terms of
the agreement.
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There are basically two types of rental contracts in India. One is lease
agreement which lasts for 12 months and is covered under Rent Control Laws
and the other one is lease agreement which runs for 11 months which are not
governed by the Rent Control Law. The lease agreements governed by the Rent
Control Laws are governed by the rent regulations put up by the State
Governments and rents are determined by the State Government. The rent is
basically determined by paying attention to the factors like market price of the
property, cost of construction incurred, construction time etc. So here being a
simple logic that older the property lesser would be the rent and vice versa.
When a lease agreement is signed for 12 months, the tenant gets the ownership
of the property for an indefinite period of time. This condition has certainly
propelled the number of problems like tenant refusing to leave the flat etc. The
problem then comes to court and it takes a very long time to get it resolved. So,
in that case a better option would be to have a lease and license agreement for
11 months. The period is renewable after the passage of the said time depending
upon the circumstances. This agreement bestows a right to live only for the said
time period i.e. 11 months. One could also have short term lease agreements but
those are generally very exorbitant ones. This provides a great amount of
security to the landlords from the tenants.
The rental contracts in India are usually in English. One should always have a
keen look at the terms of the contract and if any specific terms are being
included then it should have been explicitly mentioned in the lease agreement.
Sometimes landlords could be really mean and may include certain terms which
could be harmful for the tenants. Every rent control laws of different states have
certified rate of rent that is to be levied accordingly.
The tenant should be vigilant enough to make a note that he is been charged at
the correct rate. For instance the old Karnataka Rent Control act has been
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expired and a new one has emerged in 2001 which says that rent is to be
calculated at 10% per annum of the aggregate amount incurred in construction
and market price of the land on the date of construction.
Rents are usually paid in cash or cheque and bank transfers are usually avoided
by the landlords to be on the safer side. The landlord though might ask to do
part payments in cash and cheques to save his tax payments. In India there is
also a custom of rental/security deposits. They are usually for three to four
months advance but since landlords have got authority to modulate the deposit
amount so one might be asked to pay a higher price for upcoming months. The
deposits are generally given after signing the lease agreement and a receipt is
provided upon paying the same as a proof of payment. At the time of moving
out your deposit/security amount will be delivered back once the landlord has
finished comprehending the damages incurred.
The damages would be covered by the deposit/security amount delivered and

rest of the part is returned back to the tenant. This procedure requires a lot of
deliberations and discussions so one should make sure that he gets a fair deal
with respect to the same.
Online Registration of Rent Agreement in Maharashtra
As per Section 17 of the Registration Act, 1908 which applies to the whole of
India, every agreement for leases of immovable property from year to year, or
for any term exceeding one year, are required to be registered mandatorily. So,
unless the state laws provide otherwise, each and every leave and licence
agreement for a period of 12 months or more, has to be registered.
However, for Maharashtra, the law has been made more stringent and as per the
provisions of Section 55 of the Maharashtra Rent Control Act, 1999, every
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agreement of a tenancy or leave and license has to be in writing and the same
also needs to be mandatorily registered, irrespective of the period of tenancy.
It is the responsibility of the landlord to ensure registration of the rental

agreement, failing which, the landlord may have to pay a penalty of Rs 5,000, as
well subject himself to imprisonment upto three months. In case the agreement
for leave and licence is not registered and any dispute arises between the
landlord and the tenant, the terms and conditions of the agreement as contended
by the tenant shall be taken as the true and correct conditions on which the
immovable property has been given on rent, unless it is proven otherwise.
The registration fee for a tenancy agreement in Maharashtra, depends on where

the property being let out, is located. The registration fees are Rs 1,000, if the
property is situated under any municipal corporation area and it is Rs 500, if the
same is in a rural area. In the absence of any agreement to the contrary, the cost
of stamp duty and registration is to be borne by the tenant.
Process of Online Registration
1. Creating a profile:
This would be the 1st step where one is requird to create a profile on
https://efilingigr.maharashtra.gov.in/ereg/ website and selecting district where
the property is located
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2. Property details page
Post successful creation of the profile, the site redirects you to “Property
Details Page”
Enter details of property like Taluka, Village, Property type, Unit Area, Address
and other details as available on the e-filing website’s “Property Detail Page”.
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Upon successful completion, a token number will be generated. Applicants
needs to use this token number as your user ID for next login.
3. Party Details
In the next step, you need to enter ‗party details‘
Fill in the information required-
Save the details added.
Fill second party details by clicking ―Add : Party Details‖ and save the changes
Click ―Next: Rent & Other Terms‖
4. Rent & Other Terms –

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Enter owner and if applicable, tenant details.
5. Stamp Duty –
The applicant can pay the stamp duty charges and fees online by generating an
online challan receipt. Stamp duty calculation is generally derived basis a few
particulars that need to be mentioned while registering a property:
Complete address of the property
Name of the landlord, occupant, and if applicable, the previous occupant/owner.
If the property has already been included in a city survey, include the CTS
number.
If said property is in the outside town or a land parcel then name of the
geographical area where same is located, like Revenue village or name of
Taluka.
6. Schedule an appointment –
Post successful payment of necessary fees, the applicant needs to book an

appointment with the sub-registrar. Arriving at the sub registrar‘s with the
necessary documents in print ensures that successful registration of the
applicant‘s property is conducted swiftly.
Word of caution:
While the state has simplified online payment for various facilities, all parties
involved in a deal must make sure they do not involve unauthorised third-parties
while completing digital transactions. Try and complete the online transaction
either with the help of a trusted family member or friend or under the guidance
of your lawyer or financial advisor.
Most importantly, entering into tenancies without giving the agreement a legal
validity through the execution of a lease agreement, would be a bad idea,
26
especially keeping in view the instances of wrongdoings in Mumbai‘s rental
real estate market.
27
LEAVE AND LICENSE
A Leave and License is an agreement temporarily made by a licensor and a

licensee which allows the licensee to use and occupy the licensor‘s immovable
property full or part of the same, for the purpose of carrying on business activity
or residential use and pay a fixed amount of rent or as per their mutual
understanding decided and accepted.
Here, there is another confusion assumed by people that Leave & License
agreement and the Rental or Lease agreement are to be the same. But that‘s not
the case both are different from each other. In leave and license the term
License means limited rights/set of rights given by one party to another to
perform certain actions in or upon the immovable property, such rights are
personal and non-transferable and in the Rental or lease agreement the rights are
being transferred for the enjoyment of the immovable property for a certain
period of time by the transferor (lessor) to transferee (lessee) for a consideration
(rent).
All these agreements are governed by the Indian Easement Act, 1882. In the
case of leave and lease, the owner leaves the place with various facilities and
allows the licensee to use it for a specific period of time. Once the leave is over
and the owner returns, the entire set of facilities, which are given for use shall
be left behind when the licensee leaves the premises.
Essential clauses
The main essential clauses to the leave and license agreement are as
follows:
1. Party clause:
A clause identifying the parties to the agreement is mandatory. Party name

clause is an important clause where the names of the licensor and licensee with
28
their address & identity proof are mentioned in the clause. There is a need to
ensure that the business of the licensee to be identified and mention the
Company Identification Number (CIN), if any in the commercial agreement.
2. The definitions clause:
This clause gives meaning to the specific and various terms/words mentioned
/used in the agreement for getting clarity about it in the agreement. This clause
is a self-explanatory clause. Like ―Premise‖, means wherever the word premise
is mentioned it will be understood the same throughout the agreement.
3. Premise/the place of use:
The place used/occupied for residence or commercial use shall be mentioned in

detail with full address describing all sides and borders of the place and also
mention the purpose like in commercial agreement which type of business is
going to be carried out. It should be clearly mentioned in the agreement about
the space which should be used accordingly.
4. Transfer of rights:
This clause is very important as it clearly expresses that the lessor is transferring
the rights of his property to the lessee for a period of time. This clause contains
the main purpose of this agreement and is also imperative to the agreement.
5. Rent and Security deposit:
This clause tells us about the security amount and rent amount clause. Rent is
the consideration which is mutually decided by both parties and sometimes in
commercial agreement along with the base rent the party has to share the profit
percentage with the other party.
The security deposit is to be paid in the context of any dispute/default arising

out of the agreement by the lessee to the lessor as security. This should be
29
ideally paid after the agreement is signed by both parties and returned at the end
of the tenure.
6. Tenure of the Agreement:
The tenure is mostly fixed for 11 months and it is to be mentioned clearly.

However, in commercial agreement, the term may be longer and mutually as
decided.
7. Duties and obligations of both parties:
The duties and obligations of both parties related to this Agreement shall be
mentioned clearly in this clause. Both parties are legally bound to follow the
terms. The duty of the tenant is to take care of the property very well, maintain
peace, law and order in the place, pay the rent on time etc. The duty of the
landlord is to provide proper facilities like water and electricity to the tenant in
the premises for the period of the tenure.
8. Termination:
The way of termination is mentioned in this clause and also about how the
notices shall be served and it can be either terminated by both or either of the
parties. After or before the termination both parties can mutually decide for the
extension/renewal of the agreement.
9. Dispute resolution:
This clause is the most important in the event of any dispute arising out of the
agreement or during the tenure. This clause provides the means of dispute
resolutions. Arbitration, Conciliation and way to court are the most common
ways to dispute resolution.
Remedies available for the lessor/landlord
30
 The lessee has no right to carry on the possession of the property as the
term expires, so he has to vacate the property.
 If any dispute arises during the term then also the lessee cannot deny
returning the possession. In such a situation the lessor has the right to
institute a suit for ejection against the lessee for not vacating the property.
The rent control law currently favors the tenant which prevents the landlords
from overcharging the tenants. Moreover, the right to ownership of property
gets transferred to the tenant in case of a lease which makes it difficult for him
to vacate the tenant. Therefore, landlords do not prefer to enter into agreements
that are over 11 months.
Under section 55 of the Maharashtra Rent Control Act, 1999, it is compulsory

that all agreements bearing 12 months or more of the tenure should be in writing
and registered and pay the required stamp duty.
The penalty for failure to register is imprisonment up to 3 months, or a fine up

to Rs. 5000 or both.
Remedies available for the tenant/lessee defends himself from getting

evicted by the landlord/lessor
Every state has a Rent Control Act, which lays down the various grounds under
which the lessor is legally allowed to evict a lessee. Before this the lessor needs
to acquire details about the said Act.
 In the event of eviction the lessee has the right to challenge the notice and
seek help from the Rent Controller of appropriate jurisdiction and stay the
notice.
 As per the Act, the tenant may take the premises on rent, bearing an
amount fixed as rent for commercial or residential use.
31
 However, legally the owner or the landlord cannot take back the premises
as long as the rent is being paid.
As it is a temporary agreement no major alterations in the property is allowed

and also not use the premises for any other activities originally not intended or
mentioned in the agreement.
Below is the Format of Leave and License Agreement for your ready reference:
LEAVE AND LICENSE AGREEMENT
This agreement is made and executed on (Date) at (City)
Between,
(Name) , Age:About Years,Occupation: , PAN: ,

UID: . Residing at:
HEREINAFTER called ‗the Licensor (which expression shall mean and include
the Licensor above named as also his respective heirs, successors, assigns,
executors and administrators)
AND
(Name) , Age: About Years,Occupation: ,

PAN:_________,UID:________ Residing
at_______________________________________________________________
HEREINAFTER called ‗the Licensee‘ (which expression shall mean and
include only Licensee above named).
32
WHEREAS the Licensor is absolutely seized and possessed of and or otherwise
well and sufficiently entitled to all that constructed portion being unit described
in Schedule hereunder written and are hereafter for the sake of brevity called or
referred to as Licensed Premises and is/are desirous of giving the said premises
on Leave and License basis under Section 24 of the Maharashtra Rent Control
Act, 1999.
AND WHEREAS the Licensee herein is in need of temporary premises for his
use has/have approached the Licensor with a request to allow the
Licensee herein to use and occupy the said premises on Leave and License basis
for a period of Months commencing from and ending on
, on terms and subject to conditions hereafter appearing. AND
WHEREAS the Licensor have agreed to allow the Licensee herein to use and
occupy the said Licensed premises for his aforesaid purposes
only, on Leave and License basis for above mentioned period, on terms and
subject to conditions hereafter appearing;
NOW THEREFORE IT IS HEREBY AGREED TO, DECLARED AND

RECORDED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:-
1) Period: That the Licensor hereby grants to the Licensee herein a revocable
leave and license, to occupy the Licensed Premises, described in Schedule
hereunder written without creating any tenancy rights or any other rights, title
and interest in favour of the Licensee for a period of Months
commencing from and ending on .
2) Rent & Deposit:
Note:The clause 2 will depend on your selection
 That the Licensee shall pay to the Licensor Rs. Per month
towards the compensation and Rs. Interest free refundable
33
deposit, for the use of the said licensed premises. The amount of monthly
compensation shall be payable within first five days of the concerned
month of Leave and License
 That the Licensees shall pay to the Licensor the following amount per
month towards the compensation for the use of the said licensed premises
.
a) Rs ----------------per month for the first --------months,
b) Rs-----------------per month for the next --------months,
c) Rs-----------------per month for the next --------months
The amount of monthly compensation shall be payable within first five days of
the concerned month of Leave and License.
OR
 That the Licensees shall pay to the Licensor Rs--------------per month

towards the compensation and Rs--------------interest free refundable
month of Leave and License.
OR
 That the Licensees shall pay to the Licensor Rs--------------per month

towards the compensation and Rs--------------interest free nonrefundable
month of Leave and License.
34
.
c) Rs-----------------per month for the next --------months.
the concerned month of Leave and License. Licensees shall also pay to the
Licensor Rs--------------interest free refundable deposit, for the use of the said
licensed premises.
.
c) Rs-----------------per month for the next --------months.
the concerned month of Leave and License. Licensees shall also pay to the
Licensor Rs--------------interest free nonrefundable deposit, for the use of the
said licensed premises.
3) Payment of Deposit:
35
 That the Licensee have paid / shall pay the above mentioned
deposit/premium as mentioned above by Cash. Amount Rs.________
OR
 That the ---------------------- has/have paid / shall pay the above mentioned
deposit/premium as mentioned above by Demand Draft No.----------,
dated --------, drawn from ---------------- Bank, ------------- Branch.
Amount Rs.-------------
OR
deposit/premium as mentioned above by Cheque No. -----------, dated-----
---, drawn on the Licensee‘s Banking Account with ---------------- Bank, --
----------- Branch. Amount Rs.-------------
OR
deposit/premium as mentioned above by Transaction Reference No. ------
-------, dated----------, drawn on the Licensee‘s Banking Account with ----
----------- Bank, ----------- Branch. Amount Rs.----------
4) Maintenance Charges:
 That the all outgoings including all rates, taxes, levies, assessment,
maintenance charges, non occupancy charges, etc. in respect of the said
premises shall be paid by the Licensor.
OR
36
 That the Licensee/s herein shall bear and pay all the maintenance charges
in respect of the said Licensed Premises, and other outgoings including
all rates, taxes, levies, assessment, non occupancy charges, etc. in respect
of the said premises shall be paid by the Licensor/s
5) Use: That the Licensed premises shall only be used by the Licensee for
purpose. The Licensee shall maintain the said
premises in its existing condition and damage, if any, caused to the said
premises, the same shall be repaired by the Licensee at its own cost subject to
normal wear and tear. The Licensee shall not do anything in the said premises
which is or is likely to cause a nuisance to the other occupants of the said
building or to the prejudice in any manner to The rights of Licensor in respect
of said premises or shall not do any unlawful activities prohibited By State or
Central Government.
6) Alteration: That the Licensee shall not make or permit to do any alteration or
addition to the construction or arrangements (internal or external) to the
Licensed premises without previous consent in writing from the Licensor.
7) No Tenancy: That the Licensee shall not claim any tenancy right and shall
not have any right to transfer, assign, and sublet or grant any license or sub-
license in respect of the Licensed Premises or any part thereof and also shall not
mortgage or raise any loan against the said premises.
8) Inspection: That, the Licensor shall on reasonable notice given by the

Licensor to the Licensee shall have a right of access either by himself or
through authorized representative to enter, view and inspect the Licensed
premises at reasonable intervals.
9) Cancellation: That, if the Licensee commits default in regular and punctual

payments of monthly compensation as herein before mentioned or commit/s
37
breach of any of the terms, covenants and conditions of this agreement or if any
legislation prohibiting the Leave and License is imposed, the Licensor shall be
entitled to revoke and / or cancel the License hereby granted, by giving notice in
writing of one month and the Licensee too will have the right to vacate the said
premises by giving a notice in writing of one month to the Licensor as
mentioned earlier.
10) Possession: That the immediately at on the expiration or termination or

cancellation of this agreement the Licensee shall vacate the said premises
without delay with all his goods and belongings. In the event of the Licensee
failing and / or neglecting to remove himself and / or his articles from the said
premises on expiry or sooner determination of this Agreement, the Licensor
shall be entitled to recover damages at the rate of double the daily amount of
compensation per day and or alternatively the Licensor shall be entitled to
remove the Licensee and his belongings from the Licensed premises, without
recourse to the Court of Law.
11) Registration: This Agreement is to be registered and the expenditure of

Stamp duty and registration fees and incidental charges, if any, shall be borne
by the Licensee.
Schedule:
(Being the correct description of Flat which is the subject matter of these
presents) All that constructed portion being residential unit bearing__ _(
Apartment/Flat No.) ____, Built-up (Area): ___________, situated on the Floor
of a Building known as ______________ standing on the plot of land bearing
___________________________________________________
, of Village: , situated within the
revenue limits of Tehsil and Dist and situated within the
limits of Municipal Corporation.
38
IN WITNESS WHEREOF the parties hereto have set and subscribed their
respective signatures by way of putting thumb impression electronic signature
hereto in the presence of witness, who are identifying the executants, on the
day, month and year first above written.
Name and Photo Thumb Digitally signed

address impression
Licensee Photo Thumb
Name :
UID:
Address:
Licensor Photo Thumb
Name :
UID:
Address:
Witness of Photo Thumb
execution -cum-
identifier for
Name :
UID :
Address:
Witness of Photo Thumb
execution -cum-
identifier for
Name :
UID :
Address:
39
GIFT
Gift in trust
A gift in trust is a special legal and fiduciary arrangement that allows for an
indirect bequest of assets to a beneficiary. The purpose of a gift in trust is to
avoid the tax on gifts that exceed the annual gift tax exclusion limit.
This type of trust is commonly used to transfer wealth to the next generation.
Gift of property
Gifting is an act, through which a person voluntarily transfers certain rights in

an asset to another person, without any consideration. Even though this is not
like a typical transaction, gifting of a house property has certain income tax
and stamp duty implications.
Legal requirement for the Gift deed
As per the Transfer of Property Act, the transfer of a house property under a
gift, has to be effected by a registered instrument/document, signed by or on
behalf of the person gifting the property and should also be attested by at least
two witnesses.
This means, one cannot just decide to gift a property and do so without
completing the legal procedure. Just like in the case of sale deeds, a gift deed
must also be registered in the sub-registrar‘s office, following the due
procedure.
The registrar shall ensure that proper stamp duty has been affixed on the gift
deed/document when it is presented for registration. The amount of stamp duty
and registration charges payable, with respect to a gift deed, are generally the
same as in the case of a regular sale. However, if the gift deed is executed
between some specified close relatives, some states provide concessions in
stamp duty. For example, Maharashtra has a cap on stamp duty payable on gift
40
of a residential or agricultural property to one‘s spouse, children, grandchildren
or wife of a son who has died, at Rs 200, irrespective of the value of the
property.
Owners gifting their property must be mindful of the fact that as soon as the gift
deed is registered, the owner loses his ownership over the gifted property. This
is to say, the provisions of the gift deed, just like a sale or a relinquishment
deed, come into effect immediately. This is not true in case of a Will, the
provisions of which come into force only after the creator of the Will passes
away.
However, do take note that a gift deed takes effect, only upon the payment of
the requisite stamp duty.
Income tax provision on gift deed
The provisions relating to gift tax have been dealt with under Section 56(2)(x)
of the Income-tax Act, 1961. These provisions have been briefly captured in the
form of the table below:
Kind of gift Monetary Quantum taxable

covered threshold
Any sum of Sum > 50,000 Entire sum of money received

money without
consideration
Any immovable Stamp duty Stamp duty value of the property

property such as value* > Rs
land, building etc 50,000
without
41
consideration
Any immovable Stamp duty Stamp duty

property for value* exceeds value Minus consideration Example
inadequate consideration 1:Stamp duty value Rs 2,00,000
consideration by > Rs 50,000 Consideration Rs 75,000.Taxable
amount is Rs 1.25 lakhs (stamp duty
value exceeds consideration by > Rs
50,000) Example 2 In Example 1, if
consideration is Rs 1,60,000, taxable
gift is is Nil as stamp duty value does
not exceed consideration by > Rs
50,000
Any property Fair market FMV of such property

(jewellery, value *(FMV)
shares, drawings > Rs 50,000
etc) other than
immovable
property without
consideration
Any property FMV exceeds FMV Minus consideration (Same

other than consideration example in case of immovable
immovable by > Rs 50,000 property can be referred)
property for a
consideration
42
Exemption from Gift tax
Category of donee(recipient of Category of donor Occasion

gift) covered
Individual (It may be relevant to Relative – spouse, NA

note here that while gift from brother and sister of
defined relative is not taxable for self and spouse,
donee, income from such gifts brother or sister of
may in some cases taxable in the parents or parents in
hands of donor itself – Example law, any lineal
clubbing provisions, deemed ascendant or
owner concept in house property descendant of self or
etc) spouse, spouse of any
of the relatives
mentioned here.
Individual Any person Marriage of

Individual
Any person Any person Under a will or

by way of
inheritance
Any person Individual In contemplation

of death of
43
donor or payer
Any person Local authority – NA

Panchayat,
Municipality,
Municipal Committee
and District Board,
Cantonment Board
Any person from any fund or NA

foundation or
university or other
educational institution
or hospital or other
medical institution or
any trust or institution
referred to Section
10(23C)
Any person Any charitable or NA

religious trust
registered
under section 12A or
section 12AA
Any fund or trust or institution or Any person NA

any university or other
educational institution or any
44
hospital or other medical
institution established for
charitable/religious/educational
/philanthropic purpose and
approved by the prescribed
authority. [Refer Section 10(23C)
(iv) (v) (vi) and (via)]
Members of HUF HUF Any distribution

of capital assets
on total or
partial partition
of a HUF
Trust created or established solely Individual NA

for the benefit of relative of the
Individual
Due to extensive tax planning using gifts, gifts in India generally fall under the
scrutiny of the tax department, especially if the quantum is huge. Hence, it may
be advisable to maintain documentation to establish genuineness of gift received
and sufficient source of funds with the donor to justify the gift.
GIFTING PROPERTY IN INDIA
According to Section 122 of the Transfer of Property Act, 1882, you can
transfer immovable property through a gift deed. Like a sale deed, a gift deed
contains the details of the property, the transferor and the recipient. But unlike a
sale deed, it allows one to transfer ownership without any exchange of money.
45
A gift deed is a legal document that describes voluntary transfer of gift from
donor (owner of property) to donee (receiver of gift) without any monetary
favor in return. The donor should not be insolvent and should not use this as a
tool for evasion of tax and illegal gains.
Registering a gift deed with the sub-registrar is mandatory under the laws in
India (Section 17 of the Registration Act, 1908 and Section 123 of the Transfer
of Property Act.) If this is not done, the transfer will be invalid. Once a gift deed
is registered, only then the change in the title of ownership of property is
possible. Also, for the recipient to be able to further transfer the property, a
registered gift deed will be required.
WHAT CAN BE GIFTED?
The following conditions should be fulfilled for a property to be a valid gift:
1. It should be movable or immovable property.
2. It must be transferable.
3. It should be an existing property and not a future property.
4. It should be tangible or real.
5. The transferor and the receiver should be alive at the time of the gift.
ESSENTIALS FOR A VALID GIFT DEED
A gift deed should be specific and must also include all the essential elements
for the transfer of property of such nature. This is the reason it is advisable to
get the document drafted with the help of a lawyer. The following essential
things must be fulfilled for a gift deed to be successfully executed:
1. The gift deed should essentially mention the details of the property that is
being gifted.
2. Details of the recipient/receiver are also essential.
46
3. The deed must be signed by the donor i.e. the person gifting the property.
4. Both the donor and receiver must be present in the office of Registrar.
5. The document must be signed by at least 2 witnesses.
6. The deed needs to be stamped with an appropriate non-judicial stamp,

depending upon the value of the property.
WHO CAN MAKE A GIFT DEED?
A person who owns the property can make a gift to another person. An
exception to this rule is the case in which either the donor or the donee is a
minor. Minors are not eligible to form contracts; therefore, they cannot transfer
property as gift. If a donor is a minor, the gift deed is not valid and becomes
void.
In case of donee being a minor, a natural guardian can accept a gift on his
behalf. The guardian acts as a manager of the gifted property. If the gift is
onerous, it cannot be enforced on donee until he/she is a minor. Once the donee
is an adult, he must either accept or return the gift.
The guardians who can receive the gift on behalf of the minor or insane persons
are:
1. Father
2. Father‘s executor
3. Paternal grandfather
4. Paternal grandfather‘s executor
PROCEDURE TO GIFT A PROPERTY
47
The procedure to gift a property can be sub-divided into three steps mentioned
below:
1. Drafting the Gift Deed – A gift deed ensures a legal transfer of the gift and
should be drafted with the help of a lawyer. It describes what is being
transferred, who is transferring the property and to whom. It is a contract
between the donor and the donee where the donor is willingly giving his
property to donee and he/she is accepts the property. It is essential that a gift
must be made by a person voluntarily and not under any compulsion, and
without any exchange of money or any other consideration.
2. Acceptance – Acceptance of the gift deed is another important legal

requirement and the donee must accept the gift during the lifetime of donor. In
case the donee fails to accept the gift, it becomes invalid. The acceptance may
be validated by acts of the recipient such as taking possession of the property.
3. Registration – As per Section 123 of the Transfer of Property Act, a gift of

immovable property cannot pass any title to the donee unless it is registered. It
is mandatory to get it attested by two witnesses during and post registration.
Registration Fee and Stamp Duty for Gift Deed
The stamp duty and the registration fee for the gift deed vary from state to state.
In order to calculate the stamp duty and the registration fee, it is advisable to
consult a local lawyer. The charges for some major cities are listed below:
New Delhi -
In Delhi, the stamp duty and transfer duty is payable @ 4% if the donee is a
woman and @ 6% if the donee is a man. Registration fee is 1% of the total
market value of the property plus Rs.100/- pasting.
48
Bangalore -
In Bangalore, the stamp duty and registration charges depend upon who is
gifting the property:
1. If the donee is not a family member, then the stamp duty will be payable @
5% along with surcharge and cess. The registration fee is 1% of the total market
value of the property.
2. If the donee is a family member, then the registration fee will be Rs 1000 and
the stamp duty:-
 If the property is situated within BMRDA/BBMP/ City Corporation

limits, the stamp duty will be Rs 5000 along with surcharge and cess.
 If the property is situated within city/town/municipal/council/town

panchayat limits, then the stamp duty will be Rs 3000 along with
surcharge and cess.
 If the property is situated within the limits other than the places
mentioned in (i) and (ii), the stamp duty will be Rs 1000 along with
surcharge and cess.
Mumbai -
In Mumbai, the stamp duty and registration fee differ as per the type of the
property which is gifted, such as:-
1. In case of agricultural and residential land, the registration fee is Rs 200 and
the stamp duty is Rs 100, where 1 % is the LBT of the total market value of the
property.
2. In case of any immovable property which is given to a family member, stamp

duty is 3% of the market value of the property along with 1% registration fees.
If a person other than the family member is giving the property, then in that case
49
the stamp duty will be 5% of the market value of the property along with 1 %
registration fees.
Chennai -
The registration fee for the gift deed in Chennai is 1% of the property‘s market
value and stamp duty for the gift deed is 7% of the market value of the property.
Kolkata -
In Kolkata, the values of the registration fee and the stamp duty differ, based
upon who is gifting the property.
1. When the gift deed is made by a family member, the stamp duty is 0.5% of
the market value of the property.
2. When gift deed is made by a person other than a family member:
 If the property is situated in the Panchayet Area, then the stamp duty will
be 5% of total market value of the property.
 If the property is situated in Municipal Areas, Corporation Areas, then the

stamp duty will be 6% of market value of the property.
 If the market value exceeds 40 lakh in both urban and rural areas, then
additional stamp duty of 1% will be charged.
This fee can be paid through demand draft, cheque or cash at the office of sub-
registrar.
Duration of the Process of Gift Deed
According to Section 23 of the Registration Act, 1908 a gift deed should be

presented before the officer within 4 months from the date of its execution. The
final registration process takes at least 1- 3 weeks of time period.
50
Sample Format of a Gift Deed
GIFT DEED
This deed of Gift is executed on ________ day of ______________ month of

_____________ year by Sri./Smt.__________________________, S/o./
W/o.____________________________, occupation____________________,
and aged __________ years, residing
at_______________________________________________________________
__
________________________________________________________________
_. herein after called the DONOR.
In favour of
Sri./Smt.__________________________S/o./W/o._______________________
__, occupation____________________, aged __________ years, residing
at_______________________________________________________________
__
________________________________________________________________
_ Herein referred to as the DONEE.
Whereas, the term Donor and Donee unless repugnant to the context shall mean
and include their representatives heirs, successors, executors, administrators,
trustees, legal representatives and assigns.
Whereas, the Donor herein, is the sole and absolute owner of immovable
property bearing No.___________ known as _____________________
situated at morefully described in the schedule hereunder written and herein
after called the schedule property.
Whereas, the Donor is the absolute owner, having acquired the property, by
____________________ and since then Donor has been in possession and
51
enjoyment of the schedule property and paying taxes and levies thereon, as sole
and absolute owner thereof.
Whereas the Donee is related to the Donor as ____________.*
Whereas the Donor desires to grant the said land and premises morefully
described in the schedule written hereunder and hereinafter referred as
scheduled property to the Donee as gift in consideration of natural love and
affection subject to the condition herein after mentioned. NOW THIS DEED
WITNESSETH that the Donor, without any monitory consideration and in
consideration natural love and affection which the Donor bears to the Donee
hereby grant and transfer by way of gift, the scheduled property situated at
___________________________together with all the things permanently
attached thereto or standing thereon and all the liberties, privileges, easements
and advantages appurtenant thereto and all the estates, rights, title, interest, use,
inheritance, possession, benefits, claims and demand whatsoever of the Donor
TO HAVE AND TO HOLD the same unto the use of the Donee absolutely but
subject to the payment of all taxes, rates, assessments, dues and duties now and
here after chargeable thereon to the Government or local authorities.
Whereas the Donor hereby covenant with the Donee;
(a) That the Donor now has in himself, absolute right, full power, and
absolute authority to grant the said scheduled property hereby
granted as gift in the manner aforesaid.
(b) The Donee may at all times herein after peacefully and quietly
enter upon, take possession of the scheduled property and enjoy
the said scheduled property as he deems fit without any
interruption, claim or demand whatsoever from or by the Donor or
his heirs, executors, administrators and assigns or any person or
52
persons lawfully claiming or to claim by from under or in trust for
the Donor.
(c) AND FURTHER that the Donor and all persons having or lawfully
claiming any estate or interest whatsoever to the said scheduled
property and premises or any part thereof from under or in trust for
the Donor or his heirs, executors, administrators and assigns or any
of them shall and will from time to time and at all times hereafter
at the request and cost of the Donee do and execute or cause to be
done and executed all such further and other acts, deeds, things,
conveyances and assurances in law whatsoever for better and more
perfectly assuring the said scheduled property and every part
thereof unto and to the use of the Donee in the manner aforesaid as
by the Donee his heirs, executors, administrators and assigns or
counsel in law shall be reasonably required
SCHEDULE OF THE PROPERTY
(Gifted under this deed)
All the piece and parcel of immovable property bearing No.____________

Measuring _______________
Bounded by:-
On the East :
On the West :
On the South :
On the North :
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Market value of the property gifted under this deed is Rs._____________
(Rupees____________________________________only). The Stamp duty is
paid on the market value as computed above. IN WITNESS WHEREOF the
Donor as well as the Donee (by way of acceptance of the said gift) have put
their respective hands the day and year first herein above written.
WITNESSES :
1. DONOR
2. DONEE
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TESTAMENTARY SUCCESSION OF REAL ESTATE PROPERTY
Real estate in India is administered and impacted by a combination of central

and state-specific laws. The right of inheritance is passing the titles, rights,
debts, property, and obligations to another person on the death of an individual.
Considering how priceless real estate assets are currently, legal heirs must
safeguard the property/asset after the death of the person in whose name the
property was registered.
Inheritance is the practice of transferring property, titles, debts, rights,

and obligations to the legal heir of a person upon the death of that person
either by way of „Will‟ or through the prevalent laws of succession. The
regulatory laws of inheritance differ among societies as per their religion and
have revolved over time.
Legal formalities to get the property transferred may differ depending upon the
nature of the property, legal heirs‘ rights over the property, the number of legal
heirs and many others etc.
What is a „Will‟?
A testament or more popularly known as will has been defined under the Indian
Succession Act, 1925 as a legal document or a declaration indicating the will of
a person. This legal document contains details like the names of 1 or more
persons who are to acquire, manage and benefit from his estate after his death.
A certified copy of the Will that is certified with the seal of a competent court of
law with a grant of administration of the property to the legatee/ executor of the
testator is called a ‘probate’. A probate, since it is a certified document of the
court acts as an evidence of the executor's authority.
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A court may initiate a legal proceeding also called as probate proceedings after
the death of the person who made the will (executor/ legatee) to determine the
authenticity of the Will that has been created. Ordinarily, during the course of
the court proceedings, the witnesses are asked to appear in the court to testify
upon the authenticity of the Will.
A Will can only be created by a competent person with a sound mind and who
is above 18 years of age i.e. not a minor. Additionally, the probate court does
not deal with the merits of the case but only decides upon the validity of the
Will in question.
Who can be an heir under Indian law?
Under Indian law, an heir is a person determined to succeed to the estate of an

ancestor who died intestate i.e. without creating a will. In India, legal heir is
popularly used to refer to an individual who supersedes to property, either by
law or a will.
Why is it important to identify a legal heir?
It is crucial to identify a legal heir because they are the ultimate successors over
matters relating to insurance claims as well as property inheritance.
Who is a legal heir under Hindu law?
The following can be legal heir under the Hindu Succession (Amendment) Act,
2005:
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Class I:
 Widow,
 Daughter,
 Mother,
 Son,
 Daughter of a son who is deceased
 Daughter of a daughter who is deceased
 Daughter of a pre- deceased son of a pre- deceased son
 Widow of a son who is deceased
 Widow of a pre- deceased son of a pre- deceased son.
 Son of a son who is deceased
 Son of a daughter who is deceased
 Son of a pre- deceased son of a pre- deceased son
Who can be an heir in case no one mentioned above is alive?
In case, there is no heir left from Class I, then the property goes to the heirs of
Class II, who are the relatives defined under the Indian Succession Act. The
defined Class II heirs are:
Class II:
 father
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II
 son‘s daughter‘s daughter,
 son‘s daughter‘s son,
 sister,
 brother
III
 daughter‘s daughter‘s daughter
 daughter‘s daughter‘s son,
 daughter‘s son‘s son,
 daughter‘s son‘s daughter,
IV
 sister‘s son,
 sister‘s daughter
 brother‘s daughter,
 brother‘s son,
 father‘s mother
 father‘s father
 father‘s widow
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 brother‘s widow.
VII
 father‘s sister
 father‘s brother
VIII
 mother‘s mother
 mother‘s father
IX
 mother‘s sister
 mother‘s brother
Who can be a legal heir of a female Hindu?
The property of a female Hindu dying intestate will get transferred to:
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 the sons and daughters (which includes the children of any son or
daughter who are not alive) and the husband,
 the heirs of her husband,
 to her mother and father,
 to the heirs of her father; and
 to the heirs of her mother.
 Under the Act, if any estate succeeded by a female from her father or
mother will get transferred, in the absence of any daughter or son of the
dead (including the children of any pre- deceased daughter or son) to the
heirs of her father.
 Under the Act, if any estate succeeded by a female from her husband or
from her father-in-law will get transferred, in the absence of any daughter
or son of the dead (including the children of any pre- deceased daughter
or son) to the heirs of her husband.
Who is a legal heir under Muslim law?
Under the Muslim Personal Law (Shariat) Application Act, 1937 the following
can be legal heir:
 Husband: The marriage must be legal. Undocumented or secret marriages

are not entitled.
 Wives: Multiple wives are entitled. A divorced wife is also entitled but
only if iddah period is not yet complete.
 Sons: Step sons, adopted sons and illegitimate sons are not entitled.
 Daughters: Step daughters, adopted daughters or illegitimate daughters

are not entitled.
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 Grandsons: Daughter‘s sons are not entitled but son‘s sons are entitled
 Granddaughters: Daughter‘s daughter‘s are not entitled but son‘s

daughters are entitled.
 Father: Step- father or illegitimate father not entitled.
 Mother: Step- mother or illegitimate mother not entitled.
 Grandfather: Mother‘s father is not entitled but father‘s father is entitled.
 Paternal Grandmother: Father‘s mother is entitled.
 Maternal Grandmother: Mother‘s mother is entitled.
 Full Brothers: All those brothers are entitled who share the same father
and mother with the deceased person.
 Full Sisters: All those sisters who share the same father and mother with
the deceased person.
 Paternal Brothers: All those brothers who share the same father, but a
different mother.
 Paternal Sisters: All those sisters who share the same father, but a
different mother.
 Maternal Brothers: All those brothers who share the same mother, but a
different father.
 Maternal Sisters: All those sisters who share the same mother, but a
different father.
 Full Nephews: Brother‘s son is entitled but sister‘s son is not.
 Paternal Nephews: Paternal brother‘s son is entitled but paternal brother‘s

daughter is not.
 Full brother‘s son‘s son
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 Paternal brother‘s son‘s son
 Father‘s full brother
 Father‘s paternal brother.
 Father‘s full brother‘s son
 Father‘s paternal brother‘s son.
 Father‘s full brother‘s son‘s son.
 Father‘s paternal brother‘s son‘s son.
 Father‘s full brother‘s son‘s son‘s son.
 Father‘s paternal brother‘s son‘s son‘s son
Who is a legal heir under Christian law?
Under Section- 32 of the Indian Succession Act, 1925, a Christian legal heir is a
wife, a husband or the kin of the deceased, for instance,
 Widow
 Daughter
 Son
 Mother
 Father
 Sister
 Brother
 Direct blood line, as between a son and his father, grandfather and great-
grandfather, and so on in the direct increasing blood line; or between a
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son and his son, grandson, great- grandson and so on in the decreasing
blood line.
 If a person has died intestate and is only left with a great- grandfather, an
uncle, and a nephew, but no person with direct kinship will take equal
shares as under the 3rd degree of kinship.
Who is a legal heir under Parsi law?
Under Section- 54 of the Indian Succession Act, 1925, a legal heir under the
Parsi personal laws are as follows:
 Both mother and father
 Both sisters and brothers (excluding half sisters and brothers) as well as
lineal descendants of them
 Both paternal as well as maternal grandparents
 Children of both maternal and paternal grandparents and their lineal

descendants
 Maternal and paternal grandparents‘ parents
 Maternal and paternal grandparents‘ parents‘ children and their lineal

descendants
In case, a Parsi Indian dies intestate with no lineal descendants nor a

widow or a widower the following are entitled to the property:
 Both mother and father
 Both sisters and brothers (other than half sisters and brothers) and their
lineal descendants
 Both maternal and paternal grandparents
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 Children of both maternal and paternal grandparents and their lineal
descendants
 Both maternal and paternal grandparents‘ parents
 Both maternal and paternal (grandparents‘ parents‘ children) and their

lineal descendants.
 Half sisters and brothers and their lineal descendants
 Widowers of sisters and/ or half sisters and widows of brothers and/ or

half brothers
 Maternal and paternal grandparents‘ children‘s widows or widowers.
 Widows or widowers of the deceased lineal descendants who did not

remarry
Can a child born in a live- in relationship be a legal heir in India?
In a landmark judgment in 2008, the Supreme Court of India in Vidyadhari v/s

Sukhrana Bai permitted the inheritance right to the children born in a live-in
relationship and thereby acknowledged them with the ―legal heir‖ status.
What is the procedure to get a legal heir certificate?
The first step is to apply for a Legal Heir Certificate under the District
Tehsildar Officer via the District Court having the jurisdiction over the area.
The second step is based on the report of the Village Administrative Officer as
well as the Revenue Inspector of the District and after the mandatory inquiry, a
certificate legal heirship is issued to the concerned person by the District
Authority. The certificate provides the names of all the legal heirs of the
deceased person.
The following documents/ details are required to get a legal heir certificate:
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 Name of the deceased person
 Names and the relationship of family members with the deceased
 Signatures of the Applicant
 Residential Address of the Applicant
What is the right of inheritance?
The right of inheritance is primarily a transfer of the individual‘s property,

debts, titles, rights, and obligations to another individual upon the death of that
person.
An Indian can succeed to or inherit one‟s property and etc. in 2 distinct

ways:
1. Through a will which is the testamentary succession-The individual who

creates the will is called the testator and the individual in whose favour the will
is created is known as the legatee.
2. Through the laws of succession when person dies intestate-In situations

where the person dies intestate i.e. without creating a will then that person‘s
property is transferred among his legal heirs by the applicable laws of intestate
succession.
What are the different laws that govern inheritance in India?

The laws of inheritance in India are applicable based on types of succession and
religion which include:
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 The Hindu Succession Act, 1956/ 2005 - This Succession law applies on
succession without a will i.e. intestate succession among Hindus which is
also applicable to Sikhs, Jains and Buddhists.
 The Indian Succession Act, 1925 - This Succession law is applicable on

transfer of property of Hindus by a ‗Will‘ i.e. a testamentary succession.
This law allows any individual to transfer his own property to any
individual he wants legally by getting a ‗Will‘ drafted.
A ‗Will‖ can be created by a property lawyer against self- acquired

properties in India.
Types of properties that are recognised in India
In India, the following properties are recognised by the Indian property laws:
 Self- acquired property - In case a person obtains a property on his own

and that property is not owned by his father, then that property is
categorised as a self- acquired property.
 Joint Family property - In case a property is inherited by a Hindu

person from his father, father‘s father or father‘s fathers‘ father, then the
property is categorised as a joint family property provided the family has
a common bloodline. The same is not a distinct entity and therefore, has a
never- ending existence.
 Separate property - In case a person obtains a property from any other

relation (different ancestors), which is subjected to not be treated as joint
family property is categorised as a separate property.
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Inheritance rights of children in India
Under Indian succession laws, a son has a right in his father‘s and grandfather‘s
property by birth. The son has equal rights as does his father in his grandfather‘s
ancestral property. Besides this, in a situation where the father has a self-
acquired property or a separate property and he dies intestate, then the son who
is a Class I heir will have succession rights equal to his living mother, sister,
grandmother and brother.
However, an illegitimate son does not have a right in his father‘s property.
Besides this, a child who is still not born but in the mother‘s womb has a right
in his father‘s property even if he has died intestate. But the sole condition to
avail the right to succession is for the father to have be alive when the child was
born.
Inheritance rights of daughters in India
The property rights for a son and a daughter were totally different before 2005,
earlier, only an un-married daughter had a right to share in the ancestral
property. However, after 2005, a daughter was granted similar rights as well as
duties as that of a son. A daughter has equal share of right in the ancestral
property.
Besides this, in a situation where the father has a self- acquired property or a
separate property and he dies intestate, then the daughter who is a Class I heir
will have succession rights equal to her living mother, sister, grandmother and
brother.
Inheritance rights of grandchildren in India
Every grandchild including both grandson and granddaughter have the equal
right to share in the ancestral property of their grandfather with their father.
In a situation where the property of grandfather is either self- acquired or
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separate, then the grandson will have inheritance right only when his father died
before his grandfather.
In heritance rights of a spouse in India
A wife has no right to share in the ancestral property. As a result, a widow has
absolutely no right over her husband‘s ancestral property. However, since a
wife is a Class I heir, the wife will have the right in the self- acquired property
of her husband. Moreover, even a widowed mother also has a right in her son‘s
property.
Inheritance rights of an adopted child in India
In India, the rights of inheritance of an adopted child are quite similar to that of
a natural born child.
However, once adopted, the child relinquishes his/ her property rights in the
biological family however if the child obtains a property before the adoption,
then the property shall continue to be in his/ her name.
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FAMILY SETTLEMENT
Property disputes are a common occurrence in India. Since greed is a

great leveller, wars over wealth take place across the strata, from low-income
households to ultrarich families. Even an iron-clad will may be challenged by
unhappy beneficiaries. The obvious solution for most squabbling relatives is to
take the matter to the courts.
In a nutshell, a family settlement is an agreement where family members

mutually work out how a property should get distributed among themselves. All
the parties should be related to each other and have a clai to a share of the
disputed property. The latter need not be limited to real estate, but can also
cover movable assets like jewllery or money in bank accounts. A family
settlement is usually used to settle common property or joint property that the
family owns as opposed to individual or self-acquired property.
Those who wish to avoid protracted , public messy court battels will find that
family settlements are a quicker more harmonious way to resolve disputes, of
course a family may not be able to reach a consensus, in which case the legal
recourse is the only way out
What is the process?
This is a conciliation process where a third person, usually a lawyer or a senior

family member, helps the family arrive at a mutually acceptable solution to the
property dispute. A family settlement need not strictly be a single document
incorporating the disributing of assets. It may also be a series of documents
spelling out the property righs of each family memebr.
Say a family of two brothers and a sister are squabbling over a flat, an office
and some ancestral jewellery. They could draw up a settlement agreement
starting that the oldest brother gets the flat, the sister bags the jewellery and the
office goes to remaining sibling.
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The most importat thing to remember is that this instrument is neither treated as
a gift nor as transfer as per the income tax laws. So one would have to draw up
separate transfer of property documents in addition to the family settlemtn
agreement – to bring about an actual transfer. This is where instrument like gift
and sales deeds come into play.
Legal requirement
Merely reaching a concesensus is not enough; there are a few legal formalities
that must be completed to ensure that the agreement is valid. Firstly, the
settlement document must be signed by all the family members involved.
The next step is to register the agreement. According to section 17 of the

Registration act, 1908, a family settlement that purpots to assign immovable
property must be mandatorily registered or the deed would be invalid.
As stamp duty is applicable on such deeds and the amount would depend on the
value of the property involved.
Is a family settlement the end of the road?
While a duty executed family settlement cannot be revoked, except with a court
decree, it can be challanged in a court of law. An agreement that is brough
about by fraud or cercion is a case in point.
Any misrepresentation of facts regarding the title of the disputed property too
can lead to a future altercations.
Another common ground on which it is challenged is improper execution.
Paying heed to these common tripwires while drawing out an agreement will
result in a foolproof, amicable and binding family settlement, which benefits
everybody.
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MORTGAGE
A mortgage is a loan that the borrower uses to purchase or maintain a home or

other form of real estate and agrees to pay back over time, typically in a series
of regular payments. The property serves as collateral to secure the loan.
How mortgage work?
Individuals and businesses use mortgages to buy real estate without paying the
entire purchase price upfront. Over a specified number of years, the borrower
repays the loan, plus interest, until they own the property free and clear.
Mortgages are also known as "liens against property" or "claims on property." If
the borrower stops paying the mortgage, the lender can foreclose on the
property.
For example, in a residential mortgage, a homebuyer pledges their house to the

bank or other lender, which then has a claim on the property should the buyer
default on paying the mortgage. In the case of a foreclosure, the lender may
evict the home's residents and sell the property, using the money from the sale
to pay off the mortgage debt.
Mortgage under the Transfer of Property Act, 1882
Sections 58 to 104 of the Transfer of Property Act, 1882 deals with mortgages
and charges.
Few definitions:
 Mortgage
A mortgage is the transfer of an interest in immovable property for the purpose

of securing the payment of money advanced, an existing or future debt or the
performance of an engagement which may give rise to a pecuniary liability.
 Mortgagor and Mortgagee
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The person who transfers the interest in an immovable property is called the
mortgagor.
The person to whom it is transferred is called the mortgagee.
 Mortgage Money
The principal money and interest of which payment is secured for time being is
called mortgage money.
 Mortgage Deed
The instrument by which the transfer is effected is called a mortgage deed.
Essential conditions of a mortgage:
1. There is a transfer of interest to the mortgagee.
2. The interest created in specific immovable property.
3. The mortgage should be supported by consideration.
Kinds of Mortgage
As per Section 58 of Transfer of Property, there are six kinds of mortgages
a. Simple Mortgage
 Simple Mortgage is defined under Section 58(b) of Transfer of Property

Act, 1882.
 In a simple mortgage, the mortgagor does not transfer immovable

property to the mortgagee but agrees to pay the mortgage money.
 The mortgagee agrees on a condition that in the event of not paying the
mortgage money the mortgagee has every right to sell the property and
can use the proceeds of the sale and such a transaction is called a simple
mortgage.
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b. Conditional Mortgage
 Mortgage by conditional sale is defined under Section 58(c) of Transfer

of Property Act, 1882.
 In this mortgagee places three conditions to the mortgagor, and the

mortgagee shall have the right to sell the property if:
1. mortgagor defaults in payment of mortgage money on a certain date.
2. as soon as the payment is made by the mortgagor the sale shall become
void.
3. on the payment of money by the mortgagor, the property is transferred

and such a transaction is called a mortgage by conditional sale.
c. Usufructuary Mortgage
 Usufructuary Mortgage is defined under Section 58(d) of Transfer of

Property Act, 1882.
 In this mortgage, the mortgagor delivers the possession of the property to

the mortgagee and authorises the mortgagee to retain such property until
the payment is made by the mortgagor and further authorise him to
receive the rent or profit arising from such mortgaged property and to
appropriate the same instead of payment of interest. Such a transaction is
called a Usufructuary transaction.
d. English Mortgage
 English Mortgage is defined under Section 58(e) of Transfer of Property

Act, 1882.
 In this mortgage, the mortgagor transfers the property absolutely to the

mortgagee and binds himself that he will repay the mortgage money on
the specified date and lays down a condition that on repayment of money
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mortgagee shall re-transfer the property. Such a transaction is called an
English mortgage transaction.
e. Deposit of title-deeds
 Deposit of title -deeds are defined under Section 58(f) of Transfer of

Property Act, 1882.
 In this mortgage where a person is in Calcutta, Madras, Bombay and in

any other towns as specified by the state government and the mortgagor
delivers to a creditor or his agent the documents of title of immovable
property with an intent to create security and then such a transaction is
called Deposits of title-deeds.
f. Anomalous Mortgage
 An Anomalous Mortgage is defined under Section 58(f) of Transfer of

Property Act, 1882.
 A mortgage which is not any one of the mortgages mentioned above is

called an anomalous mortgage.
Rights of Mortgagor
a. Right of Redemption
As per Section 60 of the Transfer of the Property Act, 1882 one of the important
rights of the mortgagor is the right to redeem the mortgage.
 Once the money has become due on the specified date the mortgagor has
the right to get back the mortgaged property on paying the money to the
mortgagee.
 Right to redemption is a statutory and legal right which cannot be

extinguished on the entering into any agreement.
b. Right to transfer to a third party
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 As per Section 60A of the Transfer of Property Act, 1882 the mortgagor
may direct the mortgagee to assign the mortgage debt and authorise him
to transfer the property to a third party instead of transferring him the
same.
 The object of this section is to enable the mortgagor to pay off the debt of
the mortgagee by taking a loan from another person on the security of the
same property.
c. Right to inspection and production of documents
 As per Section 60B of the Transfer of Property Act, 1882 the mortgagor
may inspect anytime the document of title relating to the mortgaged
property which is in the custody of the mortgagee.
 The costs and expenses incurred while inspecting the documents may be
borne by the mortgagee.
d. Right to accession
 As per Section 63 of the Transfer of Property Act, 1882 during the

subsistence of the mortgage if any accession is made to the mortgaged
property where the property is in possession of the mortgagor itself and
then the mortgagor has a right to take in accession after the redemption of
the mortgage.
 Accession can be of two types:
1. Natural accession.
2. Acquired accession.
e. Right to improvement
 As per Section 63A of the Transfer of Property Act, 1882 during the
subsistence of the mortgage if any improvement is made to the property
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where the property is in possession of the mortgagee and then the
mortgagor has a right to take the improvements made to the property
upon the redemption.
 But where the improvements were at cost of the mortgage by preserving

the property from destruction then the mortgagor is liable to pay the cost
which is incurred by the mortgagee in preserving the property.
f. Right to a renewed lease
 As per Section 64 of the Transfer of Property Act, 1882 where the

property which the mortgagor has given for mortgage is a leasehold
property if the mortgagee renews the leases during the subsistence of
mortgage the mortgagor shall obtain the benefit of the lease upon the
redemption of the mortgage.
g. Right to grant a lease
 As per Section 65A of the Transfer of Property Act, 1882 a mortgagor

shall have the right to grant a lease of which is lawfully in possession
with the mortgagee and such lease shall be binding on the mortgagee
subject to the following conditions:
1. lease shall be according to the local laws, custom or usages.
2. no rent or premium shall be paid in advance.
3. the lease shall not contain a covenant for renewal.
4. the lease shall come into effect within six months from the date on which
it is made.
5. in case lease of buildings, the duration of the lease shall not exceed not
more than three years.
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Liabilities of Mortgagor
Section 65 and 66 of the Transfer of the Property Act, 1882 deals with the
liabilities of the mortgagor.
Section 65 is the implied liabilities which are laid upon the mortgagor. Subject
to the contrary, every mortgagor is deemed to have made the following
covenant.
a. Covenant for title
 As per Section 65(a) of the Transfer of the Property Act, 1882 there is an
implied covenant that the mortgagor transferring the interest in the
property to the mortgagee belongs to the mortgagor only.
 And it is necessary that the mortgagor possess the transferable interest in

the property.
 In case mortgagor makes a breach in the covenant the mortgagor is liable

to compensate.
b. Covenant for the defence of the title
 As per Section 65(b) of the Transfer of the Property Act, 1882 the
mortgagor has a duty impliedly to either defend the title if anyone tries to
take away the title from the mortgagee or help the mortgagee in
defending the title.
 By doing so, the mortgagor bears all the expenses incurred while
defending the title.
c. Covenant for payment of public charge
 As per Section 65(c) of the Transfer of the Property Act, 1882 there is an
implied duty to the mortgagor that upon the execution of the mortgage the
mortgagor shall pay all the necessary changes.
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 If the mortgagor fails to meet the required charges the property would be
sold by the public authorities and realise the charges.
d. Covenant for payment of rent
 As per Section 65(d) of the Transfer of the Property Act, 1882 where the
property mortgaged by the mortgagor is a leasehold property there is an
implied duty of the mortgagor to pay the rent of the mortgaged property.
e. Covenant for the discharge of prior mortgage
 As per Section 65(e) of the Transfer of the Property Act, 1882 there is
implied duty of the mortgagor to discharge the prior mortgage if any.
 There is always a presumption that the mortgagor has a covenant with the
subsequent mortgages to pay off the mortgage on becoming due.
 In such subsequent mortgage if the mortgagor makes a breach the

subsequent mortgagee would have the right to sue for his mortgaged
money.
Mortgagors liability for waste
 Section 66 of the Transfer of the Property Act, 1882 states there is an

implied duty on mortgagor that he shall not do any act which is injurious
or destructive to the mortgaged property.
 Mortgagee should also see that he also does not commit any act which
results in reducing the value of the mortgaged property.
 Following activities are considered as waste by the mortgagor:
1. Removing valuable fixtures from the mortgaged property.
2. Pulling down the mortgaged house and taking the price of the materials.
3. Cutting down the timber from the mortgaged property.
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4. Mining under the mortgaged building which as a result may lead to
placing the building in the danger.
5. Working new mines on the mortgaged property.
 Whether any particular activity is considered as waste or not depends on

the degree of the loss of the mortgaged property.
 The mortgagor is liable only for the active waste and not the permissible
waste.
Rights of Mortgagee in Possession
a. Right to foreclosure or sale
 As per Section 67 of the Transfer of Property Act, 1882 the mortgagee

has a right to foreclosure or sale.
 When the mortgagor does not pay the mortgage money after the specified
date is over and the mortgagor‘s right to redeem the mortgaged money
has become complete but he has failed to avail that right then mortgagee
gets a right to institute suit for a decree that the mortgagor is absolutely
debarred of his right to redeem the property.
 The difference between the right to redemption and right to foreclosure is

that the former is an absolute right whereas the right to foreclose is not.
 The mortgagor cannot limit the right of redemption but the right to
foreclose can be made subject to a contract between the parties.
b. Right to sue

has every right to sue for the mortgaged money.
 The mortgagee can sue for mortgaged money in the following

circumstances:
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1. where mortgagor binds himself to repay the money to the mortgagee.
2. where the property mortgaged by the mortgagee has been destroyed either
wholly or partially without the fault of the mortgagee.
3. where the property mortgaged, the mortgagee is deprived of the security

due to some wrongful act done by the mortgagor.
4. where the mortgagors fail to deliver the possession to the mortgagee.
c. Right to sell

has every right to sell the mortgaged property if the mortgaged money has
not been received
 This right can be exercised by the mortgagee when the mortgagor makes
a default in payment of the mortgaged money after the specified date is
over.
 This right can be exercised without the intervention of the court but only
in the following cases:
1. if the mortgage is an English mortgage both the mortgagor and mortgage

should not be Hindu, Muslim, Buddhist, or a member of any other race as
specified by the state government;
2. when there is a contract between the mortgagor and mortgagee the sale
would take place without the intervention of the court in case of default in
payment of mortgaged money;
3. to exercise the above right the mortgaged property should be situated

either in Calcutta, Madras, Bombay, Ahmedabad, Kanpur, Allahabad,
Lucknow, Coimbatore, Cochin and Delhi.
d. Conditions to exercise of Power
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Before the sale proceeding can take place the mortgagee has to fulfil the
following conditions:
 The notice has to be served on the mortgagor in writing and three months
have to be elapsed from sending the notice.
 When the money is unpaid for three money and mortgaged money is at
least INR 500 in arrear.
e. Right to appoint a receiver
 A receiver is appointed only if there happens to be a sale under Section

69 of the Transfer of Property Act, 1882.
 The appointment of the receiver is made according to the mortgaged

deed.
 The person appointing as a receiver should be willing to act as a receiver

if he is unable to act as a receiver then the mortgagee can appoint the
receiver if the mortgagor agrees. In case the mortgagor does not agree to
the appointment made by the mortgagee then the mortgagee can apply to
the court for the appointment.
 The money received by the receiver shall distribute for the following to
below case
1. he may discharge all the rents, taxes, land revenues, and any other charge
which is affecting the property.
2. he can claim back the payment along with the interest.
3. he can keep a sum of money as commission and he may pay premiums on

the various insurances insured.
f. Right to accession to mortgaged property
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 As per Section 70 of the Transfer of Property Act, 1882 if there is a
contract between the mortgagor and mortgagee that after the date of
mortgage that the mortgagee shall have the right to the accession made to
the mortgaged property then the mortgagee shall have right to all the
accessions made.
g. Right of Mortgage to spend the money

has a right to spend the money when it is necessary.
There are few circumstances in which the mortgagee has a right to spend the
money:
1. the mortgagee can spend the money on preserving the mortgaged

property from destruction, forfeiture and sale.
2. the mortgagee can spend the money if circumstances arise to protect the
mortgagor‘s title to the property.
3. when the mortgaged property happens to be a renewable leasehold

property.
4. the mortgagee can spend the money on insuring the mortgagor‘s property.
h. Right to proceed of revenue sale or compensation on acquisition
 As per Section 73(1) of the Transfer of Property Act, 1882 if the

mortgaged property is sold due to the non-payment of government dues
then the mortgagee shall have every right to claim back his mortgaged
money from such sale.
 As per Section 73(2) of the Transfer of Property Act, 1882 if the

mortgaged property is acquired under the land acquisition act or any other
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act and the compensation is paid the mortgagee can claim his debt from
such compensation.
Liabilities of Mortgagee in Possession
As per Section 76 of the Transfer of Property Act, 1882 list down the duties of
the mortgagee who is in possession of the property which belongs to the
mortgagor.
The duties mentioned under are the statutory duties except for the duties which
are mentioned under clauses (c) and (d) the duties under these clauses are
mentioned in the contract by the parties.
a. Duty to manage the property
 The mortgagee has a duty to take reasonable care in the property of the
mortgagor.
 Though he has a liability to take reasonable care in the property the

mortgagee is not bound by the directions given by the mortgagor and the
mortgagee has acquired absolute rights in managing the property.
 The only condition which is put forward by the mortgagor is that he

cannot lease the property beyond the termination of his interest in the
mortgaged property.
b. Duty to collect rents and profits
 The mortgagee who is in possession of the mortgagor‘s property can

collect the rent and profits arising from the property.
 One outstanding feature of usufructuary mortgagee is the rent and profits

collected from the property are appropriated by the mortgagee instead of
payment of interest.
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 Mortgagee becomes liable for the collection of rent and profit only to the
property which he is liable to acquire the rent and profits and not liable
for the whole rental property.
c. Duty to pay rent, revenue and public charges
 If there is an agreement between the mortgagor and mortgagee that the

mortgagee has to pay the rents, revenue, taxes and outgoings then the
mortgagee is liable to pay all of them which have been agreed by him.
 The mortgagee is not allowed to take the benefits without paying the
taxes etc.
 In case the money which has been obtained from the property is
insufficient for paying the charges, he may pay out of his own pocket and
later add the amount which has been paid by him to the debit account.
d. Duty to make necessary repairs
 If there is an agreement between the mortgagor and mortgagee that the

mortgagee is bound to carry out all the necessary repairs in the property
then the mortgagee is liable to take care of the necessary repairs.
 The necessary repairs in the property are to be made only when there is a
surplus amount from the rents and profits.
e. Duty not to commit any destructive act
 While the property is in the mortgagee‘s possession he is prevented from

committing any act which is either in destructive nature or is injurious to
the mortgaged property.
 He is prohibited from carrying out any acts which may result in reducing
the value of the property.
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 If the property is destroyed because of acts of god then the mortgagee is
not liable for the property.
f. Duty towards the proper use of insurance money
 Where the mortgaged property has been insured against loss by fire it is
the duty of the mortgagee to apply for the insurance money in restoring
the property.
 The mortgagee is also bound to apply the money received under the
insurance policy in reinstating the property.
 The property which is to be insured only for the two-third of its value.
g. Duty to keep the accounts
 The mortgagee has a statutory duty under this provision in keeping the
correct accounts of all incomes arose and expenses incurred by the
mortgagee.
 The only exception is when the mortgagee is entitled to adjust the income
against the interest he is not allowed to give full accounts because
something there may be no money left to use for other expenses.
h. Duty to apply rents and profit
 This clause provides the manner in which the mortgagee who is in

possession of the property has to apply for rents and profits during the
mortgage.
Inherent Risk in the Mortgage
 Non-availability of chain documents in original.

 Impossible to detect legal disputes which are pending the Court with
respect to the property which disclosure is concealed by the borrower.
 Non-disclosure of outstanding under the Income-Tax Act or House-Tax
Act.
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 Mortgage in favour of more than one bank by forging various copies of
title documents.
 Title arising out of
 transaction within a family.
 Share of a minor in the property
 Mortgage of HUF property for purpose other than the permitted one.
 Construction of property without sanctioned building plan or in violation
thereof.
Care to be taken to ensure that builder has not already mortgaged the
property
As a homebuyer, you must know that the builder cannot mortgage the units
already sold to the buyers. He only has rights on the unsold units within the
project. Further, thorough due diligence is required prior to purchasing a
property in order to be sure that the builder has not already mortgaged the
property to the bank.
The homebuyers can verify the records at the registrar office to check if the
builder has already mortgaged the property or not.
Central Registry of Securitisation Asset Reconstruction and Security

Interest of India (CERSAI) https://www.cersai.org.in/CERSAI/home.prg
It is now mandatory to share mortgage details with the Central Registry of

Securitisation Asset Reconstruction and Security Interest of India (CERSAI).
A buyer can now access this database and check if their property details show
up against any loans issued. A homebuyer can also demand a No Objection
Certificate (NOC) from the builder for the property. The NOC should be made
on a 10 Rupee stamp paper and should be duly notarised. Lastly, the buyer can
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also issue a public notice stating that anyone can raise an objection on the
property that they intend to buy.
Further, as per the regulations of the Real Estate (Regulation and Development)
Act, 2016 (RERA), the builders are required to disclose the details pertinent to
the mortgage of property. These details will be part of the RERA certificate for
the benefit of the buyer. If a property is mortgaged after the receipt of the
documents, the builder will have to update these details in the quarterly or
annual report which is submitted under RERA.
Different types of mortgage loans in India
Below are the different types of Mortgage Loans in India:
1. Loan against Property (LAP)
The Loan against Property is commonly known as LAP. LAP is offered for
commercial and residential properties. The borrowers have to mortgage their
property in order to get funds from lending institutions. The original documents
of the property have to be deposited with the lender till the time the loan is
repaid in full. The repayment of such loans is done on EMI basis. Borrowers
can use the loan amount for any personal or professional needs. Many banks
and NBFCs provide an option to calculate loan against property EMI on their
website. This is for the convenience of the borrowers. These loans usually have
a tenure of up to 15 years.
2. Commercial Purchase
Commercial purchase loans are popularly taken by businessmen and

entrepreneurs. They take such loans to buy commercial properties like a shop,
office space, and commercial complex. This loan is apt for such purchases. The
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interest rates offered by banks and NBFCs are competitive. Funds from this
loan have to be used to buy the property only.
3. Lease Rental Discounting
Leasing our own residential or commercial property is a very common practice.

Mortgage loans can be taken against the leased properties too. This is known as
‗lease rental discounting‘. The monthly rent amount itself is converted into EMI
and the loan amount is given on that basis. The loan tenure and the loan amount,
both depend on the tenure as to till when the property will be kept leased. The
lease agreement is referred to by banks and NBFCs who are offering the loan.
4. Second Mortgage Loan
Banks and NBFCs offer Second Mortgage Loan for properties which are
already under a loan. If a borrower purchases his property by taking a loan
today, he can take an additional loan on the same property for personal needs.
When a borrower applies for a Second Mortgage Loan, it is commonly called a
top-up loan on a home loan. Based on the borrower‘s credit score as well as
loan repayment history, the lender will give additional required loan. The
borrower has to start paying the EMI of the second mortgage loan along with
the first mortgage home loan.
5. Reverse Mortgage
A reverse mortgage has been recently introduced in India. It is a special loan,

which is introduced for senior citizens. There are many senior citizens who do
not have a steady or an adequate monthly flow of income. However, many of
them own real estate in some form or the other. So they can opt for this. A
reverse mortgage works exactly the opposite of mortgage loans. The way it
works is that they have to keep their property as a mortgage with the bank or
with the NBFC. The lender then pays them a steady amount of income every
month like EMIs. On the death of the senior citizen, the bank or the NBFC has
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the right to sell the property. The loan amount that is paid to the senior citizens
is directly deducted from the amount in which the real estate is sold. The
residual amount is given back to the legal heirs of the deceased senior citizens.
6. Home Loan
The most commonly sought after home loan in India is a home loan. Consumers
apply for small, medium, and real big-sized home loans. This is because the
interest rates are competitive, durations are comfortable, and one gets a tax
benefit. One gets the opportunity to refurbish, renovate, and re-build their
house. One can take a home loan for purchasing land to build a house or to
construct a house on land that is purchased or to even buy an under-construction
property. This can be done for new or resale properties. However, the funds that
are taken as a loan by the borrower have to necessarily be used for the house
only. Such funds cannot be used for any other personal or business needs.
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TRANSACTING WITH FOREIGNERS IN REAL ESTATE
A foreign national of non-Indian origin resident outside India cannot buy any
immovable property in India. It is illegal for foreign nationals to own property
in India unless they satisfy the residency requirement of 183 days in a financial
year (a tourist visa lasts for 180 days). It is also illegal to buy property on a
tourist visa. Moreover property cannot be purchased jointly in the name of one
eligible person with one non-eligible person. That means a non-resident Indian
(NRI) or foreign national of Indian origin (PIO) cannot buy a property jointly
with a foreigner
However, a foreign national resident in India does not require approval of RBI
to purchase any immovable property in India. This is because once he is a
resident in India, he gets the rights like any other resident. This freedom is
however not available to citizens of Pakistan, Bangladesh, Sri Lanka,
Afghanistan, China, Iran, Nepal and Bhutan.
Leases are different, too. "Ineligible persons" (e.g. foreign nationals of non-
Indian origin and also citizens of certain countries specified above) can acquire
residential (not commercial) accommodation on lease not exceeding five years
without any RBI permission. However, much property has been ´sold´ to
foreigners, particularly in Goa, where prices are cheap and developers are
plentiful, on 5 year leases. The buyers won´t get title to the property until they
can obtain residency, which is what most of them intend to do eventually. But
they may be disappointed - increasingly new visas explicitly forbid foreigners
from staying in India more than 180 days consecutively.
A foreign company which has established a Branch Office or other place of

business in India, in accordance with FERA / FEMA regulations, can also
acquire immovable property in India.
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However it must be ´is necessary for or incidental to carrying on his business´
and it seems increasingly that the whip is being cracked on those using this as a
loophole to acquired residential property to live in or rent.
Non-Resident Indians (NRI), whether Indian citizens or foreign citizens of

Indian origin, do not need permission from the Reserve Bank of India to acquire
property if the seller is an Indian citizen.
A foreign national of Indian origin is "any person who or either of whose

parents or any of whose grand-parents was born in India as defined in the
Government of India Act, 1935" or any person who held an Indian passport at
any given time.
There is no limit in the amount and/or number of properties that can be bought.
To purchase property, it is important for the buyer to hire a real estate attorney
to protect his/her interests during the transaction. Once the property has been
chosen, and a price has been negotiated with the seller, the attorney draws up an
Agreement of Sale. Upon signing, the buyer normally pays a deposit of 10% to
20% of the purchase price. The lawyer then conducts due diligence and the
buyer obtains the title documents from the seller. The title should be checked to
have encumbrances.
The conveyance documents must be stamped at the Stamp Duty Office before
signing. After this, the remaining balance is settled, and the deed is registered at
the Sub-Registrar of Assurance Government duties are paid.
The whole process of registering property requires five procedures, which can
be completed in around 44 days.
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TRANSACTING WITH NON RESIDENTS OF INDIA (NRI)
If buying a property is difficult owing to the legal and financial aspects of the
transaction, buying a property from a non-resident Indian (NRI) is even more
complex. Since rules in such cases are different, buyers must be really careful
while carrying out such deals.
While residents of most countries can sell property to Indians without having to
knock at the doors of the Reserve Bank of India, NRI sellers from Afghanistan,
Bhutan, China, Pakistan, Nepal and Sri Lanka must have an approval from the
central bank to sell their property. Also note here that an approval from the RBI
is must irrespective of the country where the NRI lives in case you are buying
agricultural land. Make sure all the approvals are in place.
While having a Permanent Account Number (PAN) is a must for the seller to
carry out the transaction, the buyer needs to have a Tax Deduction and
Collection Account Number (TAN). Without a TAN, you will not be able to
deduct the tax – tax deducted at source or TDS – you as a buyer are liable to
pay. Both the parties could apply for the same if they do not have the above-
mentioned numbers already. Also note here that if you are buying this property
along with your wife, both the buyers must have TANs. If the seller is more
than one person, all of them, too, need to pave PANs.
In case the seller shows his inability to be present in India to complete the
process and proposes to grant a power of attorney to his representative in the
country, ask him to prove this representative with a special power of attorney. A
general power of attorney is given to someone to carry out any sort of financial
transaction on an NRI‘s behalf. A special power of attorney would in a way
restrict this representative‘s powers, something that favours a buyer.
Depending on the deal value, you will have to deduct over 20 per cent of the
transaction value of the deal as TDS.
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*Deduct TDS of 20.80 per cent if the deal value is less than Rs 50 lakh.
*Deduct TDS of 22.88 per cent of the deal value if the property is worth
anywhere between Rs 50 lakh and Rs 1 crore.
*Deduct 23.92 per cent of the deal value as TDS if the property is worth over
Rs 1 crore.
Do note here that you are basically deducting tax on the capital gains made by
the seller. However, it is the total deal value based on which you should deduct
the money. Unless the seller presents a certificate issued by an income tax
officer establishing lower tax liability, go ahead with the standard practice.
The TDS money has to be deposited with the income tax department within
seven days after the month in which the transaction takes place. You are also
responsible for filing TDS return and issue Form 16A to the seller after
depositing the amount with the authorities.
It is of utmost importance to note here that any lapses in the transaction would
mean authorities running after you since tracking the seller might not be
convenient. Taxation laws are complex and you may not be able to understand
the overlapping aspects of transaction. It is in your best interest to use the
services of a lawyer/chartered accountant who specialises in such transactions.
Make sure you deposit the sale proceeds only in the seller‘sNon-Resident
External (NRE) or a Non-Resident Ordinary (NRO) or Foreign Currency Non-
Repatriable (FCNR) account. Never commit to depositing the money in the
seller‘s savings account in India. This is important to avoid future hassles.
In case the property you are buying has multiple owners, make sure all parties
are on board and are willing to sell it. To avoid any litigation in future, also pay
each party in proportion to their share in the property.
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The sale agreement must be written elaborating on all points, including TDS
details and seller account number. This would ensure no misinforming is done
on part of the NRI.
Check This List Of Documents That An NRI Requires To Sell A Property.
Passport
An NRI, who want to sell a property in India, should hold a passport; not
necessarily an Indian passport. This will serve as the identity proof of the
person, involved in the transaction.
For an Overseas Citizen of India (OCI) and a Person of Indian Origin (PIO), a
passport serves the same purpose.
PAN Card
A number of NRIs do not pay taxes in India, as their income is taxable in the
countries they stay. However, experts believe NRIs should apply for a PAN
(Permanent Account Number) card here when they intend to buy a property in
India, as it will be required to apply for a tax exemption certificate as after the
sale of the property. PAN numbers are given out to NRIs with a foreign
communication address to select countries.
Also Read: An NRI Without A PAN? You Won't Have To Pay Higher Taxes
Now
Tax Returns
If an NRI has been holding a property for a certain period and earning money
from it (by renting it out, etc), the transaction becomes taxable. In that case, tax
returns for the whole property-ownership period should also be kept ready.
Address Proof
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An NRI has to give documents in support of his address in India as well as
abroad. This may include a ration card, telephone or electricity bills, life
insurance policy statements, etc. Same set of papers are also required as the
proof of residence abroad.
Sale Deed
A key document needed in the process is the sale deed, also a primary proof of
ownership. A legal document, sale deed is an agreement executed by an NRI
while purchasing an under-construction property in India.
Allotment Letter
A letter of allotment (from a society, a builder or any relevant authority)

bestows the property to the said person who holds it.
Documents From The Society
For an apartment in a particular society, a letter from the apartment/society is

needed for a go-ahead to the sales process. This document states the seller has
no outstanding payments to the society. A copy of membership of the society is
also important to establish ownership of the property.
Approved Building Plan & Occupation Certificate
While a copy of an approved building plan is necessary for selling a property,

an occupation certificate is a proof that the apartment has been occupied and is
also given out by the builder or the building society.
Encumbrance Certificate
An encumbrance certificate is necessary to assure the buyer that the land or the
property has no dues to any legal authority. This is important in the case of a
house, an apartment or even land.
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Apart from these documents, it would also help if an NRI can provide
documents of property tax receipts over the years. A guarded buyer may ask for
it.
SELLING A PROPERTY WITH MULTIPLE OWNERS
The transaction of selling a property with multiple owners can be the ultimate
―too many cooks in the kitchen‖ scenario. Rarely will everyone agree on
important decisions like when to sell, who to hire for this or that, or how much
the property is worth — often to the detriment of the sale and the owners‘
valuable time.
―Multiple-owner property sales are fraught with problems because you can‘t
necessarily always keep all individuals on the same page,‖
―Some owners may be doing better economically than others on the title, so
they may not have the same urgency to liquidate and get money out of the home
sale.‖
To minimize the stress of a multiple-owner sale and the risk for disputes along
the way, follow these tips on how to:
 Set up your ownership agreement for a successful sale down the line
(super important!)
 Share costs until the house sells
 Find neutral representation so no one feels slighted or that others will be

favored
 Navigate your options for breaking a stalemate
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INDIANS BUYING PROPERTY ABROAD
The Foreign Exchange Management Act (FEMA), 1999 specifies that a person
resident in India may hold, own, transfer or invest in foreign currency, foreign
security or any immovable property situated outside India if such currency,
security or property was acquired, held or owned by such person when he was
resident outside India or inherited from a person who was resident outside India.
Further, in order to liberalize the foreign exchange facilities available to resident

individuals, RBI has started a Liberalized Remittance Scheme that allows a
resident Indian to remit up to US$ 2,50,000 in one financial year for any
permitted capital and current account transactions, including acquisition of
immovable property, shares, debt instruments or any other assets outside India
as permitted under the scheme.
Liberalized Remittance Scheme (LRE)
Liberalised Remittance Scheme is a scheme introduced by RBI as liberalisation

measure to facilitate Resident Individuals (RI) to freely remit funds upto USD
2,50,000/- outside India in a financial year (April to March) for any permissible
current or capital account transaction or a combination of both.
RIs are eligible to avail benefit of LRS. The person must be a person resident in
India as per FEMA. Once an individual is a resident under FEMA, he is eligible
to avail benefits of LRS, whether or not he is an Indian citizen.
However, LRS is not available to corporates, partnership firms, HUF, Trusts,
etc.
Under the Scheme, resident individuals can acquire and hold immovable
property or shares or debt instruments or any other assets outside India, without
prior approval of the Reserve Bank of India. Individuals can also open, maintain
and hold foreign currency accounts with Banks outside India.
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The investor can retain and reinvest the income earned on investments made
under the Scheme. Currently, the residents are not required to repatriate the
funds or income generated out of investments made under the Scheme.
Remittances under the facility can be consolidated in respect of family members

subject to the individual family members complying with the terms and
conditions of the Scheme.
The facility under the Scheme is in addition to those already available for
private travel, business travel, studies, medical treatment, etc as described in
Schedule III of Foreign Exchange Management (Current Account Transactions)
Rules, 2000. The Scheme can be also be used for these purposes.
Gift and donation remittances cannot be made separately and have to be made
under the Scheme only.
A resident individual can invest in units of Mutual Funds, Venture Funds,

unrated debt securities, promissory notes, etc under this Scheme. Further, the
resident can invest in such securities out of the Bank account opened abroad
under the Scheme.
An individual, who has availed of a loan abroad while a non-resident can repay
the same on return to India, under this Scheme as a resident
It is mandatory for resident individuals to have PAN number for sending

outward remittances under the Scheme.
In case a resident individual requests for an outward remittance by way of

issuance of a demand draft (either in his own name or in the name of the
beneficiary with whom he intends putting through the permissible transactions)
at the time of his private visit abroad, such an outward remittance can be
effected against self declaration of the remitter in the format prescribed under
the Scheme.
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List of transactions NOT permitted under the scheme
Remittance from India for margins or margin calls to overseas exchanges/

overseas counterparty.
Remittance for any purpose specifically prohibited under Schedule-I (like

purchase of lottery/sweep stakes, tickets proscribed magazines etc) or any item
restricted under Schedule II of Foreign Exchange Management (Current
Account Transactions) Rules, 2000.
Remittances made directly or indirectly to Bhutan, Nepal, Mauritius or

Pakistan.
Remittances made directly or indirectly to countries identified by the Financial

Action Task Force (FATF) as "non co-operative countries and territories" from
time to time.
Remittances directly or indirectly to those individuals and entities identified as

posing significant risk of committing acts of terrorism as advised separately by
the Reserve Bank of India to the Banks.
Tips for Buying Property Abroad
a. Know the purpose of buying: It is important to realize the

purpose of buying a property abroad. If you are buying a property
for gaining visa or citizenship, then you need to think twice
because every country follows different regulations regarding
property ownership. For example, in Hong Kong, owning a
property by a foreigner helps in securing visa, but in New Zealand,
the UK, and Australia, possessing an immovable property confers
no advantage towards a residency permit. However, if you work
abroad or have children studying abroad or are a frequent visitor to
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a destination abroad, then buying property abroad is surely a viable
option.
b. Do you homework: Before you initiate the buying process, ensure
that you find out all about the country you are considering for
property purchase, including climate, cost, connectivity, economy,
etc. Also, make a visit to the country and get in touch with a local
estate agent to understand the dynamics of the property market in
the area and to educate oneself on available properties and
locations.
c. Know the tax liability: Another aspect that one needs to consider
is the tax liability associated with owning a real estate, including
taxes payable while purchasing, holding, renting, and selling
property – both in the country where you are investing and also in
India. Check the inheritance and capital gains tax laws of the
country where you are buying immovable property. Tax
implications vary across countries and according to the type of
property bought; so ensure you are aware of these to avoid any
surprises later. Identifying the need to avoid double taxation, that
is, paying taxes in India as well as in their country of residence, the
Government of India has entered into Double Taxation Avoidance
Agreement (DTAA) with 65 countries including the U.S.A., the
U.K., Japan, France and Germany. In case of countries with which
India has Double Taxation Avoidance Agreements, the tax rates,
are determined by such agreements.
d. Verify the credentials of your real estate agent: Ensure that the
real estate from whom you are buying property is well reputed and
registered under the respective laws of the concerned state. The
agent should be proficient in your chosen country's laws and
processes and know the specifics involved in buying a property
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there. Ask your property agent for all the necessary documents
including building regulations and planning permissions.
e. Verify the title to the property: Engage a qualified lawyer to
inspect and confirm the validity of the title deed and related
documents, and ensure there are no encumbrances on the property.
f. Contract: Never sign a contract that you do not understand,
especially if it is in a foreign language. Get the contract translated
into native language and understand the nuances with the help of a
qualified lawyer. The legal expert can also guide you about the
property laws prevalent in the country. If two versions of a contract
are provided, i.e., English and local language, ask your solicitor to
confirm that the English version is a true translation. The contract
involved in buying a property should be tripartite agreement
including Indian buyer, foreign seller/real Estate Company, and
Indian representative, which should be a registered company under
Indian laws (and not an individual). Many foreign real estate
companies have opened up franchises in India that act as Indian
representative in a property deal abroad. As these representatives
are more aware of the property market in their respective countries,
they can guide the Indian buyers accordingly, and in case of legal
disputes, they can be held accountable.
g. Get the money matters right: Arrange for sufficient funds to
include property value as well as maintenance costs including
travel, repair, and renovation costs. If you are arranging finance on
the property, ensure that this is stated in any contract and, where
possible, seek an 'opt-out' clause if the loan is not disbursed (which
will ensure any deposit paid is refunded). When claiming
mortgage, cover all hidden costs, as it would be difficult to claim
more when initial paperwork has been completed by the Bank.
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Also, remember that your mortgage will probably be in local
currency, and you must consider the impact of fluctuations in
exchange rates.
h. Open a local account: Open a Bank account in your chosen
country and, where relevant, ensure you obtain a Certificate of
Importation for the money you bring in from your home country.
Set up standing orders in your local Bank account to meet local
bills and taxes.
i. Study Property Price Indices: A careful study of property price
indices of a country or area where you wish to acquire property is
also recommended. This will ensure your awareness and
clarification of trends for commercial as well as residential
property.
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TRANSACTION VIA POWER OF ATTORNEY
There may be many circumstances in a person‘s life who owns assets,

properties, bank accounts, etc. but who at that moment may not be in the right
condition to appropriately execute his/ her duties due to unforeseen
circumstances like being ill, being abroad (in case of an NRI) or even when the
person is too old to perform his/ her duties etc.
As a result, during circumstances where a financial transaction has to be carried

out mandates the attendance of the person who is unable to appear personally,
then the only solution towards this is to delegate his own powers i.e. to act on
behalf of the person to another individual.
This procedure of delegation of power is called Power of Attorney (PoA) and

during such an unforeseen situation where the rightful owner cannot utilize his
power is when a Power of Attorney deed is executed. This practice is highly
popular to give one‘s powers to a dependable and honourable person to conduct
operations like sale, renting out, registrations, etc. provided that person is busy
or unable to do those things personally.
However, in 2011, the Supreme Court of India in a landmark judgment

observed that transferring property title through a General Power of Attorney
(GPA) is illegal. But before learning the legality of the Supreme Court order let
us understand the concept of Power of Attorney.
Power of Attorney (PoA)
A Power of Attorney is a legal document where 1 person grants the right to

execute i.e. power to transact in matters regarding property, legal and judicial
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proceedings, banking, payment of tax, etc, to another person due to any of the
reasons explained above earlier.
A Power of Attorney is an authorisation granted by a written formal instrument

whereby an individual termed as the principal/ donor authorises another
individual termed as the attorney/ agent/ donee to act on his/ her behalf.
Principal/ Grantor/ Donor is the person who gives his power/ responsibility/
authority to another person to act on his behalf
Attorney/ Agent/ Donee is the person to whom the power/ responsibility/

authority is given.
Who should utilize the option of a Power of Attorney?
Ordinarily a Power of Attorney is executed by someone who cannot perform his

transactions himself or herself (in person) due to numerous reasons. The
following are the numerous reasons that make an individual delegate his powers
to perform a duty to some other individual:
 If the Principal resides in a foreign country and due to that he is unable to

be present for the responsibility
 If the Principal is ill and is bedridden because of that
 If the Principal is a senior citizen who is suffering with health problems
 or any other valid reason on the part of the Principal for being unable to
perform his duties on his own
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What are the different types of Power of Attorney in India?
A Power of Attorney (PoA) can be of 2 types:
1. General Power of Attorney (GPA)
When a person is authorised with absolute general right or power to act legally
with respect to the property or bank accounts or tax payments, or registration
work or to file a case against 3rd party etc by another person is termed as a GPA.
An individual can either give a GPA for all his properties, banking transactions,
tax affairs, registration, legal disputes as well as court matters etc. or can simply
grant a general power pertaining to just one category from above. For instance,
power relating to property matters only. This transfer of general power is
extremely broad and therefore, has lot of risk involved in case the Agent/
Attorney is not a dependable individual.
2. Special Power of Attorney (SPA)
An SPA is transfer of special power which is only granted for a specific

assignment and once the specific assignment is completed the SPA
automatically comes to an end.
A typical example of an SPA is when people rent out their property or when the
agent appears for the registration of the principal‘s property or when the agent
appears in a court or before the Tax authorities on behalf of the Principal etc.
What is the difference between a GPA and an SPA?
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A GPA is a lot different from an SPA since a GPA always grants a general
power to perform while the special power grants only a specific power to
perform a particular duty or assignment.
A GPA encloses a broad range of powers and is not restricted to any particular/
specific responsibility. Therefore, it requires to be given only to a very
dependable person. An SPA on the contrary expires as soon as the specific
responsibility/ assignment is over
An SPA is always specific in nature, however, under a GPA there is

unrestrictive authority to buy, sell, rent out, recovering debts, opening of bank
accounts, close of bank accounts, attending/ appearing the courts, appearing on
the direction of the principal in legal disputes or filing tax returns etc. In an
SPA, only 1 of the above mentioned duties is to be performed by the agent. An
SPA cannot be created for every assignment and therefore, the provision for
GPA is allowed.
What are the essential clauses in a Power of Attorney?
While instituting a Power of Attorney, it is essential to cover specific

compulsory clauses depending upon the kind of power of attorney that is being
created. The following are the essential clauses that must be included in a Power
of Attorney deed:
1. Entire details of the Principal/ donor creating the Power of Attorney like
his name, age, address as well as his current occupation.
2. Relevant information of the agent/ attorney/ donee i.e. the person who is
getting the authority.
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3. The reason to grant the power to another person must be explained and be
valid.
4. The time, date as well as the place of creating the Power of Attorney deed
and its execution date as well (date from which the Power of Attorney
comes into force).
5. In case the Power of Attorney is time bound, then, the prospective date of
termination of the Power of Attorney and in case there is no mention of
the time limit of the same then it is to be mentioned whether the Power of
Attorney durable or non- durable.
6. In case of a general power that is being granted then the deed must clearly
mention the entire details of all the acts as well as the areas of granting
the said power. For instance, if a general power pertaining to property is
granted, then the Principal can grant the power to rent or buy any
property while not being authorised to sell any of the properties.
7. In case of a special power the grant of the specific responsibility/

assignment that needs to be performed by the agent/ attorney must be
clearly stipulated in the deed.
8. The deed must also specify the time limit of the special power within
which the responsibility has to be completed.
Power of Attorney by Non- Resident Indians (NRI)
A Non- Resident Indian can create a Power of Attorney deed while residing
outside India without having to visit India solely for that purpose. Majority of
NRIs own properties as well as banking transactions in India that could require
their appearance while undergoing transactions. However, the same cannot be
possible for every such transaction. Therefore, NRIs can always give authority
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for such transactions to his/ her agent/ attorney who can be a friend or even a
family member.
An NRI must follow the following procedure to execute the same:
1. The first step for an NRI is to draft the Power of Attorney on a plain
paper with his/ her own signatures.
2. The following step is to visit the Indian Embassy or Consulate in that

country and get it stamped and sealed from the Indian Embassy.
3. As an alternative, the Principal can get the deed notarized by a Public

Notary in that country which must mention the registration number of the
notary with the seal on each page of the deed.
4. The next step is to send the said attested deed by registered post to the
Indian address in the name of any friend or a family member.
5. The final step is to be executed by the friend/ family member in India to

get the said deed registered in India at a Sub- Registrar Office or Sub-
Divisional Magistrate Office by paying the standard registration charges
as applicable in that state of India.
Understanding the relation between Power of Attorney (PoA) and real

estate in India
From the above the legality of a Power of Attorney has been understood and
established, and is now clear that a PoA is not a authentic instrument to execute
transfer of property titles. Although, the practice of selling and buying property
through GPA and SPA had been really common all across Indian cities. The
same was because of the monetary benefits such selling and buying offered to
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both the buyer as well as the seller.
Ordinarily, a sale deed has to be executed for transferring property titles in

India, following which the property buyer has to pay the standard stamp duty as
well as the registration charges for the property. Besides this, the property seller
also has to carry on the weight of capital gains tax on the said transaction. And
by transferring property title through a GPA, registration and tax charges are
prevented.
Now from the perspective of a seller, a GPA makes it plausible to take the
transaction forward even if the seller does not possess clear titles to the
property. As a result, a GPA is the only option available for the seller.
Now from the perspective of a buyer, a buyer can afford to buy a property at a
much cheaper rate than the actual market rate. A buyer can also buy such a
property which he/ she would not be able to otherwise without using this
method.
To explain this in a simpler way, according to the prescribed law, an

agricultural land cannot be sold for any residential purpose without converting
the use of the property. To avoid the same, majority of the land owners sell their
property assets without getting involved in the nitty gritties of legal hassle of
conversion and therefore, simply sell their property assets through a GPA.
In addition to the above, there are plenty of other legal limitations that
encourage property owners to captivate in sale of property via GPA. Moreover,
in most government housing schemes (DDA, etc.) where housing units are
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assigned on a leasehold basis, there is a stipulated development time period
before which the assignees cannot sell the property to any other party. To steer
clear of this procedure, such units of property are mostly transferred via a GPA.
Earlier, GPA was also considered as a safe medium to invest one‘s accounted
money in real estate. Also, in a lot of cases, members of a family grant rights of
a property through a GPA.
Apart from this, in a lot of cases, inexperienced homebuyers fall victim to

frauds pertaining to buying/ selling of properties and end up investing in
properties without comprehending the legality involved in the transaction of
property.
What did the 2011 Supreme Court judgment say?
The Supreme Court of India in 2011 declared that, ―a power of attorney is not
an instrument of transfer in regard to any right, title or interest in an
immovable property‖. In consonance to the same the Indian Apex court directed
the municipal bodies not to mutate or register properties based on such
documents. The Supreme Court, however, reinstated that valid transactions that
have been carried out through GPA would be legal.
The court further said, "Nothing prevents affected parties from getting
registered deeds of conveyance to complete their title. The said transactions
may also be used to obtain specific performance or to defend possession under
Section- 53 A of the Transfer of Property Act, 1882."
As a result of this Supreme Court order, numerous states across India prohibited
the registration of properties that were sold through a GPA. Furthermore, this
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landmark decision of the Supreme Court has already helped to restrict the free
flow of black money to some degree in the real estate sector in India, where
property titles are manipulated way too often. Besides this, due to this, a lot of
property transactions where prices were rounded off till now will be affected.
However, after a complete prohibition on such properties was imposed, the

Delhi government finally agreed to permit registration of properties in favour of
the rightful owner‘s spouses, daughters, sons, sisters, brothers as well as any
other relative or individual of trust of the registered owner.
What would happen if a person purchased a property through GPA?
The person who purchases a property through a GPA might well have the
―possession‖ of the property, but due to the absence of a genuine registered sale
deed, the person would not be considered as the rightful legal owner of the said
property.
Apart from this, due to the absence of valid property title with the person, it
would become next to impossible to sell off the property in the future, unless
and until, the person does it through a GPA by trying to extend the illegal
course of action.
What if a person is planning to purchase a property through GPA?
In addition to the above mentioned concerns, a potential buyer would also find
it extremely difficult to get finance from a bank in case he requires finance
against the property. This is because, as a standard practice of banks, they do
not finance money towards property transactions that are done through GPA.
Therefore, the only requisite to get finance from a bank while purchasing a
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property is for the property title to be absolutely clear.
Now, keeping in mind all of the above, what kind of powers can the
Principal grant to his/ her agent through GPA towards a property?
As explained earlier, a GPA must not be granted to execute transfer of titles in a

property. Instead, a grant of GPA to an agent can make the agent responsible to
manage and monitor the estate of the Principal, to manage and monitor the
rented properties rented properties of the Principal, even pay the occasional
utility bills as well as act as the official representative in home loan- related
transactions. Besides this, the Principal can further empower his/ her agent/
attorney to register his/ her property through a GPA.
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TRANSACTION OF PROPERTY OWNED BY PARTNERSHIP FIRM
A ―Partnership‖ is usually outlined as a relationship between people i.e. 2 or a

lot of persons, who have united to share the profits/ losses of the business that is
carried on by all or anyone of them acting for all. Such persons are known as
―partners‖ and therefore the concern is thought as ―partnership firm‖. The
document containing the terms of the partnership agreement, powers of the
partners and objectives of the partnership is thought as a ―partnership deed‖.
The Indian Partnership Act, 1932 (hereinafter known as the ―Act‖), governs the
conduct of the partnership business and therefore the minimum variety of
partners prescribed is 2, whereas the utmost variety is ten just in case of
companies doing Banking business and twenty in alternative cases. A minor
will be admitted solely to the advantages of the partnership business. The
partnership concern is to be registered with the Registrar of companies and on
registration a registration certificate is issued.
The Section14 of the Act defines what constitutes Partnership property. The
property of the firm is nothing however the joint property of the partners control
in their joint names as hostile the properties in hand by the individual partners in
their personal names. Partnership property consists of property originally
brought in by the individual partners as their capital contribution or might
incorporates property purchased by the partners collectively out of the funds
happiness to the partnership concern.
Issues might arise to see the ownership/ title of the immovable property, in
cases wherever either the property happiness to a partner is place to firm‘s use
or in cases wherever the immovable property is collectively in hand by the
partners i.e. by the partnership firm and therefore the same is reborn and title to
a collectively control property is given to a private partner. In such cases the
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courts have drawn a even handed line to differentiate and differentiate between
the two.
Section 22 two of the Act states that so as to bind the firm and everyone its
partners there from, each act should be worn out the name of the firm or
expressly on behalf of the firm. It‘s fascinating to create the firm punctually
represented by one or a lot of its partners as a celebration to any such dealing.
It‘s additionally processed that a mere description of the soul that he/ she could
be a partner of a firm might not be comfortable to bind the firm. In cases
wherever associate degree immovable property is to be non-inheritable or
oversubscribed off by method of purchase/sale or by method of lease or
otherwise, it‘s essential to create all or a number of the partners as parties and
not simply the firm in its name.
A Partnership isn‘t a legal entity and therefore the name of the partnership firm
is barely a collective expression representing all the partners constituting the
firm. Therefore a transfer of property will solely be created by or in favorof a
legal or juridical person as provided in Section five of the Transfer of Property
Act, 1882.
A Partnership firm in contrast to a corporation registered beneath the Indian

firms Act doesn‘t have a separate legal identity, completely different from
partner and a partnership firm cannot sell or purchase property in its name. A
partner has no understood authority to sell or purchase any immovable property
on behalf of the partnership.The legal entity is that the partner himself. All
partners in their individual capability ought to additionally be part of as parties
to the agreement to sell or to the conveyance deed and execute it in their
individual capability. Once an immovable property is transferred to a firm it
vests all told the partners of the firm and not within the firm, since the firm has
no separate legal existence.
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At sure times, one partner represents the partnership firm, that isn‘t an
accurate follow.In such cases, the aforesaid partner ought to have power of
lawyer or authority of alternative partners to execute the documents. Albeit a
partnership is made between a private and a partnership firm the deed of the
partnership ought to be signed by all the partners of the firm. Transfer of
property by or in favor of a firm while not the names of partners is ineffective.
However, the distribution of the assets of the firm on dissolution, wherever a

partnership property is split or distributed among partners or confiscated by one
or a lot of partners from others, doesn‘t quantity to transfer of property and
wishes no registration. Such a deed attracts tax beneath a separate class
Dissolution deed and not as a conveyance deed.
If the property purchased was within the name of a partner of the firm and on
his death, his share, right, interest within the property would vest in his heirs or
legal representatives. Just in case of transfer of such property, the heirs/legal
representatives of the deceased partner ought to additionally be part of the
execution of the document.
The interest of partners after dissolution
The term dissolution remains undefined under the Partnership Act, 1932.
According to Section 39 of this Act, the dissolution of partnership between all
the partners of a firm is called the dissolution of a firm.
Dissolution of partnership of a firm is a process involving the termination of

partnership relations between the partners of that firm. Such dissolution results
in the cessation in the existence of the firm. It involves the discarding and
disposing of all the assets of the firm, including settlement of accounts and
liabilities.
 Representative Rights
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According to Section 46, once the firm is dissolved, each partner or their
representative shall be entitled against the remaining partners for having the
firm‘s property to pay off the debts and liabilities of the firm. If there is any
excess property, after the payment of debts and liabilities, then such property
shall be distributed among the partners or their representatives, according to
their respective rights in the firm.
 Division of assets among the partners
According to Section 48(b)(iv), if there is any remaining assets even after

applying the said assets in accordance with the provisions in clauses (i), (ii) &
(iii) of Section 48(b), then such asset shall be distributed among the partners in
the same proportion in which they were entitled to profit sharing.
To conclude, Any property acquired by a firm for the purpose of carrying on its
business is a partnership property. Any property acquired by a firm for the
purpose of carrying on its business shall be solely used for the purpose of such
business and nothing else. Partners in a partnership business have various
ostentatious roles to play. For eg: Observance of good faith; indemnifying for
loss, participating in their duties in a diligent manner; no claim towards
remuneration; indemnifying for wilful negligence etc. The partners shall have
interests over the property and profits of a firm after dissolution. Provided that
such interest shall only be available to them, on the remaining property, after
the payment of all the debts and liabilities of the firm.
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The rules and restrictions you must be aware of when purchasing
agricultural land
Various states follow different procedures for the purchase of agricultural land.
In certain states only an agriculturist can purchase such land whereas there are
no restrictions in other states. All over India, NRIs and PIOscan‘t purchase
agricultural land/plantation property/farm houses. They can, however, inherit
agricultural lands.
Tamil Nadu
There are no restrictions for those looking at investing in agricultural land. The
maximum extent of land that can be purchased is 59.95 acres and it can be
converted into non-agricultural land by the orders of the district collector,
provided that no agricultural activity has been carried out in the said land during
the last 10 years (prior to the date of conversion).
Karnataka
Only an agriculturist can purchase agricultural land. A non-agriculturist is a

person whose income from any source exceeds Rs. 25 lakh per annum (earlier
the limit was Rs.2 lakh per annum). Under Section 109 of Karnataka Land
Revenue Act, 1964, social or industrial organisations can purchase agricultural
land with Government approval.
Kerala
Similar to Tamil Nadu, anyone can purchase agricultural land here. The
maximum ceiling limit of land area as per the Kerala Land Reforms Act, 1963
is as follows:
a) In case of an adult unmarried person or a family consisting of a sole

surviving member, five standard acres and the ceiling limit shall not be less than
six and more than seven-and-a-half acres.
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b) For a family consisting of two or more but no more than five members, 10
standard acres and the ceiling limit shall not be less than 12 and more than 15
acres.
c) If it‘s a family consisting of more than five members, 10 standard acres

increased by one standard acre for each member in excess of five, and the
ceiling limit shall not be less than 12 and more than 20 acres.
d) For any other person, other than a joint family, 10 standard acres and the
ceiling limit shall not be less than 12 and more than 15 acres.
Maharashtra
Only an agriculturist can purchase agricultural land and if a person holds such
land anywhere else in India, he can still be deemed an agriculturist in
Maharashtra. The maximum ceiling limit for such land is 54 acres.
Gujarat
Agricultural lands can‘t be purchased by a non-agriculturist. Earlier, only those

residing in the State could invest in agricultural land in Gujarat but in 2012 the
Gujarat High Court passed a judgement that allows any agriculturist in the
country to purchase such land in the State.
Madhya Pradesh and Rajasthan
There are no restrictions in these states. Earlier, under Section 17 of the

Imposition of Ceiling on Agricultural Holdings Act, 1973, there were certain
ceiling limits on buying agricultural land from the ‗Khatedars‘ in Rajasthan.
The provisions of this section were amended in 2010 and people from other
states can now purchase agricultural land here. One has to, however, apply for
conversion within a year from acquisition and commence the proposed non-
agricultural use within three years from the date of conversion in Rajasthan.
Haryana
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Certain areas in the State have been declared ‗controlled areas‘ and for those
looking at purchasing agricultural land in these areas for non-agricultural
purposes, they need to obtain a certificate indicating the change of land use
from the Government of Haryana.
Himachal Pradesh
Only an agriculturist belonging to the State can purchase agricultural land here.
People from other states require prior permission of the Government of
Himachal Pradesh u/s 118 of HP Tenancy and Land Reforms Act. The
maximum land ceiling limit in is 160 bighas or 32 acres.
West Bengal
As per the West Bengal Land Reforms Act, private ownership of agricultural
land in the State is capped at 17.5 acres for irrigated areas and 24.5 acres for
areas that are only rainfed. In urban areas, private ownership is capped at
7.5 cottahs or one-eighth of an acre. Only tea gardens, mills, workshops,
livestock breeding firms, poultry farms, dairies, and townships are exempted
from the restrictions of the Land Reforms Act.
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SLUM REHABILITATION AUTHORITY
The Government of Maharashtra has launched a comprehensive slum

rehabilitation scheme by introducing an innovative concept of using land as a
resource and allowing incentive floor space index (FSI) in the form of
tenements for sale in the open market, for cross-subsidization of the slum
rehabilitation tenements which are to be provided free to the slum-dwellers.
Jurisdiction of SRA
As per the provision 3A(1) of Chapter I-A of Maharashtra Slum Areas (

Improvement, Clearance and Redevelopment) Act, 1971 State Government of
Maharashtra vide Housing and Special assistance Department notification no.
SRP/1095/CR37/Housing Cell, dated 16 December 1995 and through necessary
statuary amendments has established Slum Rehabilitation Authority (SRA),
Mumbai to serve as Planning Authority for all Slum areas in the jurisdiction of
Municipal Corporation of Greater Mumbai. Subsequently by Govt. of
Maharashtra Hosting Department Notification no. SRP 1001/CR2017/14/SRI-1
dated 11 September 2014, area of the Thane Municipal Corporation has been
added in the jurisdiction of SRA
SRA's Responsibilities
It is the endeavor of SRA to implement the slum rehabilitation schemes by

providing a single window clearance for all types of approvals that are required
for the project namely formation of co-operative societies, certification of
eligibility of slum-dwellers, taking punitive action on non-participating slum-
dwellers obstructing the scheme, survey and measurement on slum lands grant
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of building permissions, leasing of rehabilitation plots and free-sale plots and
updating of property cards (PR cards).
The powers, duties and functions of the Slum Rehabilitation Authority are :
1. To survey and review existing position regarding Slum areas in greater

Mumbai.
2. To formulate schemes for rehabilitation of slum areas.
3. To get the slum rehabilitation scheme implemented.
4. To do all such other acts and things as may be necessary for achieving the
objective of rehabilitation of slums.
SRA as a Planning Authority
Slum Rehabilitation Authority has been given a status of corporate entity with
effect from 3rd January 1997. It is an independent autonomous body. By
amendment carried out to the Maharashtra Regional & Town Planning (MR &
TP) A ct 1966. SRA has been declared as a planning authority, to function as a
local authority for the area under its jurisdiction. The Chief Executive Officer,
SRA has been delegated the powers exercisable under various sections of the
MR & TP Act, 1966 by the State Government by its notifications UDD No.
TPV 4396 / 492 /CR -105 / UD-11, dated 13th September 1996. By an
amendment to the MR & TP Act 1966. SRA has been empowered to prepare
and submit proposals for modification to the Development Plan of Greater
Mumbai.
Under the SRA scheme, slum-dwellers get houses free of cost but they can't sell
or rent them out for 10 years.
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If sold after the lock-in period, the state government is entitled to an amount
equivalent to stamp duty or Rs 1 lakh, whichever is higher .
The Slum Redevelopment
As per a 2011 study, 62% of Mumbai's population lives in slums. In fact, the
largest slum in Asia, Dharavi is in Mumbai. Several massive slum clusters are
also found in the suburbs. In order to combat this, the State of Maharashtra
enacted The Maharashtra Slum Areas (Improvement Clearance and
Redevelopment) Act, 1971 ("the Slum Act").
Under the Slum Act, the 'Slum Rehabilitation Authority' ("SRA") was formed in
the year 1995 which comprised of a Chairperson being the Hon'ble Chief
Minister of Maharashtra and a Chief Executive Officer of the Authority being a
super time scale IAS Officer along with other members being Ministers, elected
members of the State Legislature, Secretaries of the concerned State
Government Departments and some non-official members who are experts in
the field of building construction, planning, architecture, social services, etc.
and tasked to complete all the requirements under the Act including survey and
review slums, formulate scheme under section 3-B of the Slum Act known as
'Slum Rehabilitation Scheme'("SRS") for rehabilitation and redevelopment of
slums, implementation of such schemes, declaring any area as slum and fit for
rehabilitation etc..
Prior to implementing an SRS, the SRA has to declare an area as a 'Slum Area'
which means any area which may be a source of danger to the health, safety or
convenience of the public of that area, or has no basic amenities, or is
overcrowded, or unfit for human habitation or detrimental to the health, safety
or convenience of the public. Once this step is completed, an SRS can be
initiated.
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Every slum structure existing prior to 01/01/1995 is treated as a protected
structure and every slum dweller whose name appears in the electoral rolls as on
1st January, 1995 and who continues to stay in the slum is eligible for
rehabilitation.
The slum dwellers then get to appoint a Developer for the implementation of the
SRS and after checking certain basic details, the Developer is appointed by
SRA for the redevelopment project.
What's in it for the Parties?
Once the Developer has been appointed by the slum dwellers and the SRA, all
the eligible slum dwellers get a free of cost self-contained unit for their own
residence, which is called as the Rehab Component. Since this legislation is
meant for the benefit of slum dwellers, they are not permitted to transfer (sell)
their flat or create any third-party rights thereon for at least 10 years.
As the Developer puts in resources in the form of money, men and material for
construction of free houses for the slum dwellers, the Developer is compensated
for his efforts in the form of the Free Sale Component, which can be
commercially exploited. The Free Sale component is basically the entire
development potential sanctioned by the authority under the Letter of Intent
(LOI), after removing the Rehab Component.
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THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT,
2016
The Real Estate (Regulation and Development) Act (hereinafter referred to

as “the Act”) came into force in 2016 with an objective to regulate the capital
intensive market of the Real Estate Sector.
It establishes an authority (Real Estate Regulation Authority) (hereinafter

referred to as “the Authority”) to keep the check and balances along with a
central advisory council and an appellate tribunal thus providing for
adjudication.
Though the act protects the interests of the allottees, the promoter, and the agent
as well, it majorly affects the allottees who have systematic and reliable
management to fall back to. Among other things, the act mandates certain
obligations on the promoters, not following of which attracts hefty liability and
penalties in the name of the promoter. These obligations bring a sense of
comfort to the allottee because of the transparency they provide. It also
promotes accountability and thus helps not only the allottee but
the bonafide builder as well and helps in carrying out the process smoothly with
several checkpoints. While these provisions are a boon for the bonafide
promoter, they are a bane for the malafide ones. Before the implementation of
the act, the corrupt, malafide, and unlawful practices of such promoters went
unchecked due to lack of proper mechanism, however, the same cannot be said
to be true now. Nonetheless, even with the strict provisions for transparency,
accountability, and liability unlawful activities still continue to take place - with
a decreased quantum, if not with the same intensity as before the
implementation of the Act.
This Act has the impact of changing the entire landscape of the real estate sector
and redefining the process of how real estate sales happen in the country. This
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has not only impacted the developers‘ community, but all the stakeholders in
the sector. Every stakeholder - right from the government, banker, PE and
consumers - is unlearning the old ways of operating and getting aligned to the
new systems/processes which are RERAfied
The key components of Real Estate (Regulation and Development) Act,

2016 are as follows:
1. Real Estate Regulatory Authority and Appellate Tribunal
Under this Act, appropriate government shall establish Real Estate Regulatory
Authority for regulation and promotion of the real estate sector in the State /
UTs [section 20(1)] The Authority shall strive to facilitate the growth and
promotion of a healthy, transparent, efficient and competitive real estate sector
while protecting the interest of allottees, promoters and real estate agents.
The authority shall also establish an adjudicating mechanism for speedy dispute
redressal regarding registered real estate projects. The key responsibilities of the
Authority shall be as follows:
 Ensuring Disclosures of Real Estate Projects by Promoters
 Real Estate Projects Registration
 Real Estate Agents Registration
 Complaints Redressal
 Provide recommendations to appropriate Government on in matters

relating to the development & promotion of real estate sector;
The appropriate Government shall also establish Appellate Tribunal to hear

appeals from the decisions, directions or orders of the Real Estate Regulatory
Authority. Any person aggrieved by any direction or decision or order made by
the Authority or by an adjudicating officer may file an appeal before the
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Appellate Tribunal and the appeal shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to dispose of the appeal within a
period of sixty days.
To give effect to the section 20 of the Real Estate (Regulation and

Development) Act, 2016 following real estate regulatory authorities came into
existence:
Sr. State/ union territories Website

no.
1 Andaman & Nicobar http://www.tnrera.in/
2 Andhra Pradesh https://www.rera.ap.gov.in
3 Bihar https://rera.bihar.gov.in/
4 Chandigarh http://rera.chbonline.in/
5 Chhattisgarh https://rera.cgstate.gov.in/
6 Daman & Diu https://maharera.mahaonline.gov.in/
7 Delhi https://rera.delhi.gov.in/
8 Goa https://rera.goa.gov.in/reraApp/
9 Gujarat https://gujrera.gujarat.gov.in/
10 Haryana https://haryanarera.gov.in/
11 Himachal Pradesh http://www.hprera.in
12 Jharkhand http://rera.jharkhand.gov.in/
13 Karnataka https://rera.karnataka.gov.in/
14 Kerala https://rera.kerala.gov.in/
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15 Madhya Pradesh http://www.rera.mp.gov.in/
16 Maharashtra https://maharera.mahaonline.gov.in/
17 Mizoram http://udpamizoram.nic.in/RERA.html
18 Odisha http://rera.odisha.gov.in/
19 Puducherry http://prera.py.gov.in/
20 Punjab https://rera.punjab.gov.in/
21 Rajasthan http://rera.rajasthan.gov.in/
22 Tamil Nadu http://www.tnrera.in/
23 Telangana http://rera.telangana.gov.in/
24 Tripura https://rera.tripura.gov.in/
25 Uttrakhand http://www.uhuda.org.in/
26 Uttar Pradesh http://www.up-rera.in
2. Real Estate Projects Registration
All commercial and residential real estate projects will have to register except in
projects where
 area of land proposed to be developed does not exceed five hundred

square meters
 number of apartments proposed to be developed does not exceed eight

inclusive of all phases
 promoter has received completion certificate for a real estate project prior
to commencement of this Act
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 for the purpose of renovation or repair or re-development which does not
involve marketing, advertising selling or new allotment of any apartment,
plot or building, as the case may be, under the real estate project
If any promoter fails to register as per Act, he shall be liable to a penalty which
may extend up to ten per cent of the estimated cost of the real estate project. On
continued violation, he shall be punishable with imprisonment for a term which
may extend up to three years or with fine which may extend up to a further ten
per cent of the estimated cost of the real estate project, or with both.
Apart from Registration, the promoters shall be required to provide quarterly

updates on the status of the project to the authority.
3. Real Estate Agents Registration
All Real Estate Agents should register under this Act. No real estate agent shall
facilitate the sale or purchase of or act on behalf of any person to facilitate the
sale or purchase of any plot, apartment or building, as the case may be, in a real
estate project or part of it, without obtaining registration under this section.
If any real estate agent fails to register, he shall be liable to a penalty of ten
thousand rupees for every day during which such default continues, which may
cumulatively extend up to five per cent of the cost of plot, apartment or
buildings, as the case may be, of the real estate project, for which the sale or
purchase has been facilitated
4. Filing of complaints
Any aggrieved person may file a complaint with authority or the adjudicating
officer, as the case may be, with respect to any registered real estate project, for
any violation or contravention of the provisions of this Act or the rules and
regulations made there under. The Authority shall establish an adjudicating
mechanism for speedy redressal of such complaints.
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Any person aggrieved by any direction or decision or order made by authority
or by an adjudicating officer may file an appeal before the Appellate Tribunal
Any person aggrieved by any decision or order of the Appellate Tribunal, may
file an appeal to the High Court
5. Financial Discipline
The Act strives to ensure greater financial discipline in the real estate sector.
Some of its provisions are as follows:
 A promoter shall not accept more than ten per cent of the cost of the
apartment, plot, or building as the case may be, as an advance payment or
an application fee, from a person without first entering into a written
agreement for sale with such person and register the said agreement for
sale
 Seventy per cent of the amounts realized for the real estate project from
the allottees, from time to time, shall be deposited in a separate account to
be maintained in a scheduled bank to cover the cost of construction and
the land cost and shall be used only for that purpose
 Withdrawal from such accounts shall be in proportion to the percentage

of completion of the project, which shall be certified by an engineer, an
architect and a chartered accountant in practice.
 Promoter to compensate buyer for any false or incorrect statement with

full refund of property cost with interest
6. Transparency
The Act shall drive great transparency in the real estate sector as follows:
 Details of all the Registered Projects shall be available online for citizens
including:
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o sanctioned plans, layout plans, along with specifications, approved
by the competent authority
o Proposed Plan, Proposed Layout Plan of the whole project and

Floor Space Index proposed to be consumed in the whole project,
as proposed by the promoter
o Proposed Number of building(s) or wing(s) to be constructed and

sanctioned number of the building(s) or wing(s).
o the stage wise time schedule of completion of the project, including

the provisions for civic infrastructure like water, sanitation and
electricity.
o quarterly update of the list of number and types of apartments or

plots, as the case may be, booked
o quarterly update of the list of number of covered parking, garages

booked;
o quarterly update of the list of approvals taken and the approvals

which are pending subsequent to commencement certificate;
o quarterly update of the status of the project; and
The advertisement or prospectus issued or published by the promoter

shall mention prominently the website address of RERA authority, wherein all
details of the registered project have been entered and include the registration
number obtained from the Authority
7. Citizen Centricity
 Citizens shall be able to view, on authorities website, all disclosures

pertaining to registered projects. This shall enable data driven informed
decision making.
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 Promoter cannot make any additions and alterations in the sanctioned
plans, layout plans and specifications and the nature of fixtures, fittings
and amenities etc. without the previous consent of at least two-thirds of
the allottees, other than the promoter, who have agreed to take apartments
in such building.
 If the promoter fails to complete or is unable to give possession of an

apartment, plot or building, in accordance with the terms of the
agreement for sale, he shall be liable to pay interest for every month of
delay. Further, in case the allottee wishes to withdraw from the project,
without prejudice to any other remedy available, to return the amount
received by him with interest
 Promoter to enable formation of Legal Entity like Cooperative Society,

Company, Association, Federation etc. within three months from the date
on which 51 per cent of the total number of Purchasers in such a building
or a wing, have booked their apartment.
 Promoter shall execute a registered conveyance deed in favour of the

allottee within three months from date of issue of occupancy certificate or
51 per cent of the total number of Purchasers in such a building or a wing,
have paid the full consideration to the promoter, whichever is earlier.
Real Estate (Regulation and Development) Act 2016 is a step towards

reforming the real estate sector in India, encouraging greater transparency,
citizen centricity, accountability and financial discipline.
One can see RERA impacting in following ways
Real estate would move from being an unorganised sector to an organised

one:
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RERA coupled with the recent demonetisation move is expected to bring in
discipline within the real estate sector, which should lead to a significant
consolidation and clean-up. Many unorganised and opportunistic players are
expected to move out, thus leaving only strong organised players behind.
Developer‘s promoters must adapt to the changing environment and make

suitable changes to the business model whilst adhering to compliances.
An increase in transparency:
Pre-launches soft launches of projects before obtaining adequate approvals and

permissions have been a common phenomenon during the last few years. The
Act attempts to address this issue by prohibiting sales and marketing of the units
before registering the project with the regulatory authority. With developers
disclosing approval status, project layout and time-frame for project completion
to regulators and customers, RERA is set to increase transparency in the real
estate sector.
Today, aggrieved home-buyers must reach out to consumer courts, which are
already loaded with cases from various sectors. Once the real estate authorities
are set-up, buyers can expect faster redressal of their complaints as these
authorities will handle only real estate-related matters.
A change in investors' approach (towards existing and new investments):
While investors are expected to show an increased interest in the real estate
sector in coming times, there might a change in their approach, to accommodate
risks and legal aspects in their contracts with developers. Many investors are
showing concern on the RERA provisions that might define them as 'promoter'
and, hence, may increase their responsibility towards legal contractual
obligations.
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The investors would now be more careful while finalising contracts with
developers, thus keeping a check on their (investor) liabilities in case of non-
compliance with RERA. They might also be looking to dilute their stakes in
existing troubled investments contracts and might renegotiate terms to limit
liabilities.
Empowerment of consumers:
Minister of Housing and Urban Poverty Alleviation, M Venkaiah Naidu said,

"Real Estate Act is one of the most consumer-friendly laws passed by the
Parliament and states have no power to dilute its provisions. This law, which
was widely welcomed and appreciated benefits both, the buyers and sellers of
real estate properties besides enhancing the credibility of the sector".
Also, the preamble to the Act says..."An Act to establish the Real Estate
Regulatory Authority for regulation...and to protect the interest of consumers in
the real estate sector". The Act includes multiple provisions to protect and
empower the real estate buyers consumers. It wouldn't be wrong to say that
consumer empowerment and protection would be the most important themes of
RERA.
The key provisions empowering a real estate buyer include:
 The Refund of the amount paid along with interest and compensation, if
the promoter fails to comply with the terms and conditions of the
agreement for sale or is unable to give the possession of the unit
purchased;
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 Prior written consent of at least two-thirds of the allottees for any
structural changes, or transfer assignment of the majority rights and
liabilities by the promoter;
 Defect liability period of five years from the date of possession.
A possibility of reduction in launches of new projects (in the short-term):
There might be a possibility of reduction in new launches of projects in real

estate, as developers struggle to complete existing projects and take a pause to
clearly understand RERA implications before launching new projects. Even
with the focus on completion of existing projects, developers might feel the
pinch due to market slowdown and cash crunch faced by the sector, post
demonetisation.
While it's a long road ahead with several opportunities for improvement, RERA
signals towards a path leading to a more sound and robust real estate market in
India. Much, however, will depend on the government avoiding past mistakes
and the success of implementing RERA
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THE MAHARASHTRA REAL ESTATE REGULATORY AUTHORITY
The Government of India has enacted the Real Estate (Regulation and
Development) Act 2016 and all the sections of the Act shall come into force
with effect from May 1, 2017.
Under this Act, the Government of Maharashtra established Maharashtra Real

Estate Regulatory Authority (MahaRERA), vide Notification No. 23 dated 8
March 2017, for regulation and promotion of real estate sector in the State of
Maharashtra, with its headquarters at Mumbai.
Consequently, the Government of Maharashtra also promulgated the following

rules:
 The Maharashtra Real Estate (Regulation and Development)(Registration

of Real Estate Projects, Registration of Real Estate Agents, Rates of
Interest and Disclosures on Website) Rules, 2017
 The Maharashtra Real Estate Regulatory Authority, Officers and

Employees (Appointment and Service Conditions) Rules, 2017
 The Maharashtra Real Estate (Regulation and Development) (Recovery

of Interest, Penalty, Compensation, Fine payable, Forms of Complaints
and Appeal, etc.) Rules, 2017
 The Maharashtra Real Estate Appellate Tribunal, Officers and Employees

(Appointment and Service Conditions) Rules, 2017
 The Maharashtra Real Estate Regulatory Authority (Form of Annual

Statement of Accounts and Annual Report ) Rules, 2017
 The MahaRERA has notified the following Regulations and Orders
o The Maharashtra Real Estate Regulatory Authority (General)

Regulations, 2017.
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o The Maharashtra Real Estate Regulatory Authority (Recruitment
and Conditions of Service of Employees) Regulation, 2017.
o Charges for accessing MahaRERA web-based Application for

registration of project and real estate agents, extension of
registration for projects and real estate agents including updating
website, database management and maintenance under regulation
48 of the MahaRERA General Regulations, 2017
The Maha RERA is headquartered at Mumbai.
Registered project under MahaRERA:
In maharashtra:
Applicant type Applications Registration Completed

received granted projects as per
form 4
Promoter 28772 28414 6672
Agent 28636 28193 0
Total 57408 56607 6672
In daman and diu and Dadra nagar haveli
Applicant type Applications Registration Completed

received granted projects as per
form 4
Promoter 134 131 29
Agent 2 2 0
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Total 136 133 29
Complaint registration and redressal
Total A Complaints Orders passed Total

complaints against against orders
received registered registered passed
projects projects
1357 12981 8413 9162
B Complaints Orders passed

against un- against un-
registered registered
projects projects
776 749
Filling of complaint under the authority:
1. The Complaint can be filed only against Real Estate Projects or

Agents Registered under MahaRERA. If your project is not
registered on MahaRERA then you can send an email on
sourceinformation about the same. MahaRERA will look into the
matter. (Please note this will be treated as Source Information and
not a Complaint)
2. Complainant must have following details (documents) ready before

filling up the complaint:
a. Facts of the Case
b. Relief(s) sought In view of the facts mentioned in paragraph

4 above, the complainant prays for the following relief(s)
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c. Interim order, if prayed for: Pending final decision on the
complaint the complainant seeks issue of the following
interim order
3. Complainant must have an Email ID and Mobile Number for

registration on MahaRERA, these contact details will be used by
MahaRERA officials in future to communicate with you.
Step 1: The Complainant must register himself/herself on the online portal by

creating his/her unique Username and Password.
https://maharerait.mahaonline.gov.in
Step 2: Next, following window will open then select appropriate details such as
a. User Type: Complainant
b. State/UT: Either – Maharashtra or Dadra Nagar Haveli or

Daman and Diu
c. User Name: *This should be a unique name, which you will

use later to enter into the online portal
d. Password and Confirm
e. Email ID: This Email id will be used to communicate for

future official communications
f. Mobile Number: This mobile number will be used to

communicate for future official communications
Once all the details are correctly filled, user will be created and you will move
one step ahead. A verification link will be sent to your given email id for
confirmation.
Step 3. On successful user registration, you can enter the system using your
User name and Password.
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Once logged into the system click on Accounts, then click on My Profile.
Enter Details as given:
a. Individual details
b. Address for Official Communication: House Number, Building Name,

Street Name, Locality, Landmark, State/UT, Division, District, Taluka,
Village, Pin Code.
c. Contact Details: Mobile Number and Email Id
Step 4: Now for Complaint registration, click on the Complaint Details tab will
expand in two more sub tabs as Add New Complaints and List of Complaints.
To add your complaint, click on New Complaints and start filling up the details
as instructed below.
Adding Complaint can be done in 5 easy steps, if you have all the details ready
as mentioned in the introduction section.
a. Division: Konkan, Amravati, Aurangabad, Pune, Nagpur and

Nashik
b. Registration Number: You will find this number using steps

mentioned in the introduction section.
c. Project/Agent Name and Promoter Name will appear

automatically.
Add Complainant (Individual who wants to file complaint) with following

details:
a. Complainant Name:
b. Complainant Type: Promoter/ Real Estate Agent / Allotee / Other – If

other specify the same.
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c. Please state your nature of interest in this project
d. Address of existing office/residence of the complainant: House Number,

Building Name, Street Name, Locality, Landmark, State/UT, Division,
District, Taluka, Village, Pin Code
e. Contact Number: Mobile Number, Office Number and Email id
Add Respondent (Individual against whom you want to file a complaint) with
following details:
a. Respondent Name
b. Respondent Type: Promoter/ Real Estate Agent / Allotee / Other – If

other specify the same.
c. Address of existing office/residence of the Respondent: House Number,

Building Name, Street Name, Locality, Landmark, State/UT, Division,
District, Taluka, Village, Pin Code
Step 4: Upload Documents – Add short description of the mentioned details and
upload the documents.
a. Facts of the Case
b. Relief(s) sought In view of the facts
c. Interim order, if prayed for
Step 5: Declaration – This declaration contains disclaimer that all the

information is is true and is not pending before any court of law or any other
Authority or any other Tribunal(s).
Step 6: Once all the steps are covered and completed successfully, click on
Payment tab at the left hand side. A dashboard with all the details will appear
and at the end a Payment button. Click on the payment button and make
payment using – Online or offline mode.
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S.No Number of Cases pending Number .of cases Number of Cases
with adjudicating officers at received during disposed of by
the start of the year the year by the the Adjudicating
Adjudicating Officers
Officers
1 239 2543 1151
Complaints against unregistered 688

project:
Dipsopal of complaints: 56
Source: MahaRERA Annual Report 2019
The Maharashtra Real Estate Apeallate Tribunal:
The appeal under the Maharashtra Real Estate Apeallate Tribunal can be file
only against Real Estate Projects or Agents Registered under MahaRERA and
for which the Complaint is filed earlier and FINAL ORDER for the same is
passed by MahaRERA Authority.
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If complaint is pending with MahaRERA:
If the complaint filed under MahaRERA is pending then the complainant have
to wait for the Final order and later may be filed appeal if need so.
The appeallant must be ready with below Documents to before filing complaint:
 Facts of the Case
 Grounds of Appeal
 Relief(s) sought In view of the facts mentioned
 Reason Condonation for Delay can be added here
 MahaRERA Final Order
Mandate for appeallant:
An email Id and mobile number for registration on MahaRERA, which can be

used by MahaRERA official for the purpose of communication
A Step by step procedure to file an appeal:
4. The Appellant must register himself/herself on the online portal by

creating his/her unique Username and Password
https://mahareat.mahaonline.gov.in
5. Next, following window will open then select appropriate details

such as
a. Username
b. Password
c. Email ID
d. Mobile number
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Once all the details are correctly filled, user will be created and you will move
one step ahead. An SMS will be sent to you for successful registration.
6. On successful user registration, you can enter the system using

your User name and Password.
7. By cliking on My profile the appeallant is required to fill details

such as
a. Individual details
b. Address
c. Contact details
8. Now for Appeal registration, click on the Appellate Details tab, it

will expand in two more sub tabs as Add New Appellant and List
of Appeals. To add your Appeal, click on Add New Appellant and
start filling up the details as instructed below
9. Adding Appellant can be done in 6 easy steps, if you have all the
details ready as mentioned in the introduction section.
10.Later file appeal request with details such as
a. Division: kokan, amaravati, aurangabad, pune, nashik,

nagpur
b. Complaint number ; add MahaRERA complaint number and

then verify
c. Registration number/ project name/ and promoter name will

appear automatically
11.Later add apeallant with below details:
a. Appeallant name
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b. Appeallant types: promoter/real estate agent/ allotee/ other
c. Address
d. Contact number
e. You can add more than one appeallant
12.Later fill the detail of other party
a. Name of other party
b. Other party types
c. Address
13.Next is the stage of appeallan declaration
14.Further you have to upload documents and add short description

such as
a. Facts of the Case Appellant MUST provide details like

Registration agreement date/MoU/Allotment letter Date of
possession in the facts of the case clearly along with other
FACTS OF THE CASE
b. Grounds of Appeal
c. Relief(s) sought In view of the facts mentioned
d. Reason Condonation for Delay can be added here
e. MahaRERA Final Order
15.Declaration – This declaration contains disclaimer that all the

information is is true and is not pending before any court of law or
any other Authority or any other Tribunal(s)
144
16.Payment of fees: Once all the steps are covered and completed
successfully, click on Payment tab at the left hand side. A
dashboard with all the details will appear and at the end a Payment
button. Click on the payment button and make payment using –
Online or offline mode
The MahaRERA Conciliation Forum:
Section 32 of the Real Estate (Regulation and Devlopment) Act, 2016

encourages the Real Estate Regulatory authorities established under the act to
perform certain function with the intent of promoting the real estate sector under
the which section 32 (g) of the act mandate that to promote or facilitate the
growth, transperance in real estate sector the authorities must take
―measures to facilitate amicable conciliation of disputes between the promoters

and the allottees through dispute settlement forums set up by the consumer or
promoter associations‖
With the intent to give effect to this provision it was proposed to establish
MahaRERA Conciliation and Dispute Resolution Forum that shall facilitate
resolution of disputes amicably, thereby saving cost and time of litigation to
parties and State, promoting greater public satisfaction with legal system and
dispute resolution.
Under the mechanism of the Forum, if the parties don‘t reach a consensus, the
allottee(s) will have the possibility to lodge a formal complaint against the
builder via MahaRERA Complaints Portal.
The objectives of the MahaRERA Conciliation and Dispute Resolution Forum

shall be as follows:
 Constitute / establish panel of eminent Conciliators representing different

stakeholder groups.
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 To follow Conciliation rules emanating from best features of common
and civil law systems after extensive consultation with practitioners
 To promote and popularize the amicable and effective settlement of

disputes arising with reference to Real Estate ( Regulation and
Development ) Act 2016, with various Alternate Dispute Resolution
(ADR) mechanism.
 To popularize conciliation as an effective dispute resolution mechanism

with moderate cost (cost effective) and speedy settlement of commercial
disputes.
 To co-ordinate/assist ADR proceedings by establishing facilities and

providing administrating services.
 Finally providing the best platform for ADR.
The MahaRERA Conciliation forum shall be primarily governed by Core

Committee namely the MahaRERA Conciliation and Dispute Resolution Forum
Core Committee.
For online application:

https://mahareraconciliation.mahaonline.gov.in/?MenuID=1087
The procedure for online application and subsequent closure shall be as

prescribed.
 The allottee needs to register on the conciliation forum application portal,

by entering his login credentials.
 After successful login, he/she needs to complete the conciliation request

form for raising his/her request.
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 The other party will be intimated regarding the request through both SMS
and e-Mail. After getting the request they need to click on the
confirmation link.
 After the confirmation is received, the payment option will be made

available against the conciliation request for the allottee.
 After successful payment, a conciliation bench will be allocated based

upon availability. Same will be intimated to both the parties via SMS &
e-mail.
 In case of successful conciliation, after the conciliation hearing the parties

will be required to sign a conciliation agreement, which will be uploaded
for closing the request.
List of conciliators shall be access at

https://maharera.mahaonline.gov.in/Site/1089/List-of-Conciliators
Statistics:
Conciliation received Conciliation in process Conciliation completed

with consent form both
the parties
717 57 660
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THE INDIAN CONTRACT ACT, 1872
This legislation specifies when a party can be said to have the capacity to
contract. A contract pertaining to realty can be entered into, among others, by an
individual (who is not a minor or of unsound mind), partners of a firm, a
corporate body, a trust, a sole corporation, the manager of an undivided family,
and a foreigner. All the requirements of a valid contract, i.e. consideration,
intention to contract and validity under the law of the land must be satisfied.
Significance of Real Estate contract:
The Real estate contracts play a significant role in real estate investing. As a
property investor, one will required to negotiate and sign contracts while
striking any real estate deal. Therefore, it is absolutely necessary for to be well-
informed about the various real estate contracts.
What Is a Real Estate Contract?
A real estate contract is a legally binding agreement between two or more

parties for exchange, purchase, or any other type of real estate transaction. This
document outlines the terms agreed upon after negotiations have ensued.
As in any legal transaction, real estate contracts are essential in the execution
of real estate transactions. They are designed to protect both parties. They form
the basis of legal action that can be taken if any of the parties does not fulfill the
terms of the contract.
Requirements for a Real Estate Contract
As it is the case with other contracts, the following requirements must be met
for a real estate contract to be enforceable:
 Offer: One party typically makes an offer by preparing a written real

estate contract, signing it, and handing it to the other party. The other
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party either accepts the offer, makes a counteroffer, rejects it, or fails to
respond.
 Acceptance: The other party can accept the offer by signing it. The
contract must possess original signatures by both parties for it to be
enforceable. Both parties should initiate any alterations to the contract. If
a counteroffer is made, the original offer will be terminated and it won‘t
be legally binding since both parties didn‘t agree to the terms. When the
offer is rejected, it is terminated. If there is no response to the offer, it
automatically terminates by the expiration date indicated on it.
 Consideration: This is something of value that is exchanged between the

two parties in the real estate transaction. Consideration is mostly in the
form of money. It could also be a promise to perform or another property.
 Legal Capacity: The parties involved should be eligible to enter into a

contract. They should not be mentally impaired, minors, etc.
 Legality of Purpose: The contract should not call for illegal action.
Several kinds of Real Estate Contract:
1. Purchase Agreement
Out of all the types of real estate contracts, this is the most common. A purchase
agreement (also called a sales contract) is a binding contract between two
parties (property buyer and property seller) to transfer a particular property.
This contract specifies the details regarding the sale of a property.
The following are the main components of a purchase agreement:
 Identity of the parties
 Description of the property
 Condition of the real estate property
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 Purchase price
 The important details, obligations, and rights of the real estate contract
 A list of contingencies
 Appliances and fixtures that are included in the sale and those excluded
 Earnest money deposit
 Type of deed
 Closing costs and the party responsible for paying each cost
 The signatures of both parties
 Terms of possession
 Date of closing
2. Lease Agreement
A lease agreement is a real estate contract that binds a property owner

(landlord) and a renter (tenant) to the property. The landlord agrees to offer
his/her property for the tenant to reside in at a specified monthly rate. Apart
from the rent amount, the agreement also includes important provisions such as
the security deposit and payment of utilities. All important items should be
included in the lease agreement to prevent any legal disputes in the future.
3. Power of Attorney
Of all the types of real estate contracts, this one is quite unique. A Power of
Attorney is used in situations where the principal (a person who has given
permission for someone to act in his/her place) is not physically able to sign a
real estate contract. In this case, the principal will appoint another party to act as
the power of attorney so that they can sign the contract on their behalf. This
may happen when the principal is in the following situations:
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 Mentally disabled
 Hospitalized or has any other illness that restrains his/her ability to sign
the contract
 Not physically present in the country to be able to sign the contract
 Owns several investment properties
 Is an elderly parent or relative who may not be able to sign the contract
Registration of Real Estate contracts/agreements:
In India, all real estate transactions involving the sale, conveyance or lease of
immovable property and land require registration of the definitive agreements or
deeds (such as the sale deed or conveyance deed and the lease deed), as the case
may be. In a real estate transaction, an agreement to sell, a memorandum of
understanding, or a letter of intent (which provides for execution of a definitive
agreement or deed at a later date) does not ordinarily require registration.
The law on registration of documents in India is contained in the Registration

Act, which provides for compulsory registration of certain documents, while
there are other situations where registration of documents is optional.
Registration of the following is mandatory:
 instruments of gifts of property;
 54leases of immovable property from year to year;
 non-testamentary instruments, such as deeds of exchange;
 documents assigning rents;
 sales of immovable property; and
 trust deeds evidencing interest in immovable property with a value of 100

Indian rupees or more.
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Registration of the following is optional:
 wills;
 leases of immovable property not exceeding one year; and
 instruments evidencing interest in immovable property with a value of

less than 100 Indian rupees.
If a document that is required to be registered is not registered, it cannot affect

any immovable property, confer any power to adopt or be received as evidence
of any transaction affecting such property. A registered instrument over the
same property will rank above an unregistered instrument covering the same
property.
The Registration Act, 1908
The purpose of this Act is the conservation of evidence, assurances, title,

publication of documents and prevention of fraud. It details the formalities for
registering an instrument. Instruments which it is mandatory to register include:
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create,

declare, assign, limit or extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of

any consideration on account of instruments in (2) above.
(d) leases of immovable property from year to year, or for any term exceeding
one year, or reserving a yearly rent
The Sales, mortgages (other than by way of deposit of title deeds) and
exchanges of immovable property are required to be registered by virtue of the
Transfer of Property Act. Evidently, therefore, all the above documents have to
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be in writing. Section 17 of the Act provides for optional registration. An
unregistered document will not affect the property comprised in it, nor be
received as evidence of any transaction affecting such property (except as
evidence of a contract in a suit for specific performance or as evidence of part-
performance under the Transfer of Property Act or as collateral), unless it has
been registered. Thus the doctrine of part performance dealt with under Section
53 A of the Transfer of Property Act and the provision of Section 49 of the
Registration Act (which provide that an unregistered document cannot be
admissible as evidence in a court of law except as secondary evidence under the
Indian Evidence Act) together protect the buyer in possession of an unregistered
sale deed and cannot be dispossessed. The net effect has been that a large
number of property transactions have been accomplished without proper
registration. Further other instruments such as Agreement to Sell, General
Power of Attorney and Will have been indiscriminately used to effect change of
ownership.
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THE TRANSFER OF PROPERTY ACT, 1882
This act is a central act and lays down the general principles of realty, like part-
performance and has provisions for dealing with property through sale,
exchange, mortgage, lease, lien and gift. A person acquiring immovable
property or any share/interest in it is presumed to have notice of the title of any
other person who was in actual possession of such property
Responsibilities of the seller during transfer of property
Section 54 of the Act talks about the responsibilities of the seller of a

property:
 To disclose to the buyer any material defect in the property.
 To provide to the buyer on his request for examination, all documents of

title relating to the property.
 To answer to the best of his information, all relevant questions put to him
by the buyer with respect to the property or the title.
 To execute a proper conveyance of the property, when the buyer tenders

it to him for execution at a proper time and place, on payment or tender of
the amount due in respect of the price.
 To take as much care of the property and all documents, which are in his
possession, as an owner of ordinary prudence would take of such
property, between the date of the contract of sale and the delivery of the
property.
 To give the buyer possession of the property.
 To pay all public charges and rent accrued with respect to the property,
up to the date of the sale.
 To discharge all encumbrances on the property then existing.
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Duties of the buyer during transfer of property
 To disclose to the seller any fact about the property, of which the buyer is
aware of but has reason to believe that the seller is not aware of and
which materially increases the value of such interest.
 To pay the purchase money to the seller at the time and place of
completing the sale.
 To bear any loss arising from the destruction, injury or decrease in value
of the property not caused by the seller, where the ownership of the
property has passed on to the buyer.
 To pay all public charges and rent, which may become payable on the
property, the principal monies due on any encumbrances subject to which
the property is sold and the interest thereon afterwards accruing due,
where the ownership of the property has passed on to the buyer.
THE INDIAN EASEMENT ACT, 1882:
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This act governs the law relating to easementry rights to immovable property
Easement and easementry rights:
An easement is a right which the owner of a property has to compel the owner
of another property to allow something to be done, or to refrain from doing
something on the survient element for the benefit of the dominant tenement. For
example - right of way, right to light , right to air etc.
An easementary right is almost like a privilege, depriving which the owner of

one tenement has a right to enjoy regarding that tenement in or over the
tenement of another person, by reason of which the latter is obliged to suffer or
abstain from doing something on his own tenement for the advantage of the
former. Easementary right must possess the following essentials:
i. Dominant and survient tenement
ii. Easement should accommodate the dominant tenement
iii. Easementary rights must be possessed for the beneficial enjoyment of the
dominant tenement.
iv. Dominant and survient owners must be different persons.
v. The easementary rights should entitle the dominant owners to do and

continue to do something or to prevent and continue to prevent something
being done, or in respect of , the survient tenement; and
vi. The something must be of a certain or well defined character and be

capable of forming the subject matter of a grant
A. RIGHT OF WAY
There are two classes of right of way
a. Public rights of way which exist for the benefit of all people. These are
Highway, navigating way. Its origin is in dedication, express or implied.
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b. By way of -Private rights of way which is vested in particular individuals
or to owners of particular tenements; and its origin is found ingrant or
prescription or to certain classes of persons or certain portions of the
public, such as the tenement of a manor, or the inhabitant of the parish or
village.
An easementary right of way is created by - Express grant or by immemorial

custom, necessity or by prescription, or by statute or through private dedication.
The term "general right of way" is applied to private rights of way on which
there are no restriction except the necessary qualification, which nature or the
law requires regarding all private rights of way. Actual significance of the term
general right of way lies in its use in contradistinction to the special limitations
expressed or inferred upon the user of any particular right of way over and
above the limitations thus imposed by general law.
Apart from statute, the determination of the question who may use a right of
way depends upon the nature and extent of the right. If the right is created by
grant, the persons or classes or persons entitled to use it may be expressly
limited by the terms of the instrument, a grant of this kind being construed, not
strictly, but in accordance with the apparent intention of the parties. As a
general rule the persons or the classes of persons who may use the right must be
ascertained by construing the instrument having regard to the general
circumstances surrounding the exception of the grant. The most important of
these circumstances are the nature of the place over which the right is granted,
and the nature of the dominant tenement, and the purposes for which that
tenement is, in the contemplation of the parties, intended to be used.
A person who is enjoining the right of way by more than 20 years without any
obstruction by the person in whose land a person pass thru, but one exception
for this is; if such person having another way then he cannot claim easementary
right by way of prescription
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Remedies:
The person claiming for an easementary right of way has the remedy to sue for
an injunction - to restrain obstruction of the way or for getting damages.
Whether any particular interruption amounts to an unlawful interference or not
depends upon the nature of the right of way and of the place, and also on the
circumstances of the case. If he suffers no damage by obstruction, nominal
damages will be awarded only, and an injunction will be refused. A person who
purported exercise of a right of way makes on excessive user of the survient
tenement commits a trespass and may be restrained from doing at the instance
of the survient owner. The factor for deciding the excessive user depends on the
scope of the right, based on the true construction of an express grant or based on
the user, established by the prescription as the case may be.
B. RIGHT OF LIGHT& AIR
The right to light is basicaly the right to prevent the owner or occupier of an
adjoining tenement from building or placing on his own land anything which
has the effect of illegally obstructing or obscuring the light of the dominant
tenement.
The easementary right to light is a right to be protected against a particular form

of nuisance, and an action for the obstruction of light which has in fact been
used and enjoyed for twenty years without having any interruption , or written
consent cannot be sustained unless the obstruction amounts to an actionable
nuisance.
The right of light is an easement and may be acquired.
a. by way of - either grant or by covenant, which may be express or implied.
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b. as per the provisions of the India Easement Act, and by Presciption under
the Prescription Act in England. These acts necessitate an enjoyment
without interruption for a period of twenty years to confer the right.
c. by way of reservation on the sale of the survient tenement. If the vendor

of a land desires to reserve any right in the nature of easement and for
taking the benefit of his adjacent land which he is not parting with, he
must do it by express words in the deed of conveyance, except in the case
of easement of necessity.
The interference complained of amounts to a nuisance or not cannot be

determined by the fact - whether the diminution is enough materially to lessen
the amount of light previously enjoyed, nor it can be determined by the fact that
how much light is left, without regard to what there was before, but it can be
properly decided by the fact - whether the diminution (i.e. difference between
the light before and the light after the obstruction) really makes the building to a
sensible degree less fit than it was before, for the purposes of business or
occupation as per the ordinary requirements of mankind.
So far as the easementary right to access of air is concerned, it is co-existence

with the right to light. In this regard it is pertinent to note that the owner of the
house cannot by prescription claim an entitlement of the flow and uninterrupted
passage of current of wind, neither the owner of the house is entitled to right of
uninterrupted flow of breeze as such, rather he can claim only such amount of
air which is sufficient for sanitary purposes. He cannot be allowed to sustain his
unjustifiable claim in this regard.
Remedies:
Regarding the cases of easementary right of light the Courts generally do not
interfere by way of injunction where the courts find that the obstruction of light
is very slight and where the injury sustained is trifling, except in such rare and
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exceptional cases. Here again it is necessary to understand that no damage is
substantial unless it materially diminishes the value of the dominant heritage, or
interferes materially with physical comfort of the plaintiff, or prevents him from
carrying on his accustomed business in the dominant heritage as beneficially as
he had done previous to instituting the suit.
In India the Court has discretion: It may or may not issue an injunction
depending on the fact- where the injury is such that pecuniary compensation
would not afford adequate relief.
In some cases a mandatory injunction will also be granted. Court will grant such
injunction where a man, who has a right to light and air which is obstructed by
his neighbor's building, brings his suit and applies for an injunction as soon as
he can after the commencement of the building, or after it has become apparent
that the intended building will interfere with his light and air. But the court
should be satisfied that a substantial loss of comfort has been caused and not a
mere fanciful or visionary loss.
If plaintiff has not brought his suit or applied for an injunction at the earliest
opportunity, and has waited till the building has been finished, and then asks the
Court to have it removed, a mandatory injunction will not generally be granted.
THE SPECIFIC RELIEF ACT, 1963
This Act is only to enforce individual civil rights. A person dispossessed of

immovable property without his consent (other than in due course of law) can
recover possession by a suit filed within six months from the date of
dispossession. Unless the contrary is proved, in a suit for specific performance
of a contract, the Court shall presume that a contract to transfer immovable
property is one in which monetary compensation for its non-performance would
not afford adequate relief. The Court could also grant a permanent/ mandatory
injunction preventing the breach of such contract and award damages.
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Recovery of possession of Immovable property
Section 5 and 6 of the Specific Relief Act, 1963 provide methods for recovery
of possession of the certain specific immovable property. Section 5 of Specific
Relief Act, 1963 provides that a person entitled to the possession of any specific
immovable property can recover it in the manner prescribed by the Code of
Civil Procedure, 1908 (5 of 1908).
Section 5 provides the manner for recovery of specific immovable property. It

reads as, ―A person entitled to the possession of the specific immovable
property can recover it in the manner provided by the Code of Civil Procedure,
1908‖.
The essence of this section is ‗title,‘ i.e. the person who has better title is a
person entitled to the possession. The title may be of ownership or
possession. Thus, if ‗A‘ enters into peaceful possession of land claiming his
own although he might have no title, still he has the right to sue another who
has ousted him forcibly from possession because he might have no legal title
but at least has a possessory title.
It is a principle of law that a person, who has been in a long continuous

possession of the immovable property, can protect the same by seeking an
injunction against any person in the world other than the true owner. It is also a
settled principle of law that owner of the property can get back his possession
only by resorting to due process of law. It states that a suit for possession must
be filed having regard to the provision of the Code of Civil Procedure.
Section 6 of the Specific Relief Act deals with the provision related to suit by
person dispossessed of immovable property. It reads as,
―(1) If any person is dispossessed without his consent of immovable property

otherwise than in due course of law, he or any person claiming through him,
may by suit recover possession thereof.
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(2) No suit under this section shall be brought-
 After the expiry of six months from the date of dispossession.
 Against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted
under this section, nor shall any review of the decree under this section is
allowed.
(4) Nothing in this section shall bar any person from suit to establish his title to
such property and to recover possession thereof.‖
Section 6 is only applicable if the plaintiff proves:
1. That he is in juridical possession of the immovable property in dispute.
2. That he had been dispossessed of without his consent and without due
process of law.
3. That dispossession took place within six months from the date of suit.
Section 5 and 6 both give alternative remedies and are mutually exclusive.
Under section 5, a person dispossessed can get possession on the basis of title,
whereas in section 6, a person dispossessed may recover possession by proving
previous possession and further wrongful dispossession.
Possession in the context of section 6 means legal possession which may exist
with or without actual possession and with or without rightful origin. The
plaintiff in a suit under section 6 need not establish title.
The objects of section 6 are as follows.
 To discourage people from taking the law into their hands (however good
their title may be).
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 To provide a cheap and useful remedy to a person dispossessed of
immovable property in due course of law.
Further, it should be noted that where the grant of possession is purely

gratuitous, the owner has the right to reclaim possession even without the
knowledge of a person in possession. The only prayer in a suit under section 6
can be a prayer for recovery of possession. Consequently, a claim for damages
cannot be combined with that for possession.
Recovery of possession of Movable property
Section 7 and 8 of the Specific Relief Act, 1963 contains provisions for
recovery of possession of some specific movable property. Section 7 of Act
with the head ‗recovery of Specific movable property‘ provides that, ―a person
entitled to the possession of the specific movable property may recover it in the
manner provided by the Code of Criminal Procedure, 1908 (5 of 1908).
Explanation 1: A trustee may sue under this section for possession of the
movable property to the beneficial interest he is entitled.
Explanation 2: A temporary or special right to the present possession is

sufficient to support a suit under this section.‖
The main ingredients of section 7 are as follows.
 First, the plaintiff must be entitled to the possession of the movable

property. A person may be entitled to the possession of a thing either by
ownership or by virtue of a temporary or a special right as provided under
explanation 2 of section 7. A special or temporary right to an individual
may arise by either act of the owner of goods i.e. bailment, pawn etc. or
not by the act of the owner of goods i.e. a person may be the finder of
goods and finder of goods enjoys special right to possession except
against true owner.
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Only those persons can maintain a suit under section 7, who has the present
possession of the movable property. A person who does not have present
possession of the movable property cannot maintain a suit under this section.
Illustration: ‗A‘ pledges some jewels to ‗B‘ to secure for the loan he had taken.
‗B‘ disposes those jewels to ‗C‘ before he is entitled to do so. ‗A‘ without
having paid the amount of loan sues ‗C‘ for possession of jewels. The suit shall
be dismissed as he is not entitled to immediate possession of jewels.
 Further, the property in question must be specific movable property

means that property should be ascertained or ascertainable. Specific
property means the very property not any property equivalent to it. The
disputed specific movable property must be capable of being delivered
and seized. Where the goods have been ceased to be recoverable or are
not in control of the defendant, the plaintiff is not entitled to a decree for
recovery.
Article 91(b) of the Limitation Act, 1963 provides a period of three years for the
filing of suit computable from the date when the property is wrongfully taken or
when the possession becomes unlawful.
Section 8 of the Specific Relief Act, constitutes the provision related to Liability
of a person in possession not as owner, to deliver to a person entitled to
immediate possession. It reads as;
―Any person having the possession or control of a particular article of movable

property, of which he is not the owner, may be compelled specifically to deliver
it to the person entitled to the immediate possession of, in any of the following
cases:
(a) When the thing claimed is held by the defendant as the agent or trustee of
the plaintiff.
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(b) When compensation in money would not afford the adequate relief for the
loss of the thing claimed.
(c) When it would be extremely difficult to ascertain the actual damage caused
by its loss.
(d) When the possession of the thing claimed has been wrongfully transferred
from the plaintiff.
Explanation- Unless the contrary is proved, the court shall in respect of any
article of movable property claimed under clause (b) or clause (c) of this
section, presume-
(a) That compensation in money would not afford the adequate relief for the
loss;
(b) that it would be extremely difficult to ascertain the actual damage caused by
its loss.‖
The following ingredients must coexist in order to bring section 8 into

operation:
 The defendant has full control or possession of the article claimed.
 Such an article is movable property.
 The person claiming the possession must be entitled to immediate

possession;
 The defendant is not the owner of the article.
 The thing claimed is held by the defendant as an agent or when

compensation in money would not afford adequate relief for the loss or
when it is extremely difficult to ascertain the actual damage of the thing
claimed.
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Under clause (a) the burden is on the plaintiff to prove the fiduciary
relationship, and under clause (d) also it is the burden on part of the plaintiff to
prove wrongful transfer.
Illustrations: In case, where the idol of the family temple is in custody of a

retired priest as he is bound to return it to the family because the actual damage
is unascertainable.
The Urban Land (Ceiling and Regulation) Act, 1976 (Repealed)
This legislation fixed a ceiling on the vacant urban land that a ‗person‘ in urban
agglomerations can acquire and hold. A person is defined to include an
individual, a family, a firm, a company, or an association or body of individuals,
whether incorporated or not. This ceiling limit ranges from 500-2,000 square
metres (sq. m). Excess vacant land is either to be surrendered to the Competent
Authority appointed under the Act for a small compensation, or to be developed
by its holder only for specified purposes. The Act provides for appropriate
documents to show that the provisions of this Act are not attracted or should be
produced to the Registering officer before registering instruments compulsorily
registrable under the Registration Act. The objective of acquiring the excess
vacant land could not be achieved because of intrinsic deficiencies in the
legislation itself. The provisions under Sections 19, 20 and 21 of the Act have
together proved counter-productive to the objectives of the legislation. So far,
only 19,020 hectares could be taken possession of by State Governments and
Union Territories and the remaining land was locked up in various litigations2 .
This has only helped push up land prices to unconscionable levels and
practically brought the housing industry to a stop. This legislation was repealed
by the Centre in 1999. The Repeal Act, however, shall not affect the vesting of
the vacant land, which has already been taken possession by the State
Government or any person duly authorised by the State Government in this
regard under the provisions of ULCRA. The repeal of the Act, it is believed, has
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eliminated the large amount of litigation and released huge chunks of land into
the market. However the repeal of the Act has not been carried out in all states.
Initially the repeal Act was applicable in Haryana, Punjab and all the Union
Territories. Subsequently, it has been adopted by the State Governments of
Uttar Pradesh, Gujarat, Karnataka, Madhya Pradesh and Rajasthan. Andhra
Pradesh, Assam, Bihar, Maharashtra, Orissa and West Bengal have not adopted
the Repeal Act so far
THE INDIAN EVIDENCE ACT, 1872
Under the Act, whenever the status of any person as the owner of a piece of
immovable property of which he is shown to be in possession is questioned, the
burden of proving that he is not the owner lies on the person who asserts that he
is not the owner
Burden of proof as to ownership
When the question is, whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner.
Possession is a prima facie proof of ownership. It is an evidence of complete

title. Section 110 has incorporated this principle. But this principle does not
apply when possession is obtained by fraud or force. Mere wrongful possession
is insufficient to shift the burden of proof. According to this section when a
person is shown to be in possession of any property, the presumption is that he
is the owner of that property. If anybody denies his ownership, burden lies on
him to prove that he is not the owner of the property.
The possession of property, real or personal is presumed prima facie to be full

owner of it. The policy of law is to allow a person to continue his possession
until a rival claimant proves his title. Thus, the presumption under section 110
would apply only if two conditions are satisfied, viz.—
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(i) that the possession of the plaintiff is not wrongful, and
(ii) that the title of the defendant is not proved.
Example: A is in possession of a cycle. В claims the cycle as his, В has to prove

that he purchased it and burden lies on B.
THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN

LAND ACQUISITION, REHABILITATION AND RESETTLEMENT
ACT, 2013
This act governs the acquisition of private lands by the Government for certain
public purpose or for a company and the compensation and rehabilitative
measures to be undertaken thereto by the Government.
Provisions and purpose of land acquisition
As per the Act, the government of India (state, as well as central) can procure
land for its own use or for public sector companies or for ‗public purpose‘,
which can include any of these:
 For any work related to state or national security or defence services of

India, which includes naval, military, air force or other armed forces,
under the purview of the state or central government.
 For building public infrastructure but excluding private hospitals, private

educational institutional and private hotels.
 For any project involving agriculture or allied industries, such as dairy,

fisheries or meat processing, owned by the government or by farmer‘s
cooperatives.
 For industrial corridors, manufacturing zones or other projects listed in

the National Manufacturing Policy. This can also include mining
activities.
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 For water harvesting, conservation structure projects or for planned
development or improvement of village sites.
 For government-aided educational and research institutions.
 For planned development, such as creating housing projects for the

weaker sections, in rural or urban areas.
 For developing residential projects for the poor or landless, or for people
affected by natural calamities.
Importance of Consent:
When the government acquires land for public purposes and controls the land
bank directly, the land owners‘ consent is not a necessity. However, when the
land is acquired for setting up private companies, the consent of at least 80% of
the affected families is mandatory. If the project is undertaken through a public-
private partnership, then, 70% of the affected families have to give their consent
for the land acquisition process.
Compensation under the Land Acquisition Act
Section 26 of the Act that deals with compensation for the land owners. It
outlines the proposed minimum compensation, based on multiples of the market
value. Usually, the market value is multiplied by a factor of one of two times,
for land acquired in rural and urban areas.
The market value of the land is determined by the average sale price for similar
types of land situated in the nearest village or nearest vicinity area. This sale
price is assessed, by considering one-half of the total number of sale deeds or
the agreements to sell, in which the highest price has been mentioned.
The compensation can also be a consented amount, in case the land is acquired
for private companies or public-private partnership projects.
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STATE LAWS GOVERNING THE REAL ESTATE
While each state has its own set of laws, which govern planned development,
rules for construction and floor-area-ratio (FAR) or floorspace-index (FSI) and
formation of societies and condominiums, two laws that exist in every state, are
the stamp duty and rent laws. Stamp Duty is being covered in a later section.
Rent legislation in India has been in existence for a very long time. Rent control
by the government initially came as a temporary measure to protect the
exploitation of tenants by landlords after the Second World War. However these
rent control acts became almost a permanent feature. Rent legislation provides
payment of fair rent to landlords and protection of tenants against eviction.
Besides, it effectively allows the tenant to alienate rented property. Tenants
occupying properties since 1947 continue to pay rents fixed then, regardless of
inflation and the realty boom. Some of the adverse impacts of the Rent Control
Act are:
• Negative effect on investment in housing for rental purposes.
• Withdrawal of existing housing stock from the rental market.
• Accelerated deterioration of the physical condition of the housing stock.
• Stagnation of municipal property tax revenue, as it is based on the rent.
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• Resultant deterioration in the provision of civic services.
• Increase in litigation between landlords and tenants
The Rent Control Act, in fact, is the single most important reason for the
proliferation of slums in India by creating a serious shortage of affordable
housing for the low income families. Low and middle-income families typically
live in rented accommodation all over the world and the need for such
accommodation in our cities will only increase as the economy modernises,
labour mobility increases and urbanisation takes place. It is, therefore, necessary
to increase the stock of rental housing. Promotion of rental housing can have a
significant impact on the economy in many ways:
 It reduces shortage of housing for a large section of the population who

cannot afford ownership.
 Housing construction being a labour intensive activity, investment in

housing generates employment for both skilled and unskilled labour.
 Housing has backward and forward linkages with many other industries.
 Rental housing helps in stabilising real estate prices and checking

speculation and, thus, makes housing affordable for the weaker sections.
 It helps check proliferation of slums.
In 1992, the Central Government proposed a model rent control legislation,

which was circulated to all states. The model Act proposed modification of
some of the existing provisions regarding inheritance of tenancy and also
defined a rent level beyond which rent control could not apply. A new Delhi
Rent Control Act based on this model law was passed in 1997 but it has not
been notified to date because of resistance from traders who are sitting tenants.
Only a few states have introduced the model Act
STAMP DUTY
171
There is a direct link between Registration Act and Stamp Act. Stamp duty
needs to be paid on all documents which are registered and the rate varies from
state to state.
Stamp Duty Provision in Maharashtra
Stamp duty rates on property depend upon several criteria across Maharashtra
state. This includes whether the property is located in urban or rural areas, total
cost of the transaction, etc. Earlier in April 2020, the Maharashtra government
has reduced stamp duty on properties for the next two years, in the areas falling
under the Mumbai Metropolitan Region Development Authority (MMRDA)
and municipal corporations of Pune, Pimpri-Chinchwad and Nagpur. This
means that stamp duty on properties in Mumbai, Pune and Nagpur, was charged
at 5% (4% stamp duty + 1% metro cess).
Stamp duty Stamp duty

rates rates
applicable applicable
Stamp duty rates
from from
Cities applicable (w.e.f. April 1,
September 1, January 1,
2020)
2020 till 2021 till
December 31, March 31,
2020 2021
Mumbai 5% (includes 1% metro cess) 2% 3%
6% (includes local body tax

Pune 3% 4%
and transport surcharge)

Thane 3% 4%
172
Navi Mumbai 3% 4%
Pimpri- 6% (includes local body tax

3% 4%
Chinchwad and transport surcharge)

Nagpur 3% 4%
The registration charges in the state are 1% of the total cost, for the properties
priced below Rs 30 lakhs and capped at Rs 30,000 for properties priced above
Rs 30 lakhs.
173
THE MAHARASHTRA OWNERSHIP FLATS (REGULATION OF THE
PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND
TRANSFER) ACT, 1963
Prior to the time that the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963, there
were found to exist several incidence in the state, sundry abuses, malpractices
and difficulties relating to the promotion of the construction and the sale and
management and transfer of flats taken on ownership basis and that such
abuses, malpractices and difficulties were increasing.
However situtation change In 1963 as the above Act was therefore passed for
the regulation of basis in the State of Maharashtra. By virtue of the provisions
of the Act and the Notifications issued this Act is made applicable to the Areas
within State of Maharashtra.
The Maharashtra Ownership of Flats (Regulation of the Promotion,

Construction, Sale, Management and Transfer) Act, 1963 (“the MOFA”) has
been enacted to regulate the promotion, construction, sale, management and
transfer of flats sold on an ownership basis within the State of Maharashtra.
It is proven to be an important piece of legislation as it lays down the

responsibilities of real estate developers / builders in respect to flats sold by
them and conversely the rights of flat purchasers within the State.It was
introduced in the Legislative Assembly, which aims at protecting the interest of
flat purchasers and show in transparency and discipline in transaction of flats
by putting a check on malpractices.
174
Legislative History of the Maharashtra Ownership of Flats (Regulation of the
Promotion, Construction, Sale, Management and Transfer) Act, 1963
The aforementioned act received the President assesnt on 12th december 1963
and thereby it was First published in official gazatte on 16th december 1963
The Legislative history of MOFA is as below:
 Amended by Maharashtra 29 of 1964

 Amended by Maharashtra 53 of 1974 (1-1-1975)
 Amended by Maharashtra 15 of 1990s (17-3-1990)
Some of the important provisions that are defined under section 2 of the act
are as below:
1) Section (a-1) "Flat" means a separate and self-contained set of premises

used or intended to be used for residence, or office, show-room or shop
or godown [or for carrying on any industry or business] (and includes a
175
garage), the premises forming part of a building 8[and includes an
apartment
The Explanation to the definition provides that even if a separate bathing,

washing, sanitary, etc. arrangement is made between two or more premises,
they shall be deemed to be separate and self-contained. Thus, in order to be
construed to be a flat, all the above ingredients must be fulfilled.
2) Section 2 (c) “Promoter” means a person and includes a partnership

firm or a body or association of persons whether registered or not] who
constructs or causes to be constructed a block or building of flats [or
apartments] for the purpose of selling some or all of them to other
persons, or to a company, co-operative society or other association of
persons, and includes his assignees; and where the person who builds
and the person who sells are different persons, the term includes both;
General liabilities of Promoter:
Since from the above definition it is cleared now who can be considered as the
promoter under this act there are some general liabilities that have been
provided for promoter under section 3 of the MOFA 1963 and are as below:
As per subsection (1) of the section 3 the promoter intending to construct

building consisting of flats or block and all of which or some of which are taken
on ownership is liable to give or produce the information and document that
can be ask in the further subsections
Subsection (2) of the section 3 provides 14 duties/liabilities of the promoter

that are listed as below
a. Full and true disclosure of the nature of title to the land

b. Full and trud disclosure of all encrumbrances on such land including
rights, title, interest, or claim any party
c. give inspection in seven days' notice or demand, of the plans and
specifications of the building built or to be built on the land
176
d. disclose the nature of fixtures, fittings and amenities (including the
provision for one or more lifts) provided
e. disclose all agreements (and where there is no written agreement the
details of all agreements) entered into by him with the architects and
contractors regarding the design, materials and construction of the
building;
f. speciQy in writing the date by which possession of the flat is to be
handed over (and he shall hand over such possession accordingly)
g. prepare and maintain a list of flats with their numbers already taken or
agreed to be taken, and the names and addresses of the parties, and the
price charged or agreed to be charged therefor, and the terms and
conditions if any on which the flats are taken or agreed to be taken
h. state in writing, the precise nature of the organisation of persons to be
constituted and to which title is to be passed, and the terms and
conditions governing such organisation of persons, who have taken or
are to take the flats;
i. not allow persons to enter into possession until a completion certificate
j. make a full and true disclosure of all outgoings (including ground rent if
any, municipal or other local taxes, taxes on income, water charges and
electricity charges, revenue assessment, interest on any mortgage or
other encumbrances
k. true copies of such of the documents referred to in any of the clauses of
this sub-section as may be prescribed at a reasonable charge therefo
l. display or keep all the documents, plans or specifications (or copies
thereof) referred to in clauses (a), (b) and (c), at the site and permit
inspection thereof to persons intending to take or taking one or more
flats
m. when the flats are advertised for sale, disclose inter-alia in the
advertisement the following particulars, namely :-
(i) the extent of the carpet area of the flat including the area of the
balconies which should be shown separately;
(ii) the price of the flat including the proportionate price of the
ccommon areas and facilities which should be shown separately,
to be paid by the purchaser of flat; and the intervals at which the
instalments thereof may be paid
(iii) the nature, extent and description of the common areas and
facilities; and
177
(iv) the nature, extent and description of limited common areas and
facilities, if any;]
n. sell flats on the basis of the carpet area only
The last duty provided in clause (n) didn’t find the position in the act orginally
and was however added by the Maharashtra Ownership Flats (Regulation of
the promotion of construction, sale, management and transfer) (Amendment)
Act, 2008 effective from 12th May, 2008
3) section 2 (d) “Registrar” means the Registrar as defined in the

Maharashtra Co-operative Societies Act, 1960, or, as the case may be, in
the Companies XV Act, 1956
 section 2 subsection (24) of the Maharashtra Co-operative Societies Act,
1960 act define the term “ Registrar " as a person appointed to be the
Registrar of Co-operative Societies under this Act
So far as the provision of Registrar is concern section 5A was inserted in the

Mofa 1963 via the Maharashtra Ownership Flats (Regulation of the Promotion
of construction of sale, management and transfer) Act, 2005.
The provision of section 5A is as below:
The State Government may, by notification in the Official Gazette Competent

appoint an officer, not below the rank of the District Deputy Registrar of Co-
operative Societies, to be the Competent Authority, for an area or areas to be
specified in such notification and different officers may be appointed as
Competent Authority for different local areas, for the purposes of exercising
the powers and performing the duties under sections 5, 10 and 11 of this Act.
So from the reading of provision of above section it is now clear that the
district deputy registrar of co-operative societies will be considered as the
178
competent autority and he is empower to adjudicate the matters that falls
under section 5, 10, 11 of the MOFA 1963.
To understand as to what can be covered under the jurisdiction of the

Competent Authority being the District Deputy Registrar of Co-operative
Socities let’s take quick look at what the provisions of section 5, 10, 11 says/
contains.
SECTION 5: A thorough reading of Section 5 can be understood or conclude as

the the promoter under this act is liable to maintain a separate account in any
bank for depositing those advance sums of money which he may take it or
received from the persons who are intending to purchase the flats from his
construction project. Other than those sums taken as an advance for flat
purchasing transaction the promoter also liable to deposit those money so
taken towards the share capital for the formation of co-operative society or a
company, or towards the outgoings (including ground rent, if any, municipal or
other local taxes, taxes on income, water charges, electricity charges, revenue
assessment, interest on any mortgage or other encumbrances, if any). The
promoter is in obligation to use those sums only for such purpose for which it
was received or given. Further he is also under an obligation to make full
disclosure of all the transactions in the event of demand in writing by an officer
appointed via special or general order of the state governemnt in this regards.
It is to be noted that not just this act oblige the promoter to have transperancy
in the terms of transactions but it also puts a punishment provision for those
who acts in contravention of the provision contemplated under section 5 of
the act. The said punishment provision has been provided under subsection (1)
of section 13 of the act, according to which the promoter who act in criminal
breach of trust with regard the advance of sum or deposits for the purpose
179
mentioned under section 5 he shall on the event of conviction be punish with
an imprisonment that may extend to three year or with fine or with both.
The MOFA Rules 1964 provides for the practical application of the provision,
remedies specified under the MOFA 1963. For instance the said rules have
provided the requirement of the documents necessary if one has to make an
application under section 5 of the act [RULE 11(5)]].
The Rules contemplates that every application filed under section 5 shall be
in form VI and shall affix court fees stamp of Rs.500/-. Furhter it mandates
the every such application has to be accompained by certified copies of the
registered Agreement for sale entered into with the promoter/opponent party
and the proof of payments made to the promoter/ opponent party.
Other than the above mentioned document the applicant application must
have to be accompained with documents such as:
 Copy of the demand letter / notice / Bill issued by the opponent on the
applicant for collection of various charges, advance money etc.
 Copies of demand letter or legal notice served on the Promoter /
opponent for disclosure of transactions.
 Application and enclosures should be tendered in such number of sets as
required depending on the number of opponents involved.
The applicant made under section 5 of the makes the following person as
opponents
 the persons,firm or the company or its partner or the director and every
person involved in the collection of moneys from the flat purchasers for
the management of the building/s or the structures and who is liable for
disclosureof information provided therein including the promoter
180
for ready reference below is the format given for the application under
section 5 of MOFA 1963
Application No.____________ of 20_________
Applicant/s
Versus
Promoter/s Opponent/s
The applicant/s state as under:-
1. The Applicant/s is/are the purchaser/s of at/shop / Unit No________ in

building No.____________which is known as____________ constructed
on plot No.______ bearing Survey No._________ village________,
District :________.( hereinafter referred to as the said building).
2. The said building has been constructed by opponent No____ and since
the completion of the building, the common facilities of the said building
is being managed by Opponent No._____.
3. The Opponent No____ has collected Rs._______ from every flat
purchasers Rs._______ as deposit as corpus, advance maintenance
charges of Rs._______for the period of _____ month. He has been
collecting thereafter monthly charges of Rs._______.
(Complete description of any advance or deposit including any sums so taken

by the promoter/s/ opponent/s towards the share capital for the formation of
a co-operative society or a company, or association, or towards the outgoings
(including ground rent, if any, municipal or other local taxes, taxes on income,
water charges, electricity charges, revenue assessment, interest on any
mortgage or other encumbrances, Transfer fees / donation/ premium /
181
contribution for issuing necessary No objection or admitting the new purchaser
as the member of the proposed society / company/ association if any).
4. The copy of the agreement executed with the Promoter / Opponent is being
annexed hereto as exhibit No._______.
5. The copy of demand letter / Bill/ receipts issued by the Opponent No____
for the various advances / deposit and sums towards the outgoings for the
maintenance of the said building is annexed hereto as exhibit No._______.
6. The promoter / Opponent No. _______ has failed to provide all the details of
transactions in respect of the advance / deposit / regular sum collected on
various accounts from the flat purchasers in spite of several oral as well as
written demand made by the applicant.
7. As mentioned above, the applicant had issued due notice by the registered
post on__________ to the Promoter / Opponent and demanded the complete
disclosure of money collected and the purpose for which the same has been
spent and also informed them that; it the Promoter / Opponent fail to provide
the said details, an application under section 5 of the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale, Management and
Transfer ) Act, 1963 before the competent Authority. Hence this application
has been filed before the competent authority.
8. The applicant/s state/s that the details demanded by the applicant is legal
and filed with bona fide intention and there is no lawful cause on the part of
the Opponent / Promoter to deny the applicant’s demand and hence the
application should be decided favourably.
182
9. The cause of action has arisen in the jurisdiction of the Competent
authority/ District Deputy Registrar, _________, Co-operative societies,
District:____________ and the application has been Properly filed.
10. The applicant prays that:-
(a) The Promoter / Opponent should be directed to disclose and provide all the
transactions in respect of advance/ deposit/regular charges collected from the
flat purchasers from the beginning till date and the utilization thereof.
(mention the period and the amount collected from the at purchasers)
(b) The Promoter/Opponent should be directed to provide for costs of the

application to be provided.
(c) For such other relief as this Hon’ble Competent Authority may deem fit.
In support of the above relief, I/ We, enclose documents and papers as per the
list attached hereto.
Date:
Place: Applicant’s signature:
183
VERIFICATION
I, SHRI_________________________________ being the applicant/ Chief

Promoter of proposed society and authorized representative above named,
residing at
_____________floor_______________________________________________
________________________do hereby state on solemn affirmation that what
is stated in the foregoing application is true to my own knowledge and I believe
the same to be true.
Solemnly declared at___________
This________________20__. Sd/-
Sd/-
Advocate for Applicants
Before me
Sd/-
Notary Public
Note:-
When an applicant is a body corporate, a copy of the resolution of its

committee or board of directors shall accompany the application.
184
SECTION 10 :
Another provision of the section which comes under the jurisdiction of District
Deputy Registrar of the Co-operative societies being the competent authority
as under section 5 of the act, is contemplated/ provided under section 10 of
the act.
Subsection (1) of section 10 oblige the promoter to form a co-operative society

or company once the minium number of person that are required to form such
have taken/purchase flats in his building , further he within prescribed period
is required to submit an application to the Registrar for registration of the
organisation of persons who take the flats as Co-operative society or, as the
case may be, as a company; and the promoter shall join, in respect of the flats
which have not been taken, in such application for membership of a Co-
operative society or as the case may be, of a company.
Proviso to this subsection makes consequential provision if the promoter fails

to oblige the obligation provided in the subsection as above. The proviso
maintained that in case the promoter fails to make an application before
registrar for the sake of formation of co-operative society or company, the
person who have taken flats from that promoter can voluntarily make the said
application. And the competent authority upon receiving such application
direct the District Deputy Registrar, or, as the case may be, Assistant Registrar
concerned, to register the society
The second proviso to the subsection (1) of section 10 maintained before the
competent authority could give direction as under the first proviso. It will his
duty to first verify the authenticity of the applicants , request and giving the
concerned promoter a reasonable opportunity of being heard.
185
However as per subsection (2) of the section 10 the co-operative socities may
not be formed if the promoter has submitted the property consisting of
building to the provision of the Maharashtra Apartment Ownership Act, 1970,
by executing and registering a Declaration as provided by that Act. In such case
the promoter has to inform the registrar of the cooperatives socities.
The practical aspect of the section 10 can be seen under the provision of MOFA
Rules wherein the provision of application under section 10 is provided.
It maintains that Every application filed under section 10 shall be in form VII
and shall affix court fees stamp of Rs.1000/-. Further the said application is to
be accompanied by, wherever possible, certified copies of the following
documents;
(i) The registered Agreement for sale entered into with the
promoter/opponent party
(ii) 7/12 Extract, Village Form No. 6 (Mutation Entries);
(iii) Property card;
(iv) Title and Search Report issued by an Advocate;
(v) Non-Agricultural Order;
(vi) Plan approved by the appropriate authority;
(vii) Commencement Certificate;
(viii) Completion Certificate;
(ix) Occupation Certificate;
(x) List of Flat Purchasers and unsold flats;
186
(xi) Proof of payment of Stamp Duty & Proof of Registration of at least 60% of
the flat purchasers in the building/s;
(xii) Legal notice send to the promoter demanding the formation of the society
or the association or the company as provided under the Act.
Format of Application u/s 10 of Maharashtra Ownership Flats ( Regulation of

the Promotion of construction Sale, Management and Transfer ) Act, 1963
Before the Competent Authority
Format of Application u/s 10 of Maharashtra Ownership Flats ( Regulation of

the Promotion of construction, Sale, Management and Transfer ) Act, 1963
Application No.____________ of 20________
Applicant/s
Versus
THE APPLICANT/S ABOVE NAMED STATE AS FOLLOWS:-
1. The Applicant is the chief promoter of __________________ Cooperative

Housing Society Ltd( Proposed ) having its address at Plot
No.________________________________________
(address)_________________________________________________ ______
hereinafter referred to as the “said proposed society” for the sake of brevity.
The proposed Society has been constructed on the Plot of land bearing
No._______, hissa No.________ admeasuring __________sq. metres,
hereinafter described as the said land.
187
2. The chief promoter has been elected in the meeting of at owners held on
__________ and the copy of the resolution is annexed and marked Exhibit –
―A”.
3. The Opponent No.1 is the builder/ Promoter duly registered as a Private

Limited Company/Partnership Firm under Indian Companies/Partnership Act.
The Opponent No.2 is the Executive Director/Principal Partner/ legal heir of
(for each defendant some proof for making him/her defend should be given as
an evidence- Copy of the duly registered agreement is annexed hereto as
Exhibit No____.)
4. The Applicant states that the building of the Society consists of _____ wings
/ _________ building known as _________. ( give the description of each
building like the number of flats/ shops / garage / row houses etc constructed
on the said land. A list of flats, its area, name of the purchaser also should be
annexed. If the Building is constructed as scheme or a development project
under a Layout Plot as approved by the local authority or the plan approving
appropriate authority the same should be mentioned and if there is an
evidence, the same may be annexed as Exhibit No.______).
5. The Applicant state that the Defendant No.1 and their agents entered into
agreement for sale Of flats/ shops with the individual purchasers of the flat/
shop and entered into agreement for sale of the said flat/shop as required
under section 4 of the Maharashtra Ownership Flats Act,
1963 and all such agreements are duly stamped as required under the Bombay
Stamp Act, 1958 and also duly registered as required under the Registration
Act, 1908.
188
6. The defendant No.1 and their agents have agreed to register the society or
company or association of flat purchasers to maintain the building and
common areas. The copy of the said agreement for sale executed with one of
the flat/ shop purchaser MR/ Mrs_________________with the defendant No 1
is enclosed herewith and marked as exhibit No. _______.
7. And a list of flat purchasers with the details of flat No., area, stamp duty
paid, registration No,, Registration fees paid etc is given in Exhibit No._______.
8. The Applicant states that the Applicant had written the 1St letter dated
__________ and final notice dated ________to the Builder / developer /
Opponent Nos.1 & 2 bringing to his notice that he/ she / they has/ have failed
to register the society as provided under section 10 of Maharashtra Ownership
Flats Act, 1963 and the Rules hereunder. Hereto annexed and marked Ex-
―___” is the copy of the said letter/ Notices.)
9. The applicant further states that the flat owners in their meeting have
elected the applicant as a chief promoter and also have authorized the
applicant to register the society without the co-operation of the builder /
Promoter / Opponent/s
10. The Applicant states that the Opponent No.1 to ___ their agents and
servants are denying or not co-operating for registration of the society. The
Applicant is, therefore, entitled to get the direction / order from this
competent authority for registration of the society by the flat purchasers of the
said building as per the provisions of the Maharashtra Co-operative societies
Act, 1960. (Details of the sequence of events and the correspondence may be
mentioned by the applicant here).
11. The Applicant will rely upon a list of documents which is annexed hereto.
189
12. The Applicant therefore prays that:-
(a) That this Hon’ble Competent Authority be pleased to grant a direction/

order for registration
of the society without the co-operation of the builder / Promoter/ Opponent

and their agents
speci
cally who have failed to comply with section 10 of the Maharashtra Ownership
Flat Act 1963 regarding registration of the co-operative society.
(b) For costs of the application to be provided.
(c) For such other reliefs as this Hon’ble Competent authority may deem fit.
Sd/-
Advocate for Applicant
Sd/-
Applicant
190
VERIFICATION

Promoter of proposed society and authorized representative above named,
residing at _____________ floor______________________________.
____________________________________________________do hereby
state on solemn affirmation that what is stated in the foregoing application is
true to my own knowledge and I believe the same to be true.
Solemnly declared at________
This________________20__. Sd/-
Sd/-
Before me
Sd/-
Notary Public
Note:-
When an applicant is a body corporate, a copy of the resolution of its

committee or board of directors shall accompany the application.
191
One can understood the purpose of subsection (2) of section 10 by first getting
clarity over THE HOUSING SOCIETY and APARTMENT OWNERS ASSOCIATION
OR CONDOMINUM
Generally the buyers who purchase the premises on an “ownership” basis has
to come together to manage the buidling and for that purpose, one of the
ways is to form a Co-operative society, which is regulated by the Maharashtra
Co-operative Socities Act, 1960.
An alternative to a Co-operative housing society was introduce by the

Maharashtra Apartment Ownership Act, 1970, which provides for the
formation of a Condominium. The buyers of premises in a Condominium are
called Apartment Owners who form an association known as an Association of
Apartment Owners in case fo both that is residential as well as non-residential
premises.
Interestingly, although the condominium is one of the oldest concept it is the

cooperative housing society model which has been even today the most
populated and preferred so far.
Although the basic purpose of both the formation is similar, there are many
difference between a society and condominium.
COOPERATIVE HOUSING SOCIETY CONDOMINIUM

Generally to form a society, 10 persons In case of condominium even one person who
would be required and each of them is to owns the entire buidling can form a
be from a different family who reside in the condominium provided there are at least five
area of operation of the buidling. apartments in the buidling
The title of the land and the buidlgin is In case of condominium the title of each of the
transferred and conveyed to the society, apartment rests with the apartment owner
192
which becomes the owner thereof. Buyers who also has a proportionate undivided
upon the purchase fo flats, become interest in the land on which the building
members of the soceity. stands the common areas and facilities of the
building
A society adopts the Model Bylaws While adopting the bye-laws in a
periodically with the changes if required but condominium, suitable changes can be made
with subsequesnt approval from Deputy so long as the provision of the act are not
Registrar of respective ward. contravened
A society issues certain shares to its This is not so in a condominium of Apartments
members as per the bye-laws and the share or Buildings
certificate becomes an important title deed.
Since the allotment of the premises are
related thereto.
The affairs of the society are managed by The affairs of condominium are managed by
the Managing Committee which is elected the Board of Managers who is elected by the
by the members of the society. The members of the Apartment Owners
managing committee elects a chairman, Association. The Board also Elects a president,
secretary and a treasurer. vice-president, secretary and a treasurer.
Under the model bye-laws a society can In case of condominium, the Bye-laws can be
charge only Rs. 500/- as Transfer Fee with a more flexible and the amount of Transfer fee
maximum of Rs. 25,000/- as a premium. can be provided therein
The Permission of Managing Committee The owner can give his Apartment on lease
including Police verification is required and license basis without the approval of the
Board of Managers.
In a society, every member has one vote, In a Conodminium, every Apartment owner
irrespective of the areas of his premises. has a voting right in proportion to the value of
his premises which is generally as per the area
193
of the Apartment owned by him and which is
defined while forming the Condominum
The disputes are generally referred to the In the case of a Condominum, the court having
Registrar appointed under the act or to a jurisdiction over the area in which the
co-operative court, depending on the Condominum is located, hears the disputes
nature of the dispute
A society can expel its memebr under There is no such provision. However if an
certain extreme circumstances apartment owner fails to comply with the bye-
laws or the rules and regulations either
damages or injuctive relief or both can be
claimed against him
A member can nominate a person in whose No such facility is available in a condominium.
favour shares of the Society should be An apartment can be transferred to a person
transferred upon the member’s death. to whom the Apartment owner bequeaths the
same by his will or to the legal representative
of the Apartment owner’s estate
A significant question here is that why the builders always tend to go for
“Apartment” formation and always try to avoid “Society”. The reason is that
the builders have a lot of vested interest in doing so which are listed below
A. The builder is interested in using the increased FSI which will awared by
the governemnt for that area at any time in future. If the society is
formed then upon the transfer and conveyance of land in favour of the
society, the increased FSI will be owned by the society and the buidler
shall not have any right over ti. But if it is an Apartment then the builder
194
owns that increased FSI and can use it anywhere. Thus the buidler will
keep taking advantage of every increase in FSI throughout in the future.
B. In an apartment, the builder retains the ownership of the open spaces
which are not inclued in the saleable areas. Example, Terrace or any
open parking or stairs space which is not included in the saleable area.
But in case of society, the builder cannot retain any right on any of these
areas and has to hand over everything to the society. The maharashtra
apartment ownership act also provided for the ownership of an
individual apartment in a buidlign and to make such Apartment heritable
and transferable property.
C. Bye-laws and rules of society are binding on all the residents and
nobody can act as per his or her whims. Hence if the society decided to
ban an objectionable commercial activities in the flats such a noise
making music classes or using the flat for catering or courier activities
etc. or not to rent out to bachelors etc. then all the resident have to
abide by it. But if it is an Apartment, then owners can voilate the
Apartment Rules and the Apartment Body can just file a case in the Civil
Court. However while the society disputes are resolved in a separate
court. i.e. cooperative court dealing with society matters and hence they
are fast resovled whereas the apartment owners have to be taken to the
normal civil court and hence they typically take years and decades to
resolve.
D. When the building contemplates redevelopment after 25-30 years the
society’s decision will be final and hence the society memebrs will have
negotiation power with the builder at that time. But if in case of an
apartment, the consent of every Apartment-Owner is requred and hence
it goes into an endless delay due to lack of common decision acceptable
195
to everybody. Thus, while the decisions are taken on a majority basis in
society, the apartment goes with rule of acceptable by everbody. So if
the builder has retained even one flat in an apartment, he will play a
veto card in his favour at the time of redevelopment.
The supreme court in the case of Zoroastrian Co-operative versus district

registrar cooperative – appeal (civil) 1551 of 2000 on 15th april 2005 wherein
regarding the rights of an individual memebr, it was stated that,
Once a person becomes a member of the cooperative society, he loses his

individuality qua the society and he has no independents rights excep those
given to him by the Statute and the Bye-laws. However in case of the
Apartment, the decision taking always rests with each apartment owner.
In case of conveyance of the apartments, all transfers of apartments by the

sole owner or all the owners of the property (being an owner of owners who
have or have executed and registered a declaration in form “A” to an
apartment owner and subsequent transfers from an apartment owners to his
transferee shall be by deed of apartment.
Hence it is recommended to impress upon the Developers or promoter to form

a co-operative housing society only under the provision of MOFA 1963.
SECTION 11
The other matter that comes under the jurisdiction of competent authority is
the matter covered under section 11 which mandates that the promoter under
the act have take necessary steps to complete the title and convey to the
organisation of people who takes the flat and registered as the coooperative
society or company or the association of flat taker/ apartment owners, his
right , title, interest in the land and building and execute all relevant
196
documents therefor in accordance with the agreement executed under section
4 and if no period for the execution of the conveyance is agreed upon, he shall
execute the conveyance within the prescribed period and also deliver all
documents of title relating to the property which may be in his possession or
power.
Subsection (2) of the same section provides that the promoter has to file the
copy of conveyance under subsection (1) to the competent authority
Subsection (3) is the consequential provision in the nature as it talks about the
promoter failure to execute the conveyance in favour of the Cooperative
society formed under section 10 or, as the case may be, the Company or the
association of apartment owners, as provided by sub-section (1). In such
circumstances the members of such cooperative society/ company/ apartment
owners may, make an application, in writing, to the concerned Competent
Authority accompanied by the true copies of the registered agreements for
sale, executed with the promoter by each individual member of the society or
the Company or the association, who have purchased the flats and all other
relevant documents (including the occupation certificate, if any), for issuing a
certificate that such society, or as the case may be, Company or association, is
entitled to have an unilateral deemed conveyance, executed in their favour
and to have it registered.
Subsection (4) is the procedural subsection it mandates that the competent

authority to issue a certificate to the Sub-Registrar or any other appropriate
Registeration Officer under the Registeration Act, 1908, certifying that it is a fit
case for enforcing unilateral execution, of conveyance deed conveying the
right, title and interest of the promoter in the land and building in favour of
the applicant, as deemed conveyance. However prior to issuing such certificate
197
the competent authority has to make an enquiry and verify the authenticity of
the submitted before it and give the promoter a reasonable opportunity of
being heard. He may issue such certificate within six months.
Subsection (5) the sub registrar on reciept of the certificate issued by the
competent authority has to issue summons to the promoter to show cause
why such unilateral instruments shall not be registered as deemed conveyance
and after giving the promoter and the applicants a reasonable opportunity of
being heard, may on being satisfied that it was fit case for unilateral
conveyance, register that instrument as, ' deemed conveyance '.
The application under section 11 required to be in form VIII as provided under

MOFA Rules 1964 and shall affix the court fee stamp of Rs. 2000/-
The application must accompained the below documents:
(i) the registered Agreement for sale entered into with the
promoter/opponent party;
(ii) 7/12 Extract and Village form No.6 (Mutation entries);
(iii) Property card
(iv) Location Plan
(v) City survey plan or survey plan from the revenue department.
(vi) Layout Plot plan approved by the local authority
(vii) Architect certificate about the entitlement of undivided interest in
the entire Layout Plot,
(viii) common areas and the facilities by each of the entity or the structure
constructed or to be
(ix) constructed on such Layout Plot;
(x) Latest Title and Search Report for last 30 years from an advocate;
(xi) Non-Agricultural Order;
198
(xii) Certificate under Urban Land Ceiling Act, 1976;
(xiii) Building/ Structure Plan approved by the appropriate authority;
(xiv) Commencement Certificate;
(xv) Completion Certificate;
(xvi) Occupation Certificate;
(xvii) List of Flat Purchasers;
(xviii) Proof of payment of Stamp Duty;
(xix) Proof of Registration, etc.;
(xx) Development agreement or power of attorney or agreement for sale
executed by the landlord with the promoter for development or for
transferring the right, title and the interest in the land in favour of
the promoter;
(xxi) Any other land or building related documents papers in support of
the application;
(xxii) Legal notices sent to the Promoter and other interested parties to
execute the conveyance deed or declaration as provided under
Maharashtra Apartments Act, 1970 in favour of the applicant/s;
(xxiii) Draft conveyance deed / Declaration proposed to be executed in
favour of the applicant.
Model form of application under section 11 of the Act to issue a certificate of

fit in case of Unilateral Conveyance or registration of Declaration in favour of
the applicant.
Application u/s 11 of Maharashtra Ownership Flats (Regulation of the

Promotion of construction, Sale, Management and Transfer) Act, 1963
Application No.____________ of 20__
199
Applicant/s
Versus
THE APPLICANT/S ABOVE NAMED STATE AS FOLLOWS:-
1. The Applicant is a Co-operative Housing Society/ Apex Body/ Federation /

member of a co- operative Housing Society duly registered under the
Maharashtra Co-operative Societies Act / member of the company or member
of Apex Body /Federation / Apartment/ Flat Purchaser having registration
No.______________________________________ having its registered office
at Plot
No.__________________(address)____________________________________
_____________ ______ hereinafter referred to as the “said society/ Company/
Apex Body/ Federation/ proposed Association/Condominium to submitted
under Maharashtra Apartment Ownership Act, 1970” for the sake of brevity.
2. The Society /Company/ Apex Body/ Federation/ Proposed Association /

Condominium is in possession of a Plot of land bearing Survey No._______,
Hissa No.________, City Survey No._____ admeasuring __________sq.mtrs,
hereinafter described as the suit premises. Hereto annexed and marked Exhibit
–―”A” is the copy of Registration Certificate of the said society/company/
Apex Body/ Federation.
3. The defendant No.1 is the Construction Company duly registered as a

Private Limited Company/Partnership Firm under Indian
Companies/Partnership Act. The Defendant No.2 is the Executive
Director/Principal Partner/ legal heir of builder and the Defendant No.3 is the
land owner / their legal heirs of the suit premises and other defendants are the
200
financier or the earlier developer or interested in the suit premises
as_________. (for each defendant some proof for making him/her defend
should be given as an evidence.)
4. The Applicant states that the building of the Society consists of _____ wings
/ _________ building known as _________. (give the description of each
building like the number of flats/ shops / garage / row houses etc constructed
on the suit premises. A list of flats, its area, name of the member also should
be annexed) Hereto annexed and marked Ex. ― “A-1” is the copy of Rough
Sketch of the building at
___________________________________________Mumbai 4000__., The
approved plan duly certified by the local authority or appropriate building

approval authority should be enclosed as an exhibit. (In case, the same is not
available a letter to this effect from Local Authority / plan approval authority
should be obtained and a sketch made of the building or the sale plan attached
to agreement to be attached.)
5. The Applicant state that the Defendant No.2 and their agents entered into
agreement for sale of flats/ shops with the individual purchasers of the flat/
shop and entered into agreement for sale of the said flat/shop as required
under section 4 of the Maharashtra Ownership Flats Act, 1963 and all such
agreements are duly stamped as required under the Bombay Stamp Act, 1958
and also duly registered as required under the Registration Act, 1908. The
defendant No. 3 and their agents have agreed to transfer and have agreed to
convey the suit premises with the entire building constructed there on (
hereinafter referred to as the said property) to the duly registered society
within four months of formation of the society. The copy of the said agreement
for sale executed with one of the flat/ shop purchaser MR/
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Mrs_________________with the defendant No 2 is enclosed herewith and
marked as exhibit No. _______. And a list of present members with the details
of flat No., area, stamp duty paid, registration No, Registration fees paid etc is
given in Exhibit No._______.
6. The Applicant states that the Applicant had written the 1st letter dated
__________ and final notice dated ________to the Chief Promoter/ Builder /
developer / defendant Nos.1, 2 and 3 and bringing to his notice that he/ she /
they has/ have failed to convey the land and building in favour of the society
within 4 months of registration of the society as provided under section
11 of Maharashtra Ownership Flats Act, 1963 and the Rules hereunder. Hereto
annexed and marked Ex- ― “___” is the copy of the said letter/ Notices.)
7. The applicant further states that the Applicant is running their business and
management by holding regular meeting of the Managing Committee and
General Body and has requested the defendants and their agents to execute a
conveyance in favour of the Society/ Company so that they can get the title to
the property taxes transferred in their name. The Defendants have failed and
neglected to execute a conveyance without reasonable cause with a malafide
intention to wrongfully withholding the property and the defendants have not
complied with various requests made applicant so far. (In case of Association/
Condominium to be submitted under Maharashtra Apartment Act, 1970 as per
the desire of flat purchasers, the fact should be mentioned and the neglect of
the promoter in complying with the provisions of the law should be brought
out here)
8. The Applicant states that the defendant No.1 to ___, their agents and
servants are denying or interested in denying the right, title and interest in the
202
said land and the building in favour of the Applicant which they are legally
entitled to have and enjoy as provided under the Act and the Rules.
9. The Applicant is, therefore, entitled to have a certificate issued by this

competent authority for unilateral conveyance in respect of the suit premises
in favour of the applicant society/ Company or get the direction for the land
and the building submitted under Maharashtra Apartment Ownership Act,
1970 by registering the Declaration as per the latest amendment done in
MOFA, 1963.
10. Accordingly this competent authority be pleased to issue a certificate of

entitlement of unilateral conveyance of land admeasuring ______sq. metres as
specifically set out in (the property registration card) the copy of the
agreement dated ___________along with building situated at Plot
No._________, bearing Survey No.______HissaNo.____at________________
gunta,______________ Mumbai__________ in favour of the applicant as the
same falls within jurisdiction of this Hon’ble Competent Authority. (In case the
building is in a Layout Plot, the entire description of the Layout Plot such as
area, common areas and the facilities, built up area of each building/ structure
etc and how the conveyance of the Layout Plot, common areas and the
facilities required to be conveyed to the applicant or other interested entities
or persons in the Layout Plot or as a Apex Body or the Federation or as
Declaration. The documentary evidence like Layout Plot approved by the
planning authority / local authority / Approved Building plan by the
appropriate authority, Architect Certificate etc as provided in the Rules be
annexed as exhibit).
11. The Applicant will rely upon a list of documents which is annexed hereto.
12. The Applicant therefore pray that:-
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(a) this Hon’ble Competent Authority be pleased to grant a certificate of
unilateral conveyance / Declaration in respect of suit premises along with
structure standing thereon in favour of the applicant against the Defendants
No.1, 2 and 3 and their agents specifically who have failed to comply with
section 11 of the Maharashtra Ownership Flat Act 1963 regarding conveyance
of land and building in favour of the society.
(b) This Hon’ble Competent Authority be pleased to appoint an authorized of

officer to facilitate execution and registration of conveyance deed or
declaration in favour of the applicant/ appropriate legal body on behalf and in
place of opponents who have failed to discharge their legal obligations
provided under the Act and the Rules.
(c) For costs of the application t be provided.
(d) For such other reliefs as this Hon’ble Competent authority may deem fit.
Advocate for Applicant Applicant
VERIFICATION
I, SHRI_________________________________ member of the Applicant and

authorized representative above named, residing at
_____________floor______________________________Co-operative Housing
Society Ltd.
__________________________________________________________ do
hereby state on solemn affirmation that what is stated in the foregoing
application is true to my own knowledge and I believe the same to be true.
Solemnly declared at_________
This________________20__.
204
Sd/-
Sd/-
Before me
Sd/-
Notary Public
AGREEMENT FOR SALE UNDER MOFA 1963
The Agreement for sale is considered to be the foremost significant document

that governs the sale of the property. It contains the agreed upon terms &
conditions between seller and buyer for the sale of property and is legally
binding on both the parties. The provision of agreement for sale under MOFA
1963 can be first found under section 4 of the act.
The section mandates the important duty upon the promoter to with regard to
the agreement for sale. The section specifies that it is compulsory for the
promoter to have a written agreement for sale before he could accept the
payment towards the sale of the flat from the flat taker/ purchaser the section
also specifies that the amount taken as an advance payment or deposit shall
not be more than 20% of the of the sale price. Not only the section mandates
the promoter to enter into written agreement before accepting the advance
payment or deposite as above. It made it complusory to register such
agreement under the Registration Act, 1908. Subsection (1A) of the section
added via amendement in 1986 contains the particulars under clause (a)
likewise clause (b) contains the document that shall be attached to the
agreement for sale.
205
Particulars contained under clause (a) are listed below:
(i) if the building is to be constructed, the liability of the promoter to

construct it according to the plans and specifications approved by the
local authority where such approval is required under any law for the
time being in force
(ii) the date by which the possession of the flat is to be handed over to
the purchaser
(iii) the extent of the carpet area of the flat including the area of the
balconies which should be shown separately
(iv) the price of the flat including the proportionate price of the common
areas and facilities which should be shown separately, to be paid by
the purchaser of flat; and the intervals at which instalments thereof
may be paid (u) the precise nature of organisation to be constituted
of the persons who have taken or are to take the flats
(v) the nature, extent and description of limited common areas and
facilities
(vi) the nature, extent and description of limited common areas and
facilities, if any
(vii) percentage of undivided interest in the common areas and facilities
appertaining to the flat agreed to be sold
(viii) statement of the use of which the flat is intended and restriction of
its use, if any
(ix) percentage of undivided interests in the limited common areas and
facilities, if any, appertaining to the flat agreed to be sold
clause (b) of subsection (1A) listed out certain documents that should be
attached along with the agreement for sale are given below:
206
(i) the cerficate by an attorney at law or advocate under clause (a) of
sub-section (2) of section 3 :
(ii) Property Card or extract of village Forms VI or VII and XII or any other
relevant revenue record showing the nature of the title of the
promoter to the land on which the flats are constructed or are to be
constructed
(iii) the plans and specifications of the flat as approved by the concerned
local authority
The process of registration of agreement relevant section of the Registration

Act, 1908
The documents are registered for the purpose of conservation of evidence,

assurance of title, publicity of documents and prevention of fraud. Also the
registration helps an intending purchaser to know if the title deeds of a
particular property have been deposited with any person or a finacial
institution for the purpose of obtaining an advance against the security of that
property.
Section 17 of the Registration Act, 1908 lays down different categories of

documents for which registration is compulsory. The documents relating to
the following transactions of immovable property are required to be
compulsorily registered.
a) Instruments of gift of immovable property

b) Lease of immovable property from year to year or for any term
exceeding one year or reserving yearly rent.
c) Instruments which creates or executes any right or title to or in an
immovable property of value more than one hundred rupees.
207
Where to register: Section 28 of the registration act, 1908 states that all
documents of which registration is compulsory if it relates to an immovable
property as well as few documents of which registration is optional should
normally be presented for registration in the office of sub registrar within
whose sub-district the whole or some portion of the property to which the
document relates is situated.
Procedure of registration: for registration the orginal document which should

be types/ printed on one side only along with one photocopy of the original
have to be submitted to the registering officer. The copy is required to be
photocopied only on one side of the paper. The registration procedure also
requires the presence of two witnesses and the payment of the appropriate
registration fees. On completion of the procedure, a receipt bearing a distinct
serial number is issue.
Fees for registration: The state government has been empowered to fix the
fees for registration of the documents.
The registration fees at present fixed for registering documents relating to

property transactions is 1% of the true market value whichever is less or
consideration of the document but subject to a maximum limit of Rs. 30,000/- .
the registration fee for the following immovable property transaction is
levyable on the true market value of property on which stamp duty is charged.
The following transactions are as under:
I. Conveyance
II. Exchange
III. Partition
IV. Transfer of lease by way of assignment
208
V. Sale
VI. Settlement
VII. Power of attorney given for consideration
VIII. Authorizing the attorney to sell the property
Who can be present for the registration purpose: Under section 32 of the
Registration Act, 1908 deals with provision relating to the presentign of
documents for registration by a person. Subject to certain exceptions, every
document which is to be registered under the provision of the act should be
presented at the proper registration office by:
I. The concerned person himself/herself or

II. The representative or the agent of such a person duly authorized in
manner as is stated in section 33 of the registratio nact 1908
As it must be clear by now the agreement for sale under MOFA 1963 is
compulsory before there is transaction of sum with regard to purchase of flat
under the act also the said agreement compulsorily registered. The section 4A
of the act provides for the effect of non-registration of the agreement which
otherwise requires a registration.
The provison contemplated under section 4A maintains that the agreeement

for sale remains unregistered after the commencement of the Maharashtra
Ownership Flats (Regulation of the promotion of construction, sale,
Management and transfer) (Amendment and Validating Provisions) Act, 1983
then it may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1963, or as evidence of
part performance of a contract for the purposes of section 53A of the Transfer
of Property Act, 1882, or as evidence of any collateral transaction not required
to be effected by registered instrument.
209
In the discussion of relevant sections of MOFA the significance of the provision
of section 8 surely cannot be undermined. The said section comes in the
nature of remedy availble for the flat taker against mischief done by the
promoter. The gist of the section 8 is that is maintained in the event of
promoter’s failure to give possession as per the date specified under the
agreement for sale or any further dater agreed between parties , and if he fails
to give possession even three months thereafter he shall be liable whenever
there is demand to refund the amount already received by him with repsect to
such flat along with the simple interest of 9% per annum from the date he
received the sums till the date the amounts and interest thereon is refunded.
Likewise section 9 of the act prohibits the promoter to sell any of flat,
mortgage, or create a charge on flat on the land without the consent of the
person with whome he had entered into an agreement of sale with the same
flat. The section further maintains if there is mortgage, selling or creation of
charge done wihtout previous consent of the flat taker then it wont have any
affect to the rights and interest of scuh persons.
The penalty provision under MOFA 1963 has been provided under section 13,
as a flat purchaser it will essential to know as to what remedial or punishable
provision provided under MOFA 1963 so as to make one aware of his duty
regarding activities under this act.
Punishment for contravention of provision of section 3,4, 5 10 and 11:
A promoter’s actions found to be in contravention to the provision of section

3,4,5,10 and 11 shall make him on conviction punishbale with an imprisonment
for a term extending to 3 years or with fine or both . [section 13 (1)]
Punishment for contravention of provision of section 5:
210
A promoter committing criminal breach of trust with respect to section 5 of
the act shall be on conviction be punished with an imprisonment for a term
extending to 3 years or with fine or both . [section 13 (2)]
Punishement for contranvention of provision for which no penalty is

mentioned: If there is contravention of the provision of this act for which no
penalty is given the promoter guilty of such be punished on conviction with an
imprisonment for term not less than six month but may extend to one year or
with fine that shall not be less than 10000/- but may extend to 15000/- or with
both. [Section 12(3)]
Punishment for offence other than offence under section 12A: When any
promoter is convicted of any offence under this Act, except offence under
section 12A, such promoter shall be disqualified from undertaking construction
of flats for a period of five years from the date of such conviction. However,
such disqualification shall not affect the permission for construction of flats
already granted before incurring such disqualification and shall also not debar
the promoter from seeking or being granted any additional requisite
permissions which may be required from the concerned local authorities for
completion of constructions already undertaken by him. [section 13(4)]
Duty of competent authority and local authority once the promoter found
guilty of the offence under this act.
The competent authority on the event of the promoter convicted under this
act shall forward the name of the convicted promoter to the local authorities
under his jurisdiction, with a direction that such promoter shall not be granted
permission under the relevant law for undertaking any construction of flats
during the period of such disqualification, specifically mentioning such period.
[Section 13(5)]
211
Further the local authorites on the event of receiving the intimation as under
subsection (5) shall not grant such promoter any permission or licence under
the relevant law for construction of flats for a period for which the promoter is
so disqualified. [Section 13(6)]
Provision of Application under section 13(4) and 13(5) under MOFA Rules,
1964
The rule RULE 11(8) of the MOFA Rules 1964 maintained that Every application
filed under section 13(4) and 13(5) shall be in form IX and shall affix court fees
stamp of Rs.500/- and is to be accompanied by certified copies of the order
passed by the appropriate authority or the court convicting the promoter of
any offence under this Act.
Format of application under section 13(4) and 13(5)
Model Form of application under section 13(4) and 13(5) of the Act for the
purpose of directing the local authority not to grant permission to the
promoter convicted under the offence committed under the Act for a
specified period.
Application u/s 13(4) and 13(5) of Maharashtra Ownership Flats (Regulation of

the Promotion of construction, Sale, Management and Transfer) Act, 1963
Application No.____________ of 20___
Applicant/s
Versus
Promoter/s Opponent/s applicant/s state as under

212
1. The Applicant/s is/are the purchaser/s of flat/shop / Unit No________ in
building No.____________which is known as____________ constructed on
plot No.______ bearing Survey No._________ village________, District
:________.(hereinafter referred to as the said building).
2. The said building has been constructed by opponent No____ and since the
execution of the agreement with applicant, the opponent has defaulted and
not complied with the provisions of Maharashtra Ownership Flats (Regulation
of Promotion of Construction, Sale, Management and Transfer) Act, 1963
(hereinafter referred to as the said Act).
3. Being a promoter as provide under the Act, a case was filed against the
opponent/s by the applicant.
4. The applicant is pleased to submit before the competent Authority that all
/the Opponent No____ has/ have been convicted by of an offence under the
said Act and necessary order by the competent court has been passed against
them. (hereinafter referred to as the said order)
5. The copy of the said order of the competent court is annexed hereto as
exhibit No.___________ (Complete description of the various offences and the
conviction by the court should be mentioned here by the applicant.)
6. The copy of the agreement executed with the Promoter / Opponent is being
annexed hereto as exhibit No._______
7. The applicant/s state/s that the details demanded by the applicant is legal
and filed with bonafide intention and there is no lawful cause on the part of
the Opponent / Promoter to deny the applicant’s demand and hence the
application should be decided favourably.
213
8. The cause of action has arisen in the jurisdiction of the Competent
authority/ District Deputy
Registrar, _________, Co-operative societies, District:____________ and the

application has been Properly filed.
9. The applicant prays that:-
(a) The Honourable Court be pleased to direct the local authority or the
appropriate building construction approval authority directing not to grant
permission to the promoter who has been convicted by the appropriate court
under the offence committed under the Act for a period of 5 years
commencing from ________.
(b) The Promoter / Opponent should be directed to provide for costs of the
application to be provided.
(c) For such other relief as this Hon’ble Competent Authority may deem fit.
In support of the above relief, I/ We enclose documents and papers as per the
list attached hereto.
Date:-
Place: –
Applicants’ Signature
VERIFICATION

Promoter of the proposed society/ flat purchaser of the building known as
______ and authorized representative above named, residing at
_____________floor______________________________._________________
___________________________________do hereby state on solemn
214
affirmation that what is stated in the foregoing application is true to my own
knowledge and I believe the same to be true.
Solemnly declared at__________
This________________20__.
Sd/-
Sd/-
Before me
Sd/-
Notary Public
Now that we have understood the penal provision contemplated under the act
the obvious question arise as to will pass the punishment order under the act,
the answer to all such queries can be found under section 13A of the act
empowers the Magistrate being the Metropolitan Magistrate or the Judicial
Magistrate of the First Class to pass sentence of imprisonment and fine. The
power construed upon the such magistrate under this act is deemed to be
excess of what has already provided via section 27 of the criminal procedure
code, 1973.
To conclude it is to be understood that magistrate will have jurisdiction to

pronounce decision/ sentence upon the matters contemplated under all
sections other than section 5,10,11 as it is the competent authority who will
have jurisdiction over the matter under said sections.
To prove the weightage of the power entrusted upon the competent authority
via this act the section 13B of the same provides that the competent authority
215
be deemed to be the public servant within menaing of section 21 of the Indian
penal code, 1860. Likewise section 13C of the act, maintains that the
proceeding before such competent authority deemed to be the judicial
proceedings further the section 13 D maintained that the competent authority
be deemed to be civil court for the purpose of section 345 and 347 of the CRPC
1973. Section 13 E bars any suit or legal proceeding against the competent
authority for the act done in good faith.
The overall reading of the provision contained under MOFA 1963 and MOFA
Rules 1964 it can be concluded that it is an important piece of Legislation to
curb the malpractices going on in the Real Estate Sector as it aims to tackle
various problems faced by the Flat buyers or owners. The Act is yet not
repealed, and it It aims to reach the heart of the problems as the Real Estate
industry is plagued.
216
THE CONSUMER PROTECTION ACT, 2019
On July 20th, 2020, the new Consumer Protection Act, 2019 came into force in
India, replacing the previous enactment of 1986. The new Act overhauls the
administration and settlement of consumer disputes in India. It provides for
strict penalties, including jail terms for adulteration and for misleading
advertisements. More importantly, it now prescribes rules for the sale of goods
through e-commerce. The consumer is now truly the king!
How does the Consumer Protection Act, 2019 protect the interest of home
buyers?
Unfair contract
The new Consumer Protection Act, 2019 has introduced the concept of 'unfair
contract' by way of definition in Section 2 (46) which includes those contracts,
which favour the manufacturers or service providers and are against the interest
of consumers such as contracts requiring manifestly excessive security deposits
to be given by a consumer for the performance of contractual obligations,
imposing any penalty on the consumer for a breach of the contract, which is
wholly disproportionate to the loss occurred due to such breach to the other
party to the contract, refusing to accept early repayment of debts on payment of
applicable penalty, entitlement of a party to the contract to terminate such
contract unilaterally, without reasonable cause, permitting or has the effect of
permitting one party to assign the contract to the detriment of the other party
who is a consumer, without his consent; and imposing on the consumer any
unreasonable charge, obligation or condition which puts such a consumer to any
disadvantage.
Unfair consumer contracts such as there have now been covered under this Act,
and a complaint in this regard can now be filed by a consumer. This would help
to keep a check on many businesses, including real estate developers who many
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times mandatorily require helpless consumers to sign such unfair contracts and
accept their standard terms before providing services.
Product liability
Another significant introduction in the 2019 Act is the concept of 'Product

Liability' which covers within its ambit the product manufacturer, product
service provider and product seller, for any claim for compensation. The term
'product liability' has been defined by this Act as the duty of a product seller or
product manufacturer, of any service or product, related to the product to
compensate for any harm caused to a consumer by such defective product
manufactured or sold or by a deficiency in services relating to the product.
However, certain exceptions have been provided under the new Act from
liability claims, such as, that the product seller will not be liable where the
product has been misused, altered, or modified.
Territorial jurisdiction
The new Consumer Protection Act now provides an added advantage to

consumers by providing for the filing of complaints where the complainant
resides or personally works for gain as against the earlier Act which only
provided for filing of complaint where the opposite party resided or carried on
business. The amended provision would help in removing difficulties faced by
consumers in seeking redressal of their grievances against businesses who may
not have an office or branch in their geographical location.
Pecuniary jurisdiction
The new Act also provides for a change in the pecuniary jurisdiction for the
District, State and National Commissions, respectively. The pecuniary limit for
the District Consumer Disputes Redressal Commission has been increased to up
to Rs 1 Crore, whereas in the earlier Act, it was up to Rs 20 Lakh; for State
Consumer Disputes Redressal Commission it has been increased to up to Rs 10
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Crores from up to Rs 1 Crore earlier; and for the National Consumer Disputes
Redressal Commission, the pecuniary jurisdiction has been increased to over
and above Rs 10 Crores as against Rs 1 Crore in the previous Act.
In addition, the 2019 Act has changed the manner for determining the pecuniary
jurisdiction for filing the complaint. Now the pecuniary jurisdiction will be
determined based on the value of goods or services paid as consideration as
against the earlier Act wherein, the pecuniary jurisdiction was determined based
on the value of goods and services as well as compensation claimed. This would
greatly help in doing away with the practice of inflating the compensation
claimed so as to bring the complaint within the jurisdiction of State or National
Commission by the complaining consumers.
False and misleading advertisements
The Act has defined the term 'misleading advertisement' concerning any product
or service as, 'an advertisement which falsely describes the product or service
which gives a false guarantee and is likely to mislead the consumer as to the
substance, nature, quality or quantity of such product or service and conveys an
express or implied representation which, if made by the seller or manufacturer
or service provider, would comprise an unfair trade practice and would also
consist of information which is concealed deliberately". Strict penalties for false
and misleading advertisements have been provided in the new Act.
Mediation/settlement is now a possibility
The new Act goes on to introduce a chapter on mediation as an alternate dispute

resolution mechanism, in order to resolve a consumer dispute faster without
having to approach the Commissions with the option of resolving the dispute
either in whole or in parts.
Thus, in the event that the mediation is successful, the terms of such agreement
shall be reduced into writing accordingly and put up before the Commission
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adjudicating upon the controversy and where the consumer dispute is settled
only in part, the Commission, shall record the settlement of the issues which
have been settled, and shall continue to hear the remaining issues involved. In
the event the mediation is not successful, the Commission shall within seven
days of the receipt of the report, pass a suitable order and shall proceed to
dispose of the matter accordingly.
Central Consumer Protection Authority (CCPA)
The new Act introduces the establishment of a Central Consumer Protection

Authority (CCPA) by the Central Government. The CCPA will be a regulatory
authority and shall be empowered to impose penalties, recall goods, cause the
withdrawal of services, provide refunds and investigate matters. It shall also be
responsible for protecting the rights of consumers as a class and shall further
ensure that no person engages in unfair trade practices and that no misleading
advertisements are made. The Act also provides for establishing an
investigation wing which shall be headed by the Director-General who shall be
appointed by the Central Government for conducting investigations as per the
order of the CCPA.
E-filing of complaints and hearing through video conference
This is a unique provision introduced in the new Act as it facilitates e-filing and
provides that the consumer can also seek video conference hearing of the case
by the Commission, which is a futuristic approach to adjudication of matters
definitely aimed at helping consumers.
Decision only on merits
The new Act has done away with the discretionary power of the Commission to
dismiss the case in default and mandates that the complaint shall be decided on
merits only if the complainant fails to appear on the date of hearing.
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Second appeal and review
Lastly, something extremely crucial in the process of dispensation of justice to a

consumer, some part of which was missing in the Consumer Protection Act of
1986.
The new Act confers the power of a second appeal upon the National Consumer
Disputes Redressal Commission which has been provided under Section 51 (3),
subject of course to the determination of a substantial question of law involved
in the matter. And, while retaining the power of revision to be exercised by the
National Commission, the Act seeks to introduce the power of revision in the
State Commission. The power of review has been conferred upon the District
Commission, State Commission as well as the National Commission under
Sections 40, 50 and 60 of the Act, respectively.
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THE INFORMATION TECHNOLOGY ACT, 2000
Under the provisions of the Information Technology Act, 2000 particularly

Section 10-A, an electronic contract is valid and enforceable.
The only essential requirement to validate an electronic contract is compliance

with the necessary pre-requisites provided under the Indian Contract Act, 1872.
Also, the courts in India give due regard to electronic contracts under the
provisions of the Indian Evidence Act, 1872.
The provisions of the Information Technology Act, 2000 (IT Act) give legal
recognition to an electronic (E -Contract) particularly section 10-A of the IT
Act which states:
"Section 10-A: Validity of contracts formed through electronic means. -
Where in a contract formation, the communication of proposals, the acceptance

of proposals, the revocation of proposals and acceptances, as the case may be,
are expressed in electronic form or by means of an electronic record, such
contract shall not be deemed to be unenforceable solely on the ground that such
electronic form or means was used for that purpose."
The above provision was introduced by the Information Technology

(Amendment Act), 2008 after recognizing the growing dependence on
electronic means to reach commercial agreements. This applies where contract
formation, communication of the proposal and acceptance is carried out
electronically.
Unless an inference can be drawn from the facts, that the parties intend to be
bound only when a formal agreement has been executed, the validity of an
agreement would not be affected by its lack of formality. Hence, once the
parties are at consensus-ad-idem, then the formal execution of the contract is
secondary. Therefore, once an offer is accepted through modes of
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communication such as e-mail, internet and fax then a valid contract is formed
unless otherwise specifically provided by law in force in India; such as the
Registration Act, 1908, the various Stamp Acts etc. Also, Section 1(4) of the IT
Act lists out the instruments to which the IT Act, does not apply, which are as
follows:
1. Negotiable Instruments;
2. Powers of Attorney;
3. Trust deeds;
4. Wills;
5. Contracts for Sale or Transfer of Immovable Property
A TRIPARTITE AGREEMENT
Generally, all agreements have two parties but there are some occasions in
which a tripartite agreement becomes necessary. A tripartite agreement is the
principal legal document involving the buyer, bank, and seller. It is an essential
document when a buyer prefers a home loan to buy a house in an under-
construction project. ―Tripartite agreements have been placed to support buyers
with obtaining loans for properties against a planned purchase of a property.
For example
If ‗A‘ promises to ‗B‘ to sell his land for Rs 60,00,000 and ‗B‘ accepts to buy
for the said amount taking a home loan.
Here Bank has become the 3rd party and ‗A‘ ‗B‘ and ‗C‘ agreed.
What Does the Tripartite Agreement State?
 The agreement should refer to the perspective of the three parties – the
borrower, lender, and developer.
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 The developer is responsible for constructing the building according to
the approval, specifications, and map approved by the local bodies in the
agreement.
 It must be stated that the developer has not sold or entered into any
agreement with the other party.
 The agreement states that the developer is claiming to have a clear title to
the land.
 A tripartite agreement should specify the sale price, date of possession,

stages of construction, loan repayment schedule, the interest rate of home
loan, common area amenities, penalty details, and progress of
construction.
How Do Tripartite Agreements Work?
Tripartite agreements have been established to help buyers with obtaining

finance from banks against a plan to buy a home from a developer. The
agreement clarifies the status of all parties involved in real estate transactions
and monitors all documents. It lists the rights and remedies from the borrower,
lender, and builder. It details the stages or phases of construction, the final sale
price, agreed on common area amenities, date of possession, Equal monthly
installment (EMI) details, interest rate, penalty details if the booking is
canceled, and payment schedule for the loan. It also specifies the legal process
known as subordination, which defines to whom, how, and when various
agreements in the property are transferred between the parties. This should
indicate to the developer or seller that the property has a clear title. Besides, it
should also be mentioned that the developer has not entered into any new
agreement for the sale property with any other party. The tripartite agreement
should include the developer‘s liabilities to construct the building according to
plans and specifications approved by the local authority.
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Benefits Of Making A Third Party A Party In The Form Of Agreement
 The third-party who is indirectly related to the agreement can‘t take the
stand that he is unaware of any such transaction.
 The legal heirs and successors etc. of the third party also can‘t challenge
the said transaction.
 Banks and other financial institutions are always ready for loan
preferment when they are convinced about the genuineness of the
transaction.
 It also implies that there is no arrear payable by the seller to the third
party.
Circumstances Where Tripartite Agreement Is Useful
1. At the time of selling the flat and the society is a registered society, then a
tripartite agreement between the buyer, seller, and society becomes
necessary.
2. If a flat is bought from a builder and till the time of resale society is not
formed, a tripartite agreement between the buyer, seller, and the builder is
required to be made at that time.
3. If there is any encroachment, charge, etc. on any property, such as house,

land, farm, etc., then a tripartite agreement is necessary.
4. When a registered society is made a third party to an agreement to buy

and sell a flat happens, it confirms the transaction and means that the
society has no objection to transfer the flat in the name of the buyer.
5. Similarly, if a builder is made a third party, it is the responsibility of the

builder to make a new buyer, a member of the society, or an apartment.
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SOLUTIONS PROVIDED UNDER THE REAL ESTATE (REGULATION
AND DEVELOPMENT) ACT, 2016
1. Registration:
The act mandates the promoter to register the real estate project and disclose the
documents relating to brief details of his enterprise, projects, an authenticated
copy of the approvals and commencement certificate, the sanctioned plan,
layout plan and specifications of the proposed project or the phase thereof, and
the whole project as sanctioned by the competent authority, the plan of
development works, location details of the project, proforma of the allotment
letter, agreement for sale, and the conveyance deed proposed to be signed with
the allottees, the number, type, and the carpet area of the units, details of real
estate agents, contractors, architect, structural engineer and other people
associated with the development of a project, an affidavit confirming legal title
to the land, that the land is free from all encumbrances, due date of
completion, separate account, and other prescribed documents by the state
authority. If the same is not done by the promoter, the aggrieved allottee can file
a complaint under section 4 of the Act. The penalty can also be imposed on such
a promoter under sections 60 and 61 of the Act.
2. Advertisement:
The The act mandates the promoter to register the real estate project before
advertising, marketing, booking, selling or offer for selling, or inviting persons
to purchase in any manner the unregistered unit in an ongoing the project, the
allottee can file a complaint about a violation of Section 3 of the Act. The
penalty can also be imposed on the promoter under section 59 and 61 of the Act.
3. Obtaining insurance and other documents:
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The promoter has to obtain and thereafter transfer the insurance documents and
other documents like title documents, construction documents, etc to the
allottee. It is also the promoter‘s responsibility to pay the premium and
charges in respect of such documents. If the promoter does not obtain or transfer
or pay for such documents to the allottee, the aggrieved allottee may file a
complaint under section 16 and 17(2) of the Act.
4. Advance amount:
Executing a written agreement for the sale is extremely pertinent and before
such an agreement for sale is executed between the promoter and the allottee,
the promoter cannot accept more than 10% of the total sale consideration as
advance money. If a sum of more than 10% of total sale consideration is taken
from the allottee, the aggrieved allottee can file a complaint about a violation of
section 13.
5. Structural change:
The promoter is obligated to follow the sanctioned plans, layout plans and
specifications and the nature of the fixtures, fittings, amenities and common
areas, of the units as approved by the competent authorities. Any
addition/alteration in the same can only be made by previous consent of the
allottee or two-third of the allottees and the concerned authority. Minor
additions/alterations, on the other hand, can be made as may be required by the
allottee, or such minor changes or alterations as may be necessary due to
architectural and structural reasons duly recommended and verified by an
authorized Architect or Engineer after proper declaration and intimation to the
allottee. These minor changes exclude the structural change including an
addition to the area or change in height, or the removal of part of a building, or
any change to the structure, such as the construction or removal or cutting into
of any wall or a part of a wall, partition, column, beam, joist, floor including a
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mezzanine floor or other support, or a change to or closing of any required
means of access ingress or egress or a change to the fixtures or equipment,
etc. If any change is made without the consent of the allottees or if any minor
change is made without the intimation to the allottee or without appropriate
permissions, as stated above, the aggrieved allottee can file a complaint about a
violation of section 14 of the Act.
6. Completion certificate and occupancy certificate:
The promoter is obligated to obtain the completion certificate and the

occupancy certificate and hand over the same to the allottee at time of transfer
of possession. If the promoter fails to do so, the possession is not deemed to be
lawful and the aggrieved allottee can file a complaint about violation of section
11(4)(b).
7. Lease certificate:
If the development is done on a lease hold land, the promoter has to give a lease
certificate to the allottee or the association of allottee certifying that all dues and
charges in regard to the leasehold land have been paid. If the promoter fails to
do so so, the aggrieved allottee can file a complaint about a violation of section
11(4)(c ) of the Act.
8. Association of allottee:
The promoter has the duty to form the association or a co-operative society or a
federation of the allottees under the local laws or within a period of three
months of the majority of allottees having booked their respective units. If the
promoter fails to form the same, the aggrieved allottees can file a complaint
about violation of section 11(4)(e ) of the Act.
9. Conveyance deed:
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The the promoter is responsible for the execution of a conveyance deed in favor
of the allottee along with the undivided proportionate title in the common areas
to the association of allottees or competent authority as per the time limits of
local laws or in their absence, within, within three months from date of issue of
occupancy certificate. If the promoter fails to do so, the aggrieved allottee can
file a complaint for violation of obligations under sections 17 and 11(4)(f).
10.Payment:
The promoter is responsible to pay all outgoings including land cost, ground
rent, municipal or other local taxes, charges for water or electricity,
maintenance charges, including mortgage loan and interest on mortgages or
other encumbrances and such other liabilities payable to competent authorities,
banks and financial institutions, which are related to the project until he
transfers the physical possession of the real estate project to the allottee or the
associations of allottees. If the promoter fails to do so, the aggrieved allottee can
file a complaint about a violation of Section 11(4) (g) and (h) of the Act.
The promoter is also responsible for providing and maintaining the essential
services, on reasonable charges until transfer of physical possession. If he fails
to do so, a complaint can be filed for violation of the obligation under section
11(4)(d) of the act.
11.Defective title of land:
It is the obligation of the promoter to ensure that the land on which the unit is
being built is not defective. If any loss is caused to the allottee due to the
defective title of the land, the aggrieved allottee can file a complaint under
section 18(2) of the Act for compensation.
12. For any violation:
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The ambit of the act is very wide. If the allottee is aggrieved for any violation of
obligation as per the act and seeks compensation for the same, a complaint can
be filed under section 18(3) of the Act. A penalty can also be imposed on the
promoter under section 61 of the Act.
13. Maintenance:
The promoter shall be responsible for providing and maintaining the essential
services, on reasonable charges, till the taking over of the maintenance of the
project by the association of the allottees. If the promoter fails to oblige by the
same, a complaint can be registered under section 11(4)(d).
15. WITH RESPECT TO AGREEMENT FOR SALE:
Both the allottee and the promoter enter into an agreement for sale(hereinafter
referred to as “the agreement”) by virtue of which, they share a contractual
relationship with each other tied with the restrictions of the agreement. The
rights and obligations as specified by the agreement have to be adhered to. In
the case of non-obligation of the same, it attracts liabilities.
Every agreement, though follows a similar model, is peculiar and hence the
obligations under a particular agreement have to be studied in particularity to
know the solution to breaches of obligations therein. However, there are certain
general anticipated breaches of the agreement as per the act which can be
caused under the following circumstances:
16. Wrongful cancellation:
Wrongful cancellation can be said to be done if the same is done unilaterally,

without sufficient cause or without obliging the terms and conditions of the
agreement. If the promoter wrongfully cancels the allotment of the allottee, the
aggrieved allottee may file a complaint about violation of Section 11(5) of the
Act.
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17. Pending obligations before transfer:
The promoter can transfer his majority rights and liabilities in the project to any
third party but only after obtaining the written consent of two-thirds of the
allottees and the authority. In case of such transfer, the promoter is liable to
complete his pending obligations of the agreement. If he fails to do so, the
aggrieved allottee can file a complaint about a violation of Section 15(2).
18. Delivery of possession:
The promoter is obligated to deliver the possession of the allotted unit to the
allottee within the due date and the grace period as mentioned in the agreement.
If the same is delayed, the aggrieved allottee can file a complaint under section
18(1) and section 19(4) of the Act for return of amount and compensation and
interest.
19. Information for plans and schedules:
The promoter has to give information relating to sanctioned plans, layout plans
along with the specifications, approved by the competent authority along with
the stage-wise time schedule of completion of the project, including the
provisions for water, sanitation, electricity and other amenities and services as
agreed to between the promoter and the allottee. It may include any other
information as per the agreement or even the Act or the rules and regulations. If
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such information is not given to the allottee, the aggrieved allottee can filed a
complaint about a violation of section 19(1), 19(2) and 11(3) of the Act.
20. Any other violation:
As has already been mentioned that each agreement needs to be dealt with in
particularity. For any other violation of obligation arising from such agreement,
a complaint under section 18(3) can be filed for return and compensation.
WITH RESPECT TO AUTHORITY
21. Compliance of order of authority:
If the promoter does not comply with the order or directions of the authority, the
aggrieved allottee may file a complaint under section 63 of the Act.
22. Compliance of order of appellate tribunal:
If the promoter does not comply with the order or directions of the appellate
tribunal, the aggrieved allottee may file a complaint under section 64 of the Act.
23. Execution:
It is not unusual for an order by the adjudicating authority or even the appellate
tribunal to not be followed. In that case, the aggrieved allottee can file for the
execution of an order under Section 40 of the Act. On such filing, a recovery
certificate (RC) is issued to jurisdictional District/Revenue
Collector/Magistrate. RC is then forwarded to Jurisdictional Tehsildar or related
officer for its execution. The authority/officer/tribunal that passes the order
possesses the power to enforce it as well.
OTHERS
At certain instances not covered in the act, the aggrieved allottee can also
approach the authority. The modern trend in the real estate sector has been to
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attract the buyers with interest rate subvention schemes or subvention schemes
which provide financial flexibility and ease on the buyers.
They have been discussed herein below-
24. Pre-EMI scheme:
Pre-Emi schemes can be traced from the builder buyer agreement. They are also
popularly known as NO PRE-EMI TILL POSSESSION schemes. In such
schemes, the buyer takes a loan from a housing finance bank and thereafter a
Tri-Partite agreement is entered into amongst the builder, the buyer, and the
housing bank. The payment schedule is broken in two parts - Pre-EMI and EMI.
It is the obligation of the builder to pay the Pre-EMI as per the terms and
conditions of the agreement which can either be for a specified period or until
the delivery of possession, as the case may be. It is only after such a period that
the Buyer's liability to pay the EMI begins. In the meanwhile, the housing bank
keeps on disbursing the loan amounts to the builder as per the construction
linked plan.
It has been seen that certain banks and the builders act in connivance and harass
the buyer into paying the Pre-EMI as well. If the buyer refuses to pay such
amounts, it drastically affects the CIBIL Score of the buyers. The housing bank
on the other hand disburses the loan amount to the builder without considering
the construction of the project which is also against the Reserve Bank of India‘s
guidelines. In such instances, although the act does not mention any specific
relief, yet the allottee can approach the authority to seek grievance of the same.
Here, the allottee does not have to wait for the due date of delivery to pass in
order to approach the authority, the allottee can approach even if the default has
occurred before such a date.
25. Buy Back Scheme:
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Buy Back schemes are one of the most attractive schemes where the builder
assures the allottee that the builder would buyback the property, if the allottee
would not want to take its possession after a stipulated time at an appreciated
price. In such agreements, the allottee may either retain the property or sell it to
the builder at the predetermined price. It is also to be noted that such schemes if
arising out of MOUs shall not be within the jurisdiction of the authority or the
adjudicating officer. The forum deals in contractual obligations arising out of
builder buyer agreements. For the recourse to the sought from RERA, the MOU
should be a part of the BBA. However, an MoU containing the assured return
scheme could be considered as an agreement for sale if the adjudicating
authority established under RERA and the Appellate Tribunal were to interpret
the definition of agreement for sale under Section 2(c) broadly by taking into
consideration the objects of RERA and without limiting the definition by the
particulars of Section 13(2) and the prescribed agreement for sale and hence
RERA would have exclusive jurisdiction in such matters on account of Section
79.
26. Assured Return Scheme:
In such schemes, the builder assures the allottee a return on payment of a

substantial part of the unit value. For instance, the builder may demand an
upfront payment of 50% of the total sale consideration and promise to pay a
return on such payment until the delivery of possession and demand the
remaining amount at the time of delivery. The Delhi High Court, held that
certain assured return schemes are structured such that, the developers invite
investors to invest in their project on a rate per foot basis. There will be no unit
or property that will be demarcated to be allotted to the investor and there is no
intention to hand over the possession of the property upon completion. The
developer retains the possession of the property and manages it according to the
scheme. The developer finds appropriate persons to lease the property to and the
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retail investor receives returns based on the value of the lease and corresponding
investment made. This type of assured return schemes is recognized as a CIS
(collective investment scheme)
THE RIGHT TO INFORMATION IN CASE OF PROPERTY MATTERS
The Right To Information Act, 2005 covers ‗any public authority‘ except
national security authorities for seeking information.
Therefore, an RTI application can be filed with regard to all matters except in
cases involving national sovereignty. Seeking shelter in any form is a
fundamental need in society. Property matters and disputes are the most
commonly dealt with by people on a regular basis.
How RTI is usefule in property matters?
Suppose you buy a plot in a registered township. The end use is mentioned as
‗residential‘ in the land registry deed. However, your investment in the plot of
land is not yielding the expected rate of return prevailing in the industry because
there is some confusion regarding permissions or some such other
complications.
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Lack of appropriate permission like non-clearance of the map, no permission for
diversion from the town and planning department, changes in zoning, embargo
in new constructions in a certain area can cause erosion of investment value.
Most of the time, correct information is not easily accessible to most
landowners or prospective buyers. What if the land belongs to the green zone
but wrongly mentioned in the registry as residential? Such mysteries can be
resolved by using RTI.
Land records are generally maintained by collectorate/municipality for the city

area or by gram panchayat for the adjoining tehsils and villages. Filing an RTI
can help in uncovering critical information related to your property that may be
very hard to get otherwise.
When the RTI tool can be useful?
 RTI is a powerful tool when corrupt or inefficient officials deny your

legal rights or delay important government services that you may need at
a revenue office, land record office or sub-registry.
 It can be resorted to know the reasons for the delay in processing your file
and delay in addressing the grievance.
 It can help in verification, diligence and collating useful information

about the property which can prove useful in negotiating a property deal
in your favor.
 It can also be used as a tool to uncover information post the deal if there
is any indication that the builder/seller might have hidden material facts
during negotiation which could have substantially affected the buying of
the property. for eg: any pending litigation, encumbrance etc over the
property.
Filing an RTI application
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An RTI application can be filled u/s 2(f) of the RTI Act against any public
authority to obtain the required information and relevant documentation.
The application must mention the following basic details:
 The name of the relevant public authority from whom the information is
sought.
 It must also specify the location and details of the property/land.
 Location of the property is important as it helps in determining the district

under which the property falls.
The Sample format of RTI Application Form
To,
The Public Information Officer
PIN:
Sir,
Subject: Request for information under Right to Information Act, 2005
I Shri / Smt. / Ms.
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Son/daughter/wife of Shri/Smt./Ms
Resident of
telephone number (with STD Code)
and/or mobile number: wish to seek

informationas under
I hereby inform that following formalities have been completed by me:
1. That I have deposited the requisite fee of Rs. /- by way of cash/

banker cheque/ draft/ postal order/ others )
favouring dated
2. I need the photocopy of the documents and I had deposited the cost of the
photocopy of Rs. /- for (number of pages)
3. I had deposited sum of Rs /- for the changes of CD. (strike

out which ever is not applicable
4. That I belong to category of below poverty line (BPL): Yes/No
(strike whichever is not applicable). If yes, I am attaching the valid photocopy

of the certificate. Yes/No
5. That I am ―citizen‖ of India and I am asking the information as ―citizen‖
6. I assure that I shall not allow/ cause to use/ pass/share/ display/ or

circulate the information received in any case and under any
238
circumstances, with any person or in any manner which would be
detrimental to the unity and Sovereignity or against the interest of India.
Signature of the applicant
Dated:
Step by step guide to file an online RTI application:
https://rtionline.gov.in
1. For submitting RTI application click on submit request option.
2. On clicking on submit request option 'Guideliens for use of RTI ONLINE

PORTAL' screen will be displayed. This screen contains various guidelines for
using RTI online portal. Citizen has to click on the checkbox 'I have read and
understood the above guidelines' and then click on submit button.
3. Then Online RTI Request Form screen will be displayed. Ministry or

Department for which the applicant wants to file an RTI can be selected
from Select Ministry/Department/Apex body dropdown.
4. Applicant will receive sms alerts in case he/she provides mobile number. The
fields marked * are mandatory while the others are optional.
5. If a citizen belongs to BPL category, he has to select the option 'Yes' in 'Is the
applicant below poverty line?' field and has to upload a BPL card certificate in
supporting document field. (No RTI fee is required to be paid by any citizen
who is below poverty line as per RTI Rules, 2012)
6. On submission of the application, a unique registration number would be

issued, which may be referred by the applicant for any references in future.
239
7. If a citizen belongs to Non BPL category, he has to select the option 'No' in
'Is the applicant below poverty line?' field and has to make a payment of Rs 10
as prescribed in the RTI Rules, 2012.
8. 'Text for RTI request application' should be upto 3000 characters. If the text
is more than 3000 characters, then the application can be uploaded in supporting
document field.
9. After filling all the details in the form, click on the 'make payment' option.
10. On clicking the option, Online Request Payment form will be displayed.
The payment mode can be selected in this form, which can be; internet banking,
ATM-cum-debit card or credit card.
11. After clicking on the 'Pay' button, applicant will be directed to SBI payment
gateway for payment. After completing the payment process, applicant will be
redirected back to RTI Online Portal.
12. The applicant will get an email and sms alert on submission of application.
What you would do if your application gets rejected?
Steps for filing RTI First Appeal
1. For submitting First appeal application, click on 'submit first appeal' option.
Upon clicking, 'guidelines for use of RTI online portal' screen will be displayed.
This screen contains various guidelines for using RTI online portal.
2. Citizen has to click on the checkbox 'I have read and understood the above
guidelines' and then click on submit button.
3. Online RTI first appeal form screen will be displayed. Applicant has to enter
registration number, email ID and security code in the form.
240
4. Upon clicking the submit button, online RTI first appeal form will be
displayed. The applicant can then select reason for filing appeal application
from 'ground for appeal' dropdown field.
5. Text for RTI first appeal application should be upto 3000 characters. If the
text is more than 3000 characters, then the application can be uploaded in
supporting document field. (As per RTI Act, no fee has to be paid for first
appeal).
6. On submission of the application, a unique registration number would be

issued, which may be referred by the applicant for any references in future.
Adv (Dr.) Rajkumar S Adukia

Global Life and Business Transformation Guru
Author of 300 plus books,
B.Com (Hons.), FADV, FCS, FCMA, LL.B, MBA, MBF, M.Com, Dip IFRS (UK),
DLL&LW, DIPR, Dip in Criminology, Ph.D. IP(IBBI),UNODC Advanced
Anti-corruption: Prevention of Corruption
Mobile: 09820061049
Email:advdrrajkumaradukia@gmail.com
Introduction
ADV (Dr.) Adukia left no stone unturned during his career span
expanding to more than 37 years. He is chairman of Meridian Business
Consultants Private Limited. The company is involved in providing A to Z
services required by any business. ADV (Dr.) Adukia is a legendary
241
example of seeking ways to explore new areas of business and
profession. He is a pioneer of many areas of practice which were never
thought before by professionals. His mantra is to provide services to
clients that help them in building better and sustainable businesses. He
is a knowledge seeker and believes that knowledge needs to be
ingrained and used for the benefit of society at large. He strongly
believes that professionals have to go beyond the traditional areas of
practice like audit and direct and indirect taxation. These are least
rewarded areas in comparison to the knowledge and expertise we have
as chartered accountants. He feels that one must expand himself to
serve better and not settle for less whether in terms of rewards or the
various kinds of assignments. Being an adherent follower of the
“Science of getting Rich, he believes the pie gets bigger and bigger so
that it can cater to every individual’s need. We contribute in creating
abundant universe by asking for more riches. And he desires better
remuneration for assignments not just for himself but for all his fellow
professionals.
He achieves this by mentoring the professionals, handholding them

through various workshops, webinars and lectures he conducts for
professionals who wish to enter into new areas of practice. He has
mentored 1000 professionals for passing the Insolvency Exam and
Valuation Exam.
Professional Areas of Expertise
He has been a well know professional exhibiting expertise and providing

services in the following areas:
 Taxation
 Corporate Advisory & Compliance
242
 Corporate Insolvency& Bankruptcy
 Civil And Commercial Litigation
 Alternative Dispute Resolution (ADR)
 Intellectual Property Rights
 Anti-trust & Competition
 Real Estate
 Family Law
 Criminal Laws
 Labour &Employment Laws
 Banking & Finance
 Charitable Organizations
 Forensic Services
 Entertainment, Media & Broadcasting
 Pharmaceuticals, Food & Drug
 Antidumping, International Trade Law& WTO
 Telecommunication
 Information Technology
 Infrastructure Projects
 Insurance Law
 Cooperative Sector
243
 Environment Law
He represents clients at Debt recovery tribunals and has filed

appliAdvtions under Insolvency and Bankruptcy Code 2016 for recovery
of debts through National Company Law Tribunal (NCLT). He has also
represented clients at various commercial tribunals like The Appellate
tribunal under The Prevention of Money Laundering Act 2002, The
National Company Law Appellate Tribunal for cases under Companies
Act 2013 and the Competition Act 2002, the Telecom Disputes
settlement and Appellate tribunal for cases under the Information
Technology Act 2000.
Experience
His vast experience includes training and professional services to banks,
financial institutions, Corporate, Government Departments, and
Regulators and as:
 An eminent Speaker and Business Advisor,
 An expert on Business laws, cyber laws, cyber security,
International Forensic Expert
 Faculty at Insolvency and Bankruptcy Board of India
 Author of more than 300 books on a wide variety of topics ranging
from those dealing with Trade, Taxation, Finance, Real Estate, the
Insolvency & Bankruptcy Code, Intellectual Property Rights,
Banking laws, Emerging technologies like AI and Blockchain to
topics relating to personal and professional growth. He is the
winner of National Book Honor Awards 2018
 He has been conducting seminars and lectures across various
countries.
 Authority on Banking Laws, Insolvency Laws, Insurance Laws,
Intellectual property laws, Indian GAAP, IFRS and Ind-AS.
 Business advisor for various companies on varied subjects
 Travelled across the globe for his professional work and
knowledge sharing. He has widely travelled three fourth of globe
addressing international conferences and seminar on various
international issues like Corporate Social Responsibility, Corporate
Governance, Business Ethics etc.
Education
Having graduated from Sydenham College of Commerce & Economics
in 1980 as 5th rank holder in Bombay University and he has also
244
received a Gold Medal for highest marks in Accountancy & Auditing. He
cleared the Chartered Accountancy Examination with 1st Rank in
Intermediate and 6th Rank in Final. He also secured 3rd Rank in the
Final Cost Accountancy Course. He has been awarded G.P. Kapadia
prize for best student of the year 1981. He also holds a Degree in law,
PhD in Corporate Governance in Mutual Funds, MBA, Diploma in IFRS
(UK), and Diploma in Labour law and Labour welfare, Diploma in IPR,
Diploma in Criminology.
He has done Master in Business Finance, a one-year post
qualification course by ICAI. He has also done Certificate Courses
conducted by ICAI on
 Arbitration
 Forensic Audit and Fraud prevention
 Concurrent Audit
SignifiAdvnt Professional Achievements:

He is member of International Bar Association. The International Bar
Association, established in 1947, is the world's leading international
organization of legal practitioners, bar associations and law societies.
The IBA influences the development of international law reform and
shapes the future of the legal profession throughout the world.
He served as President of GST Research foundation, a society

registered under Societies Registration Act, 1860.
He is the Chairman of Association of Indian Investors, a Section 8
Company wherein its main thrust is to educate the layman about the
principles of safe investment, the complexity of Capital market, changing
rules of market operations, designing and implementing effective Internal
Financial Control framework, the frame work on enhancing the Cyber
security of the organizations and implementation of ISO 27000
framework and provide Corporate Governance Services.
He is also Vice President of All India Insolvency Professionals.All India
Insolvency professionals is an organization providing services in the field
of insolvency and bankruptcy, corporate restructuring etc. The
245
Organization is currently having 200 professionals all over India as its
members.
Current& Past Memberships:
 International Financial Reporting Standards (IFRS) Foundation
SME Group
 Insol India National Committee for Regional Affairs.
 Membership of the following committees of International Bar
Association
 Asia Pacific Regional Forum
 Forum for Barristers and AdvoAdvtes
 Arbitration Committee
 Bar Issues Commission (BIC)
 Member of INSOL India
 ADVG Advisory Committee
 Quality Review Board, Government of India
Professional Service
ADV (Dr.). Adukia’s service and contribution to the profession
 Chairman of WIRC of IADVI in 1997-98
 International Member of Professional Accountants in Business
Committee (PAIB) of International Federation of Accountants
(IFAC)from 2001 to 2004
 Member of Inspection Panel of Reserve Bank of India
 Member of J.J. Irani committee (which drafted Companies Bill
2008)
 Member of Secretarial Standards Board of ICSI
 Member of Working Group of Competition Commission of India,
National Housing Bank, NABARD, RBI, CBI etc.
 Independent Director of Mutual Fund Company and Asset
Management Company.
 Worked closely with the Ministry of Corporate Affairs on the
drafting of various enactments.
 Served as Independent Director of SBI Funds Management
Private limited and Bank of India asset management co. ltd
246
 Served as Independent director at ICAI accounting research
foundation section 8 company
 Actively involved with ICAI as a Central Council Member during the
period when the convergence to IFRS was conceptualized in India
and has been instrumental in materializing the idea.
 Address to Insolvency and Bankruptcy Board of India
 Address to Institute of Chartered Accountants of India
 Address to Institute of Company Secretaries of India
 Address to Institute of Cost Accountants of India
 Address to Chamber of Indian Micro Small & Medium Enterprises
 Speaker in IIA’s 2013 International Conference in Orlando on
Green Audit.
 Faculty at Indian Institute of Corporate Affairs for courses on
Insolvency Laws and Corporate laws.
 Faculty Speaker in Workshop on Commodity Risk Management for
Bankers organized by CAFRAL (Centre for Advanced Financial
Research and Learning)
 Faculty at National Institute of Securities Management (NISM)and
Indian Institute of Corporate Affairs (IIADV)
 Addressed the Program for Principal Inspecting Officers &
Inspecting Officers by Reserve Bank of India- Department of Non-
Banking Supervision.
 Addressed the National apex Chamber of Commerce and State
apex Chamber of Commerce including his address to ASSOCHAM,
Confederation of Indian Industry (CII), Federation of Indian
Chamber of Commerce and Industry (FICCI), and All India
Manufacturers Organisation (AIMO).
 Addressed the CBI officers, officers of Serious Fraud Investigation
Office (SFIO), and various State Police Academies.
 Addressed the SCOPE- Standing Conference of Public Enterprises
which is an apex professional organization representing the
Central Government Public Enterprises. It has also some State
Enterprises, Banks and other Institutions as its members.
 Addressed the National Academy of Audit and Accounts (NAAA)
He has been a panel member at the following Arbitral

Institutions/Forums:
 International Bar Association
 Bombay High Court
247
 Indian Council of Arbitration
 The International Centre of Alternate Dispute Resolution
 The Institute of Chartered Accountants of India
 Bombay stock exchange
 National stock exchange
 Western Region - Ministry of corporate Affairs, Government of
India
 South Eastern region - Ministry of corporate Affairs, Government of
India
 North Western Region - Ministry of corporate Affairs, Government
of India
 India International ADR Association
 International and Domestic Arbitration Centre India
 ASSOCHAM IADVDR
 Mumbai Centre for International Arbitration
 Main Mediation Centre Maharashtra & Goa
 Airports Authority of India (AII)
 Bharat Sanchar Nigam Limited (BSNL)
Global Life and Business Transformation Guru

adv (Dr.) Adukia is a motivational speaker, Growth Coach, and Life and
business coach. He has done various Self developments from India and
USA. ADV (Dr.) Adukia has done a graduate course from Landmark
worldwide which is a personal and professional growth, training and
development company focusing on people achieving success and
fulfillment. His exposure to advanced programs and introduction to
leadership programs has made him the most sought-after trainer in the
areas of business development and personal development. He has been
a trainer at many corporates which has resulted in positive and
permanent shifts in the quality and life of people.
He is adherent follower of “Think and Grow Rich” by Napoleon Hill . He
is also trained by Bob Proctor series on “Thinking into results”. His
experience from his international trainings has been penned down in his
various books on self-development. Some of his books on Self-
development are
1. MagiAdvl Formula for Success
248
2. Strike Gold
3. Reinvent your Mind
4. Self-Empowerment
5. Genius is Universal
6. How to be super successful professional
7. Hoe to be super super successful person
8. Zooming your business and profession
9. Time management
10. Stress management
11. Goal setting
adv (Dr.) Adukia is very passionate about learning new things and
believes self-improvement is a permanent process. His zeal is infectious
to any person who meets him either for professional growth advise,
business growth advise or for personal growth advise. Adv (Dr.) Adukia
has given solutions of growth to everyone.
He has done courses on:
 Winner
 Time management
 Stress management
He has mastered programs on:

 Siddha Samadhi Yoga
 Silva mind control
 Alternative therapy
 Think and Grow Rich
 Art of living
 Reiki
249
Awards and Accolades
He has been felicitated with awards like
 The Jeejeebhoy Cup for proficiency and character,
 State Trainer by the Indian Junior Chamber,
 “Rajasthan Shree” by Rajasthan Udgosh, a noted Social
Organization of Rajasthan and
 Several other awards as a successful leader in various fields.
 National Book Honors Award 2018
Adv (Dr.) Adukia continuously endeavors to help the clients achieve the
desired results through customized and innovative solutions which
involve focusing on exploring opportunities and leveraging them to
enhance the growth and expansion of his clients.
Sharing the knowledge is enhancing the knowledge. ADV (Dr.) Adukia
encourages the precise energies in research, training, seminars, and
books writing in the field, the one has passion.
You can reach me on 9820061049 or email me on

advdrrajkumaradukia@gmail.com.
250

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ENCYLOPEADIA REAL ESTATE TRANSACTIONS

Types of house buyers

There are four categories of property buyers:

(i) Retail shoppers (the average home buyers),

GENERAL PRECAUTION WHILE PURCHASING THE PROPERTY

Some important aspect one must looked at are as briefly as below:

What is title to a property?

Title is a legal term; it means the ownership right to property.

 Title of property is the prime concern of everyone at the time of

The law relating to transfer of immovable property is governed by the Transfer

i. Title documents of the property: Government order for grant, succession

ii. Nature of title: Leasehold, freehold, or development right.

v. Khata registered in the name of the seller.

vi. Information on pending or past litigation.

vii. Availability of original title documents with the seller.

Investigation of title is very essential since the ownership of the property is

There are various means to investigate the title such as:

In Maharashtra to check the title verification of the property the investigator

B. Verify the Indentity of the Seller

What documents confirm seller‘s identity?

The following instances may be noted for illustration:

i. Residence status and nationality of the seller, in case of an individual and

ii. Identification of all owners, in case of properties held jointly.

C. Conversion and land-use permissions

With increasing urbanisation and merging of revenue lands with urban

F. Status of Tax Payments

Non-payment of property taxes constitute a charge on the property, affecting its

An encumbrance certificate is the answer to many of the queries a home buyer

A buyer would find the answer to questions like these in an encumbrance

Which authority issues encumbrance certificate?

Encumbrance certificates have two types:

Offline procedure to apply for encumbrance certificate:

[Form 22 is the standard performa used to apply for an encumbrance

Obtaining Encumbrance certificate in Maharashtra

To Process In-Person http://igrmaharashtra.gov.in/frmHOME.aspx

Required document for the purpose:

H. Physical survey and access to the property

2. Clearing home loan

3. Organizing the documents

4. Fixing the House

5. Hiring the right broker

A real estate agent is a licensed professional who arranges real estate

Real estate agents usually specialize in either commercial or residential real

It‘s important for consumers to understand whether a real estate agent

The registration of an agent is mandatory under section 9 of the Act. The

 Details of the Applicant (Name, address, contact details and the

 Brief details of his enterprise (name, registered address, type of

 Particulars of registration as a proprietorship, society, partnership,

―Every real estate agent registered u/s 9 shall:-

c) not involve himself in any unfair trade practices,

e) Discharge such other functions as may be prescribed.‖

A lease deed: It is a document or a written contract between the property owner

Content of the lease deed

1. Property details, including area, location, address, structure, furniture and

4. Clauses for lease termination should be mentioned in the lease deed,

Registration of Lease Deed

Documents required for registration of lease deed

The following documents are required for lease deed registration:

 Identity proof, such as Aadhaar Card, driving licence, passport, etc., of

 Address proof of the authorised signatory, from both the parties.

 Passport-sized colour photographs of the authorised signatory, from both

 Company PAN card and company seal/stamp, if it is a commercial

 The original proof/evidence of ownership or title of the property.