GUIDE TO LAWYERS TO OFFER LEGAL OPINION ON TITLE OF PROPERTY

Art of Opining
On Title of Property

A. Sri Vijayan
2017

E-BOOK
Art of Opining
On Title of property

By
A. Sri Vijayan

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3
 Preface to the first e-publication
I take immense pleasure to e-publish this book, the first of its kind, to guide
the prop-lawyer comprehensively in understanding property documents, method
of scrutiny of documents, alertness of various frauds, probable challenges and help
to form opinion on title of property.
As the book is designed in lucid language and manner, it is hoped that it is
useful for laymen, students, fresh, trained and experienced lawyers as well.
I thank to my father Sri.(Late) R.Anantha Rajan, Tahsildar (Retd), my
uncles Sri.A.Aruga Doss, Tahsildar (Retd), Sri.A.Rajendran, District Registrar
(Retd), my brother in law Sri. (Late) A.Elangovan, Sub Registrar for keeping me
informed of procedures, land administration, registration, manuals, codes, etc.
I sincerely thank to Justice Sri.S.Marimuthu, former High Court Judge,
for his valuable suggestion and training on the property law during the course of
preparation of this book and also my friend Sri.M.Vijaya Kumar, Advocate,
Madras High Court who have been so kind as to give his assistance in many
ways.
Suggestion from kind readers are solicited for improvement of this e-book in
the subsequent publication and it is hoped that this publication shall prove to be
very useful.

30th April 2017 A.Sri Vijayan

"Sri Lakshmi"
1324, Poompukar 18th Street,
Kolathur, Chennai – 600 099.
srivijayan.a@gmail.com
mobile: +91 94440 48547

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 Prologue
Ethics on title opinion
Whether the lawyer has liability to client in rendering the opinion?

Rendering of opinion is a fiduciary duty and negligence in scrutinizing the

documents by the lawyer shall result in distress or loss to be suffered by the client,
to whom the opinion is offered, due to the defect in title. Under this circumstance,
the lawyers are bound to or required to their clients to scrutinize the documents,
deeds carefully, visualize the probable claims, challenges and offer opinion.
Now-a-days, numerous scams and frauds are developed which alarms and
needs the lawyer to effectively and carefully analyze the title of property beyond
the legal aspects.
The lawyer shall not give room to unenthusiastic or casual study of deeds.
Hence, a lawyer needs to exercise his knowledge and skill with commitment
in offering the professional service without any flaw.
This e-book, focuses on the phases beyond legal aspects.

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 Foreword
By Justice S. Marimuthu

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 Index
1.Land reforms
2.Classification of land
3.Administration of land
4.Description of property
5.Field measurement
6.Layout
7.Layout approval
8.Restriction
9.Transfer of property
a. Succession
b. Will
c. Settlement
d. Partition
e. Release
f. Sale, gift,etc
10. Rights
11. Title
12. Possession
13. Patta
14. Death, Heir Certificate
15. Encumbrance certificate
16. Missing of documents
17. Witness
18. Probable claims
19. Various disputes
20. Various frauds
21. Scrutiny of deed
22. Role of prop-lawyer
23. Forming of opinion

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 Land reforms in India
Land reforms aimed at re-distributing of ownership of lands and optimum
utilization of land. It also dealt the rights, duties, obligations of the land holder.
Lord Cornwallis is considered as one who regulated the Zamindari system,
but some other say that Zamindari system is the ancient practice in India; others
say it was introduced after Mughal invasion into India.
Whatever may be the history, in this system, the land was held by a person
who was responsible for collecting revenue from cultivators and for payment of a
share of produce, usually in percentage, to the ruler.
The land holder was known as Zamindars or Mirasudars. Zamin means
Land; Dar means Holder or a person. The cultivator was called Ryot and the land
is called Estate.
The Zamindari system, after modification, was introduced by Lord
Cornwallis in West Bengal in 1793 and later it spread to other parts of country.
By this system, the Zamindars acquired the land from the government free of
cost and rented out to Ryots. The ryots were allowed to cultivate on the estate,
land, and has to pay the rent to the Zamindar irrespective of quantity of produce.
However, this system could not work well because the ryots were over burdened.
This led to the introduction of permanent settlement.
Permanent settlement
The permanent settlement regulation, XXX of 1802 was passed. By this
arrangement, the proprietary right of the land became vested in Zamindars and was
inheritable. The cess, which was to be paid by Zamindars to the government, was
assessed and fixed independent of productivity of land.
Estates Land reforms
When time passed, it was felt that the interests of the Ryots had to be
governed. As a result, the Madras Estates Land Act, 1908 was introduced. By this
act, the Ryot had to pay a fair rent and thus the right to have, to hold and possess
the land permanently by the Ryot was assured.
The Ryot should not be evicted at the will of the land lord. Besides, the right
of occupation was heritable and transferable.
And both Ryot and Land Lord shall exchange documents to this effect. The
document which Ryot gets from land lord was/ is called Patta and that from Ryot
is called Muchalika.
However, this system of permanent settlement has been repealed by Tamil
nadu Estates Abolition Act as it was not properly implemented.
In 1948, Ryotwari Settlement was introduced and in 1963, its second phase
is implemented. By this, the entire estates held by the Zamindars, Inamdars

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including Porampokes, Kulams (Tanks), Eri (Lakes), Samudhayam (Lands for
communal use), etc were transferred to government.
Under this system, the responsibility of paying land revenue or tax to the
government is of the cultivator (Ryot) and no Zamindar is available.
The government shall grant patta to Ryot. This patta is called Ryotwari patta
and the land is called as Ryoti land (Land owned by Cultivator). The water bodies,
land reserved for common use are retained by the government itself.

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 Classification of Land
The person acts as Solicitor of buyer or seller of property shall have
thorough knowledge about the classification of land. I am trying to focus some
light on this matter.
The land is classified into various types according to the use, owner, etc.
According to use
o Agricultural land
o Habitation land /Residential land
o Waste land
o Communal land
o Water body
o Industrial land
Let us see each classification of lands one by one.
Agricultural lands
Agricultural land means cultivable or cultivated lands. This is also known as
Vivasaya nilam, vayal, kazhani, etc. These are further classified into the following.
Wet land or Nanja land
Dry land or Punja land
Nanja Lands
The land, cultivable, where paddy can be produced, is called Nanja or
Nanjai nilam. In English, this term is known as wet land.
Punja Lands
The land, cultivable, where pulses and cereals (that is to say other than
paddy) are produced, is called Punja or Punjai nilam. In English, this term is
known as Dry Land.
Naththam
Naththam means land wherein habitations are situated or simply we can say
the popular term “residential site” is situated here.
On this site, residents build their houses and appurtenants which include
puzhakadai (back yards), workers’ shed, etc.
The Naththam was further classified into the following.
o Gram Naththam
o Cheri Naththam
o Naththam Porampoke
Gram Naththam means the village occupied by caste Hindus. Cheri
Naththam means the sub-village occupied by lower castes as per the earlier caste
system. Please note that at present there is no caste based classification in vogue.
Naththam Porampoke means the lands or sites owned by government but occupied
by residents. In Southern Tamil Nadu, the term Naththam means porampoke.

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Tharisu nilam
The uncultivated lands, uncultivable lands are classified as tharisu nilam,
which means non-yielding or barren land, simply waste land.
Porampoke
Poram or puram means outside, out skirt or apart; and poke or pokku means
went. Thus Porampoke means kept outside or settling apart. The lands which may
be cultivable but not cultivated or unfit for cultivation due to its location are kept
aside and reserved for some purpose and communal lands are called purampokku
or Porampoke and owned by Government.
The Porampoke lands are further classified into various kinds according to
the purpose for which they are reserved. They are:
o Eri Porampoke (Lake/ tank)
o Aathu Porampoke (River)
o Vaikkaal porampoke (Channels and canals)
o Maeichal porampoke (Graze land/ Pasture)
o Salai porampoke (Road)
o Samudhaya porampoke (Communal land)
o Temple site
o Cremation/ burial ground
o Threshing floor
o Naththam porampoke (Habitation sites)

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 Administration of Land
The land administration is a two tier system in Tamilnadu. The first is
revenue administration and another is local administration. The village is the basic
unit of both the systems of administration.
Revenue Administration
The whole nation is divided into states which is further divided into Revenue
Districts headed by District Collector. The districts are further divided into
Revenue Divisions headed by Revenue Divisional Officer or Deputy Collector.
Each division is sub-divided into Taluks or Tahsils headed by Tahsildars,
which is still divided into Zones managed by Zonal Deputy Tahsildars (DT).
Each zone is divided into Firkhas liaisoned by Revenue Inspectors (RI), the
firkha is divided into Gram or villages administered by Village Administrative
officers (VAO). Each village is identified by a number and the land in the village is
divided as per the holdings by individual subjects of the village and allotted with
numbers called survey numbers.
Local Administration
Small villages (Hamlets) are combined and administrated by Panchayat
office. Adjacent panchayats are grouped or unified and administered by Panchayat
Union.
Area larger than the village is called town and is administered by Town
Panchayat. The cosmopolitan towns are called Nagaram or Municipal Town and
administered by Municipal council or simply Municipality. The metropolitan
towns are called City and administered by Municipal corporations or simply
Corporations.

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Identification or Description of Property
The property shall be legibly and crisply described in all the documents
clearly without giving any ambiguity. The property shall be divided into following
items:
o Land
o Building
o Apartment (Flat)
o Facilities
Each and every item of the above shall be clearly described.
Land
The Land can be identified by its address. But address is described in
various ways. They are :
o Postal department address
o Revenue department address
o Local administration department address
o Registration department address
The postal address is as usual as ordinary comprising of Door number, plot
number, street number or name, area or locality name, village or post office,
district, etc.
For example the “land with door #11, plot #1324 situated at 18th street,
Poompuhar Nagar, Kolathur post, Chennai – 600 099” is a type of describing a
land by its postal address.
Another way of identifying the land by its postal address is “Land bearing
door #14 and plot # 816 of Jain street of Karanthai of Thanjavur 613 002”.
Describing a land with Revenue departmental terms is to furnish the survey
number (Rural Survey, R.S.), village number, village name, Taluk name, District.
If the land is situated in a town, it can be described by giving Town survey
number, Block number, ward number, division name, taluk name and district.
For example, “the land comprised in the survey #234 of 65, Kathirvedu
village, Madhavaram taluk, Thiruvallur district”. If the land is in town or city it can
be described like “the plot bearing the survey # T.S.#816, ward-I, Block-5 of
Thanjavur town, Thanjavur taluk, Thanjavur district”.
After describing the land the type of land whether it is agricultural land,
commercial land, industrial land or residential land are to be described. And then
the extent of land is to be mentioned in sq. ft or sq. m or in both and then the kind
of transfer whether it is undivided or full extent is also to be mentioned. It can be
identified by its boundaries.

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Thus a land can be fully described as follows.
Part and parcel of land of 2431 Sq.ft bearing Plot #21, KVK Samy street,
Vijayalakshmipuram, Oragadam, Ambattur, Chennai – 600 053
Comprised in Survey no: 183/5,9,10,15, Revised S.No.183/5A1A of Oragadam
village, now in T.S.No.91, Block-53, ward-A of Ambattur Municipality & Taluk,
Thiruvallur District.
Within Chennai North registration dist and sub-district of Ambattur

The land bounded on the

North by Plot No.20
South by Plot No.22
East by Survey No.183/14
West by Road
Measuring:
on South – 72 ft.
on North – 71 ft.
on East – 34 ft.
on West – 34 ft. admeasuring 2431 Sq.ft

an undivided share of land can be described as follows.

Undivided share of 225 Sq.ft out of 2431 Sq.ft of Land bearing Plot #21,
KVK Samy street, Vijayalakshmipuram, Oragadam, Ambattur, Chennai – 600 053
Comprised in Survey no: 183/5,9,10,15, Revised S.No.183/5A1A of
Oragadam village, now in T.S.No.91, Block-53, ward-A of Ambattur Municipality
& Taluk, Thiruvallur District.
Within Chennai North registration dist and sub-district of Ambattur
The land bounded on the
North by Plot No.20
South by Plot No.22
East by Survey No.183/14
West by Road
Measuring:
on South – 72 ft.
on North – 71 ft.
on East – 34 ft.
on West – 34 ft. admeasuring 2431 Sq.ft

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 Building
In similar way, a building also has to be described.
First the land has to be described in all the possible ways of address and then
about the building regarding its extent, number of floors, type of flooring, type of
ceiling/ roof, etc. The number of electrical points, availability of motor, pumps and
compound wall, fencing, appurtenances, well, septic tank, car park, sump,
electrical service connection, water and sewerage connection, its tax provisions, etc
also may be described.
A building along with land can be described as follows.
All that piece and parcel of land measuring an extent of 1393 sq.ft out of
2018 sq.ft of Northern portion of Plot #3 of Sri Padmavathy Nagar (Extension),
an approved layout PPD/LO:8/98 with a building of 1200 sq.ft vide a planning
permit D.Dis58/05/A3, originally comprised in survey No.58/1 of 53 (Old 56)
Kathirvedu village, Ambattur Taluk, Thiruvallur District, Puzhal Panchayat
Bounded on the
North by : Remaining Part of Plot No.3
South by : Southern portion of Plot No.3
East by : 30' road 6th street
West by : Land comprised in S.No.58/2B
Land Measuring
East to West on North side : 50 feet
East to West on South side : 49 ½ feet
North to South on East side : 28 feet
North to South on West side : 28 feet
admeasuring 1393 sq.feet
Within Registration district of Chennai-North and sub-district of Ambattur
An apartment along with UDS of land can be described as follows:
All that piece and parcel of the flat # F2 of the extent of 825 sq.ft. in first
floor, a car park of 85 sq.ft in the building named Vishnu Flats at plot #13,
Kuppusamy street, Ullagaram, Chennai 600 091 erected in land bearing Survey no:
40, of 135 Ullagaram Village and 505 sq.ft of undivided share of land of 3900
sq.ft with EB service connection, Water, drainage connection, all electrical
mountings, accessories, etc in “as is where is” condition.
The land bounded on the
North by 30' Kuppusamy street. South by [Former] Canal
East by Plot 12 West by Plot 14
Lies within the limits of Alandur SRO, Chennai South RO and jurisdiction of
Ullagaram-Puzhuthivakkam Municipality
TNEB Service connection no:
Property assessment tax :
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 Field Measurement
Field Measurement Book, popularly known as FMB, is a revenue book
wherein sketches showing the land comprised in survey number are drawn and
maintained. The sketch shows the shape and dimensions of each field by its
boundary and also its measurements.

Example of a FMB is given above.

Each sub division or sub divided portion of land is owned by a property
owner. The FMB sketch also shows the Survey number, Village name, Taluk name
and District name.
The proplawyer can verify the exact area of land and boundaries of the
property under scrutiny with the help of FMB sketch. The sketch extract for a
particular survey number can be availed from Taluk office.

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 Layout
When a layout drawing, residential, commercial or industrial, is taken or
produced for scrutiny, it has to be compared with the FMB sketches (Extract from
Field Measurement Book) of all survey numbers on which the layout is formed.
If there is any variation in boundaries of adjoining fields, area extents, etc
that has to be dealt with further and the convincing answer for variation is to be
drawn or found.
If the layout is
approved, the certified
copy of layout showing
the survey fields, plots
from the issuing office
or approving authority
may be obtained.
Nowadays, the offices
concerned publish the
drawing of each
approved layout in their
official web portal,
which can be
downloaded and
perused.
It may be noted
that the lands adjoining
the approved layout are
also annexed and the
layout drawing is
modified with ulterior
motive and then sold as plot of approved layout. Hence, the certified copy from the
issuing office would eradicate the possibility of cheating.
Layouts are scrutinized by Development authority, town and country planning
authorities. For better understanding, the process of approval of layout is given in
next page.

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 Layout Approval
Generally the capital city of a state and its outskirt area are under the
jurisdiction of development Authority. Remaining parts of state are covered by
Town and Country Planning, which has its regional offices at parts of state.
The layout within the territorial jurisdiction of regional offices [when the
total area of layout is less than 10 acres in rural and 5 acres in urban locations] are
dealt by these regional offices of DTCP. The larger layouts are dealt by head office
of DTCP. The quantum and schedule of powers may vary from state to state.
Procedure for approval
The application for approval of layout is received by the local body. Local
body means corporation, municipality, town panchayat, panchayat union, etc.
The local body shall scrutinize the application and forwarded to DTCP with
its recommendations for technical approval and planning permission.
The DTCP may technically approve, modify or reject the layout and send the
same to the local body, which shall accord its final approval. Thus the applicant
shall get the layout approved by and from local body.
Duties of Local Body
The local body, before forwarding to DTCP, shall scrutinize the application
on the following aspects:
 Ownership of land by verifying all the relevant documents.
 Compliance with master plan and development plan
 Process of acquisition by government
 No effect by land reforms act 1961, urban land ceiling act 1978 or land
acquisition act.
 Objections on the basis of water logging, drainage, health, surrounding,
quarries, burial grounds, cemetery, etc.
 Approach from and to neighbouring layout.
On receipt of layout proposal sanctioned technically by DTCP, the LB shall
ask the applicant to hand over the open spaces, roads and public purpose lands
[park]. When the promoter of layout handed over the same, the council of local
body shall grant final approval to the layout. Now-a-days, sometimes, the local
body accords its approval without getting any advice from DTCP.
The local body shall intimate sub registrar office that it has no objection for
registration of documents selling the plots of the said layout. The street and other
public purpose reservations shall be taken over and maintained by local body.

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 Restriction on use of land/property
Mostly municipal authorities or government authorities may make
regulations for use and development of land, town planning, etc and impose
restrictions on land use, which is also called as zoning. The basic principle in
zoning is to plot out a land into residential or commercial or industrial zones or
layout and imposing specific restrictions as to the type of buildings, height of
buildings, set back of buildings, number of residential units, floor space index
(FSI), cubic space index so as to ensure reasonably uniform comfort to all plots.
This type restriction can be imposed by owners of adjoining land also.
Sometimes, neighour may restrict the construction of building within certain height
and also on set back so as to ensure uncontrolled flow of natural air circulation and
sun light to neighboring plot or building. These are called easement restrictions.
In some cases, the owner/ seller may impose specific restrictions to the
purchaser, who is bound to and by the terms of rectifications. For example,
Mr.Krishnan sold a piece of land forming front portion of his larger land and in the
sale deed, he imposed a condition that a space is to be kept open in the front
portion so as to make the rear portion approachable from the road. There are
further details and directions about the size of the said reserved space.
Thus there is a restriction in use of land
Retained by seller
sold that a reserved space shall be kept open
and such restriction runs with the land and is
applicable, not only to the present purchaser
Being sold reserved but also, to subsequent buyers.
In industrial zones, environmental
hazards play a significant role, statutes are there to regulate the storing, handling,
discharging and disposing of toxic, flammable, hazardous chemicals and
substances. In commercial and public purpose areas including hospitals, hotels, etc
discharges from the premises are to be controlled.
Sometimes, a property may be attached with another property as an
indemnity or guarantee for a specific period not more than 12 years. This
indemnity runs with the property and shall pass to future buyer also for the specific
period of indemnity.
Hence, it becomes necessary for a proplawyer to check for any restriction
that impact the land or property.

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 Acquisition & Transfer of property
A property can be transferred from one person to another in various ways.
They are listed below:
o Succession or inheritance
o Will
o Settlement
o Partition
o Release or relinquish
o Gift
o Sale or purchase
o By Government grants (Ryotwari, Inam or Grants)
o By statutory bodies viz Slum clearance board, housing board, etc
o By Banks, FIs vide SARFACI Act
o By Courts by decree on disputes
o By society or trust
o Boodhan or other schemes similar to gift
o Adverse possession
Each and every above ways, except succession, requires a document to establish
or evidence the transfer of property. The document which confers title on the
claimant is called title deed. For example the deed by which a person sell his
property to another, then the deed is called sale deed.
Other than these title deeds, some other documents are also important to trace
the title of the property, they are:
o Patta, Chitta
o Approval by CMDA, DTCP, Corporation, Municipality, Panchayat union
o Death certificate
o Legal heir certificate
o Encumbrance certificate

We shall now one by one see the law governing each type of transfers.

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 Succession
Devolution of property after death of a person
When a person dies without making any arrangement, his property shall be
devolved as per Law of Succession. There are three types of law of succession
based on the religion.
Succession in Hindu
First, let us see the inheritance of properties among Hindus, Jains, Buddhists
and Sikhs.
The law applicable to the above religions is Hindu Succession Act 1956,
which lists out a class of persons or heirs and share of property that will be
inherited by them. The word ‘heir’ means a person entitled to inherit a intestate
property.
According to the law of succession, if a Hindu dies without making any Will
regarding his property, his all heirs, male or female, will succeed with equal share.
A person is said ‘died intestate’ with regards to his properties of which he/
she has not made any arrangement for devolution after his death. That is to say he/
she has died without leaving any settlement or will.
Prior to 1956, Position of Succession
Hindus were governed by vedic laws or usage of any particular region and
caste. As our nation is a large one and number of castes are also numerous, many
rules of succession were in practice. Popular among them were Dayabhaga in
Bengal, Mayukha in Sourashtra, Bombay, Konkan, Marumakka Thayam in Kerala,
Mitakshara in other parts of India.
The different schools of succession dealt the property in diverged manner
because of their different origins of place and caste, which resulted in highly
complex property laws.
Before 1956, a Hindu undivided family (HUF) consisted of both men and
women. A woman in a HUF had a right to enjoy a property but the ownership,
alienation rights vest with the men only. A woman cannot be the member of the
co-parcenary family in Mitakshara law.
Though the HUF consisted of many members, the senior member of the
family is the manager of the family who looked after all the family affairs. He is
called Karta, his position in the family is some what like or similar to that of a
trustee in a trust. In other words, a karta is a manager or a care taker of the HUF
who is entitled to administer the family welfare, external relation, properties on
behalf of other members of the family.
In mitakshara law, a joint family property devolves by survivorship within
the coparcenary. This means that every birth and death of a male in the family shall
decrease or increase the share of other male persons of the family.

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Post 1956, Position of Succession
The Hindu Succession Act was enacted in the year 1956.
Women were given with absolute ownership over the properties instead of
limited ownership.
However, gender discrimination continued as it followed the mitakshara
system of coparcenary which constituted only male members which is apparent in
section – 6 of the Act.
In 1985, the HSA was amended in Andhra Pradesh and is called the HS(AP)
Amendment Act 1985 which brought a new scenario to the joint family system
particularly in property succession by accepting woman as a member of
coparcenary system.
In 1989, the states of Tamilnadu, Kerala and Maharashtra also amended the
law which states that the rights of daughter in property or other are at par with that
of son.
Thus this wiped out the discrimination, but in these said states only. It is to
be noted that the said discrimination which violated the fundamental right of
equality was prevailing in other states of the country.
Later in 2005, the discrimination was completely wiped out by giving
daughters and sons equal right to property. According to this, the woman became
the coparcener and would acquire, irrespective of marital status, by birth, rights to
ancestral property just like a male coparcener. Even she can become a karta of the
family.
Coparcenary property devolution
So far it has been discussed about the HUF, coparcenary, who are all its
members. Now, we shall see the quantum of shares inherited by each of them in a
coparcenary property.
A coparcenary property may be one or more of the following.
o An ancestral property or
o Property acquired by HUF i.e. from the funds of the family or
o A property bought by an individual member but later converted as common
property.
All the coparceners, whether male or female, irrespective of marital status,
have equal undivided share and interest in the estate of the coparcenary property.
If a Hindu person, male or female, dies intestate, his or her properties
devolve on all the heirs of the deceased person. However, the quantum of share to
each heir depends on whether the property is self acquired property or ancestral
one. If it is a self acquired one, it shall devolve on all the direct heirs equally.

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Let us see the example below.
If a person, male or female, dies intestate leaving spouse, son and daughter
as direct heirs, then the self acquired property shall be divided into three equal
parts and each heir shall acquire one part or share.
Suppose he/ she left a spouse, two sons and one daughter. Then the property
shall be divided into four equal parts.
A male dying intestate leaving his mother, a wife, a son, a daughter. The
property shall be divided into four equal parts and each heir shall get one share.
A male left two wives, a son, a daughter. Then the property shall be divided
into three equal parts. Son and daughter shall get one part each and third part shall
be shared by both the wives equally.

Let us see some other examples of ancestral property.

If a man dies intestate leaving his wife, son and daughter as his only legal
heirs. The property enjoyed and left by him is a coparcenary one. The quantum of
share shall be different in this case. The property shall be divided into three equal
parts and these parts shall be distributed in the following manner.
o One part to the deceased
o One part to son and
o One part to daughter
The one part had by the deceased shall be considered like his separate or self
acquired property, that is to say, the one third part of the property which would
devolve on the deceased shall be further divided in equal parts and each tiny 1/3
shall be taken by wife, son and daughter equally. It may be noted here that each
heir shall get some share absolutely. Mother is included as heir for the male
member only.
Let us consider two more examples.
Here the property is acquired by a female through her husband or father in
law or through her father and she dies intestate, the said property shall devolve on
the heirs as discussed above. In the absence of any such heirs, the property shall
return back to the origin through whom she got the property and from there it
devolves on the heirs of the origin.
That is to say, if the female intestate left no heirs and acquired the property
 Through her husband, the property shall devolve on the heirs of her husband.
 Through her father, the same shall devolve on heirs of her father
There are some class of relations listed in the Hindu Succession Act as class – I
and class – II heirs. The class – I heirs include mother, wife, son, daughter. If any
or all of these heirs predeceased, their wife and children shall inherit the respective
share of the property. If there is no class – I heir, then the property shall devolve on
the class – II heirs in the order mentioned below as per the Act.
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CLASS II
I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s
daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s
daughter.
V. Father’s father; father’s mother.
VI.. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.

HSA examples continued

Shares of co-parcener
The coparcenary property or joint family property on partition can be
divided and shared among the members of the family according to their position as
per the law of succession.
The position and shares can be easily understood by the following pictorial
examples
A family consists of a father, a son and a daughter. The family property can
be divided as follows.

Father (F) Property

Son.(S) Daughter(D) F- 1/3 S-1/3 D-1/3

The family consists of three coparceners. So each coparcener shall get 1/3
share of the property.
Let us go deep into this. The family consists of a father, two sons and a
daughter. All these members are coparceners of the joint family. Thus we can say
the family consists of four coparceners.
The family property can be divided into four parts equally and each
coparcener shall get one part. This has been explained in the figure above.
Let us assume another situation. In the above situation, we see that the
partition took effect when the father is alive. Consider this case, partition by son
and daughter after the life time of father. How the scene changes. The father leaves
his wife, a son and a daughter.
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 This is explained in the figure given below.

Property

F (Decd) 1/3 S.1/3 D.1/3

W.1/9 S. 1/9 D.1/9

We have seen that the property was divided into three equal parts, when the
father was alive. Here also, the property is divided into three equal parts assigning
one part to the deceased father. The part so assigned to the father is further divided
into three equal parts (number of heirs).
Thus the quantum of share to each member shall be as follows.
Widow : One ninth (1/9) share in the property
Son : One ninth (1/9) through his father and his own one third (1/3)
= 1/9 + 1/3 = 4/9 share in the property
Daughter equal to son (i.e., 4/9 share in the property)
Let us assume father died without making any arrangement and leaving
coparcenary property and surviving by his wife, two sons and a daughter. The
property shall be divided as follows.

Property

F (Decd) ¼ S.1/4 S.1/4 D.1/4

W.1/16 D. 1/16 S.1/16 S.1/16

Son 5/16
Son 5/16
Daughter 5/16

25
 If the father alive, he should have got ¼th share. After his life time his ¼th
share shall be divided into four equal parts and given to his heirs viz., his widow,
two sons and a daughter. Thus wife shall get 1/16 th share, his sons and daughter
shall get (1/4 + 1/16) 5/16th share each.
After partition, each share shall be considered or treated as their self
acquired property.
Let us consider another situation. A man left behind his mother, his
wife, a son and a daughter.

Property

F ((Dcsd) 1/3 S-1/3 D-1/3

M-1/12 W-1/12 D -1/12 S-1/12

S -5/12

D -5/12

In this situation, the mother shall get 1/12th share, his widow shall get 1/12th share
and his son and daughter shall get 5/12 share each.

A man left behind his son and three sons of another pre-deceased son.
Then the property share shall be divided as follows.

Deceased

Son.1 Son.2 (Predec)

G.C.1 G.C.2 G.C.3

The son.1 shall get ½ share. The grand children through the son.2 shall together get
½ share. This ½ share shall be further divided into three equal parts. Thus each
grandchild shall get ( ½ x 1/3) 1/6 share.
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Succession in Christianity
As we already discussed, the law of succession depends on religion, so far
we have discussed about succession in Hindu family and devolution of property
among the Hindu family members.The Christian Laws of succession are codified
under the Indian Succession Act, 1925. This Act applies to all types of Christians
in India such as Indian Christians, Anglo-Indians, Jews, Armenians and foreign
origin Christians domiciled in India.
The devolution of properties of a person (Christian) who dies intestate is
governed by this Indian Succession Act. The intestate property shall be divided
into number of parts equal to number of branches in the surviving degree.
The deceased may left surving children, grand children or great grand
children. The children are said to be first degree, the grand children are said to be
second degree and the great grand children are said to be third degree relatives.
If any of children is surviving in the first degree, the intestate property shall
be divided into number of parts equal to number of children/ branches available in
the first degree including the pre-deceased children.If all the children in the first
degree are predeceased the deceased intestate and atleast one grandchild is
surviving in the second degree, the property shall be divided into number of grand
children who were actually available including the predeceased.
The property shall be divided into three equal parts
Deceased

Son.1 Son.2 Son.3

Let me try to explain the case by pictorial representation.

Deceased

Son.1 Son.2 (Predec)

G.C.1 G.C.2 G.C.3

In the above case, one son is surviving and another is predeceased. The property
shall be divided into two equal parts. Son.1 will get ½ share. The second half shall
be further divided into three equal parts. i.e., ½ x 1/3 = 1/6. Each grandchild shall get
1
/6 share.
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 Will
Will, what it is?
Will is an important document which enables a person to leave his/ her
property after his death to reach the desired hands as per his/ her wish and
particularly not to wrong hands. A will is a document whereby a person can and
shall bequeath his/her property to any person after his/ her death. The person who
writes the will is known as Testator. The will written by themselves without the
legal knowledge or with the help of ordinary man shall become invalid in the eyes
of law and cannot be implemented or enforced, after the death of the testator.
If the true wish of the testator is not apparent on the wordings of the will or
it is ambiguous about the intention, it shall make the unjustified or unintended
devolution of property. Thus the will shall become invalid and ineffectual
practically and the testator cannot come in person and tell what the real intention of
him / herself was at the time making the will.
Thus the knowledge about and scrutiny of the will need special attention and
here is to feed a fair idea about will, this information is shared with you.
Essentials of a Will
Certain formalities are to be carried out or completed with in order to make a will
as a valid and enforceable one. They are:
1. The testator must be of sound mind
2. The property must be self acquired one
3. There is no coercion or external influence over the testator
4. It shall come into effect after death of testator
5. It is revocable or alterable any time during the life of the testator
6. There must be at least one beneficiary
7. There is an Executor to execute the will
8. The will must be signed by the testator in ordinary circumstances
9. The will must be attested by at least 2 witnesses
Scrutiny of a Will
The solicitor has to ensure that the will has all the essentials, it was executed as per
the requirements or the procedure.

28
Capacity of Testator
The lawyer must verify that the testator has reached the age of majority and of
sound mind. He must be able to understand what he does by the Will. Age of
majority is normally 18 years, however when a guardian is appointed to a minor, it
shall be 21 years. Deaf, dumb or blindness shall not incapacitate or disqualify a
testator from making a valid Will. The lawyer shall ensure that the testator was not
a lunatic or insane, as such a person cannot make any Will.
Property
The solicitor shall check whether the Will shall relate to disposition of the property
of the Testator and ensure that the property is the self acquired one of the Testator.
If it is a Coparcenary property or a joint family property, his will shall be confined
to his share alone.
It may be noted that a Hindu woman cannot make Will for the property which she
received as share of her husband in the HUF properties. But she can make Will on
her own property acquired by purchase or gift and a Muslim cannot bequeath more
than one third of his property by the way of Will.
Free intention
By going through the wordings of the Will, the lawyer shall understand the
intention of the Testator regarding disposition of property is free. The intention
shall not be revealed or procured due to coercion, influence or fraud.
Attestation
To prove that the Testator has made the Will when he was of sound mind and not
intoxicated, not under coercion or any undue external influence and he expressed
his intention freely and voluntarily, following procedure is to be followed.
1. The Testator has to sign or affix his mark to the Will, on all the pages.
2. If the Testator is not in a position, the Will shall be signed by another person
in his presence and by his direction, while doing so, it must be remembered
that the inability to sign the document is due to physical ailment or other and
NOT due to the insanity or intoxication, etc
3. The will must be attested by a minimum of two witnesses. By attesting, the
witnesses declare that
a. The Testator has signed the Will in their presence or
b. The Will has been signed by another as described in clause -2 above
c. The Testator acknowledged that the Will has been signed by the
Testator or by the third party
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 4. After ensuring the above, the witness shall sign the Will in presence of
Testator. This is called attestation. It does not require all the witnesses shall
or must present and sign at the same time.
There is no any prescribed form available for the Will. It must be in simple,
understood by all concerned and shall not give any ambiguity.
Effect of Will
One shall not forget that a Will shall have effect and come into operation after
death of the Testator. It cannot be performed or enforced during life time of the
Testator.
Revocability
As a Will does not give any right to the legatee or the person who can inherit the
property during the life time of the Testator and as no effect, the Testator can alter
or modify the terms and conditions of the Will either partially or fully.
Thus a Will can be modified or even revoked at any time and in any manner he
deems fit.
Registration of Will
A will need not be registered; but can be optionally registered with the office of the
sub-registrar or registrar. The Testator must present the Will at the sub registrar
office for registration. The witnesses also sign the Will at the time of registration.
Then the registrar shall get the LTI (Impression of Left Thumb) of Testator in the
second page of Will and in his book by allotting a serial number to it.
Then he will make an endorsement on all pages of Will and finally scan the Will
and then return the registered Will to the Testator.
Deposit of Will
A Testator can deposit his Will in a sealed cover with the Registrar. He must
superscribe on the envelope his name and deliver either personally or by his
authorised person, and then the registrar shall keep the Will under his custody.
If the Testator wishes to withdraw the Will, he may apply to the registrar, who
shall if satisfied, deliver envelop to him.
Modification to Will/ Codicil
As we have discussed earlier that the Will shall come into effect after death of
Testator, it can be modified or revoked at any time during the life time of Testator.
The document which shall alter the Will or add any property, change property or
remove any property and its disposition is called a Codicil. It may also alter the

30
position of beneficiaries by increasing or decreasing the number of beneficiaries or
even completely changing them.
If the Testator wants to cancel the Will that he made earlier and wants to make a
fresh Will or he wants to incorporate some changes or to modify some clauses
alone, he can do so by means a document called Codicil.
The Codicil is nothing but a modification document to a Will and for part and
parcel of the Will. In other words, it is equivalent to an annexure of a Will and
shall not act independently.
The procedures for execution, attestation, registration, etc of a codicil are same as
that of a Will.
Opening of deposited Will
After death of the Testator, any person may apply to the Registrar to open the
envelope enclosing the death certificate of Testator.
The registrar, if satisfied, shall open the envelope and make a copy of the Will,
register the same in his book as per the procedure earlier discussed. Then he will
give a copy of the registered Will to the applicant.
Executor of a Will
The wish of the Testator as found in the Will has to be get into effect which needs
a person to carry out. Normally, the Testator himself shall appoint a person in the
Will itself to administer the property and to carry out or execute the wish or
intention of the Testator. If the Will does not mention anybody’s name, the
beneficiaries can approach the court and pray for appointment of any suitable
person.
The person so appointed to carry out or to execute the Will, by the Testator or by
the Court, is called an Executor.
Will – Nullified
‘A’ acquired a property vide a Will executed and registered by her mother. ‘A’ has
a younger sister ‘B’. in the will, it is stated that ‘B’ has bad conduct and character,
that’s why the mother bequeathed the property to her elder daughter. ‘B’
challenged the will on the ground that the mother is normally residing with
younger daughter, so there is no question of bad conduct. And also the will was
executed when the mother had been to elder daughter’s house and witnessed by
tenants of the elder daughter who would ordinarily be in support of house owner
and the mother was under the influence of the elder daughter. It was allowed by the
Court.
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 Settlement
Settlement is a kind of transfer of property, predominantly immovable, by its
owner. In other words, a settlement is a disposition of property or properties,
movable or immovable, as per the wish of the owner of the property. The
settlement shall be in written form only and is to be registered.
The settlement of a property can be made by a person, only when it is self
acquired one. The property acquired by partition of family properties is also
considered as a self acquired one. The Transfer of Property Act authorizes the
settlement.
Normally, in settlements, consideration would not be there directly as in the
case of sales. A settlement can be made in favour of family members or even non
relatives due to the love and affection that the executant/ owner of property had
over the claimant. Thus “love and affection” is considered as a consideration here
in settlement. A property can be settled in favour a Trust also for religious or
charitable purpose and the mental satisfaction is considered as the consideration.
Here, the executant is called as Settlor and the claimant or the beneficiary is
called as Settlee. A settlement can be made as absolute or conditional and it can be
made to take effect or to come into force immediately or after lifetime of the
executant/s. The settlor can impose certain conditions that the settlee has to take
care of the settlor or pay certain amount every month to the settlor towards the
maintenance which implies that the event of non fulfillment of the condition or
direction shall invalidate the settlement and the deed becomes voidable revocable
by the settlor on the ground that the condition is not complied. On the other hand,
if the settlement is made as absolute, without any duty or conditions, then it shall
transfer the title and ownership completely to the claimant/ settlee, settlor shall not
have any lien or interest over the property and the settlement cannot be revoked.
The settlor can retain the life interest and enjoyment right and receive the benefits,
yields, rental income from the property during his/ her life time along with spouse.
Registration of Settlement Deed
The settlement amounts to conveyance of a property and hence the deed is to
be compulsorily registered and the stamp duty and registration fee have
concessions if it is made in favour of family members.
Family members, in general, means mother, spouse, son, daughter, grand
children, wife of predeceased son. However, various state government made
different stands in defining and listing the relations in the family members.
As the cost of preparing and registering the settlement deed is very less,
most frauds are done through settlement deeds and it is also noted that some of the
settlement deeds are drafted without legal prudence which make the deed as
invalid or challengeable and let the settlee in trouble in acquiring the property and

32
its marketable title. This necessitates that more care has to be exercised while
scrutinizing the settlement deeds. Moreover, it may be noted that some of the
settlement deeds are drafted without any legal prudence which shall let the
beneficiaries in trouble at a later stage.
Gift and Settlement
It is often people got confused by the terms Gift and Settlement. Somebody
even say, locally, “Gift-Settlement”.
Gift and Settlement are not same, there is no consideration for a gift,
whereas love and affection is considered as consideration in settlement, marriage
may be a consideration for some settlements.
Gift requires acceptance, whereas there is no acceptance in settlement as it is
mostly made in favour of family members.

Trust and Settlement

Here also, people have unclear idea and mistook due to a trust deed as a
settlement deed. In trust deed, executant is called as Author, vests the property. In
settlement deed, the executant called Settlor transfers the property directly to the
claimant called settlee, who shall be absolute owners of the property subject to the
conditions if any.
Whereas the trust deed, the Author vests the property to the Trustee for the
benefit of beneficiary. The Trustee shall manage the property as per the direction
of the Author and the beneficiary shall enjoy the benefits and shall not have any
administrative control over the property.
Voidable Settlement due to unknown witness
A house in Madurai for sale for a reasonable price. One person is interested
in buying the same, negotiated the terms, got the Xerox of deeds and documents
pertaining to the property and gave to the lawyer for scrutiny and opinion.
The owner of the property has got the property from his mother through a
settlement deed. It is understood from statements made outside the documents that
the owner has an elder brother (another son of original owner who executed the
settlement deed), who was excluded from the subject property vide the settlement
deed on hand. The reason for transferring the property to the younger son alone
and that for excluding the elder son is not spelt out in the deed.
Then the lawyer looked into the witnesses, whose details and whereabouts
are unknown. It is further understood that the person who witnessed the executant
of the settlement deed is ‘caught witness’ or ‘caught witness’, popularly known as
‘pidi saatchi’, who is not at all related to the executant of the deed and is available
on verandah of registering offices for a meager payment.
We shall discuss about the above ‘on the spot witness’ (pidi Saatchi) at a
later relevant stage and its voidability.
33
 Hence, the client was advised to get an affidavit executed by the mother of
the present owner stating the reasons as discussed above. In the event of death of
herself, the owner has to arrange to get a consent deed or ratification deed executed
by his brother, the probable challenger of the settlement deed, stating that he has
knowledge about the execution of settlement deed on hand before or after
execution of the same and he shall not pose any challenge on the said deed.
The owner refused to arrange for the consent deed and later it was come to
know that his brother challenged the settlement in a Court of Law and hiding the
fact, the vendor tries to sell the same in order to toughen the situation for his
brother.
Hence, the client dropped the proposal of buying the property.
Voidable Settlement due to a warranty clause
A set of documents pertaining to a property was produced to a proplawyer
for scrutiny and opinion. On a fast scanning of the documents, he noticed that an
abnormal number of transfers of ownership were taken place within a short span of
time, say about five transactions in two years. The lawyer suspected that there must
be some disputes in the property.
The scrutiny of the documents showed that the documents are intact and the
transfer in each event was perfect. There he started to study the previous document
which is a settlement deed.
This settlement deed was executed by a father in favour of his daughter
excluding his son. He clearly stated why he excluded his son. The witness also
perfectly traceable (that is not ‘on the spot’ or ‘caught’ witness). All the things
were found normal. He had stated in the settlement deed that the transfer of
property shall take effect after the lifetime of the executant. This is also valid and
perfect. He further added a clause, as usually available in all sale deeds, that there
is no charge, lien, encumbrance in the property and assured that he would clear
them, if any, found later.
Now, the prop lawyer assumed that the brother might have initiated a suit to
nullify the settlement deed. Even if it is executed by the original owner with good
intention to settle it to his daughter, because of the inadvertently appeared above
cited clause of warranty cum indemnity, the deed may be declared as null and void.
Because, it is clear from the deed that the transfer shall take effect only after
the life time of the executant. And in the event of finding any lien or charge or
encumbrance, the promise of clearing the same by the executant would not be
possible when he would not be alive.
Thus the above clause depicted that executant had not understood the
meaning of the contents of the settlement deed or in fact he did not study the
document, which shows that the document is invalid and void.

34
 Partition
Usually, joint properties are partitioned between the joint owners which
amount to severance of the joint interest in the ownership of the common property.
In order to avoid any quarrels between the family members or to maintain the
harmony and the dignity of the family, a decision shall be arrived to by the
members of the family to partition the common properties and the decision is
called family arrangement. If the decision is arrived as a result of quarrel and
partition is made as settlement, the decision is called as family settlement. Because
of similarity in name, it is often mistaken the partition for settlement.
Joint owners of property by intestate succession or joint purchase shall make
partition of property. Each of the co-owners owns equal or unequal shares
proportionate to their interest and which are undivided and not physically
unascertainable.
The portioned property shall become the self acquired property of each party
of the partition. If two or more persons jointly purchase a property, each person
shall be a joint owner of the property and owns a undivided share proportionate to
his or her investment. A property can be jointly inherited by legal heirs of deceased
owner of the property. It may be noted that a grandson can’t directly be owner of
the property or legal heir of his grandfather, if his father is alive.
The partition deed requires minimum of two persons (parties) whereby the
common property is partitioned and the interest of each party is severed from the
joint interest. That is to say every party is already owner of his/ her share. As such,
partition deed can be made by and between the co-parceners, partners or joint/ co-
owners only and it cannot be made in favour of any third person.
Usually, no condition would be made in partition deed as in the case of
settlement deed, however section 10 of Transfer of Property Act permits the parties
to impose certain type of restriction in family arrangement. A co-owner’s share in
a property is inheritable and transferable.
The consideration for a family settlement or arrangement is the expectation
that such a settlement will result in establishing or ensuring amity and goodwill
amongst the relations and after that consideration has been passed by each of the
disputants. The courts held that the consideration for the family settlement being
compromise between parties.
Partition amounts to severance of joint ownership and hence it has to be
registered compulsorily and the stamp duty and registration fee have concession in
case of family arrangement.
Family members, in general, means mother, spouse, son, daughter, grand
children, wife of predeceased son. However, various state government made
different stands in defining and listing the relations in the family members.

35
Partition and Settlement
Usually partition deed is made between joint owners/ coparceners to divide
their share of interest from the common/ joint interest over the property. Thus
partition is severance whereas the settlement is conveyance.
In partition, each party is already owner of his/ her share as governed by
succession or partnership terms, whereas in settlement, the claimant shall own and
possess the property and do not have any interest previously.
In both the cases, claimant shall become independent absolute owner.
Release
Release is an act whereby a person relinquishes a claim, interest, title over a
specified property which he or she has against another person.
Each of the Joint owners or Co-owners of property by intestate succession or
by joint purchase owns equal or unequal share, but a definite share in the property
as per succession or proportionate to their investment and which are undivided and
not physically unascertainable.
The release must be in written form and the deed is to be compulsorily
registered. In a release, both the releasor and releasee are the owners of the
property and the release does not create any title, but there is a transfer of share and
the hence it must be in written form and the deed has to be registered compulsorily.
The release deed is similar to a sale deed. In a release deed, consideration is
optional and in a sale deed, consideration is a must. The released property shall
become the self acquired property of releasee.
The proplawyer while scrutinizing the release deed must see that the origin
of the interest, claim or right is clearly spelt out, the releaser had knowledge about
the nature and quantum of claim or interest which is/ was released and the release
is clearly and sufficiently expressed and thus there is no further claim from the
releaser against the release.
The proplawyer may also see the reason behind the relinquishment, it may
that the property is impartible nature, releaser is well settled or residing at remote
place or the release is on considerable consideration.

36
 Sale, Gift, Grant, Decree
Sale, as per Sec.54 of Transfer of Property Act, is a transfer of ownership by
the owner to another person in exchange of price paid or promised to pay or partly
paid and promised to pay for the remaining.
Exchange of price or value is called consideration. In a sale, consideration is
an essential requirement without which sale is invalid. The important and valuable
thing that evidences a sale between two parties and thus the transfer of property
and gives legal protection to the ownership of property by the buyer is the sale
deed, which is to be compulsorily registered as per Sec.17 of Registration Act.
The seller and buyer would have a negotiation on the terms and condition of
the sale and settle the same and then enter into an agreement for sale. The
agreement may e oral or written and optionally registered. However, the parties
wish to have written agreement and prefer to have it registered.
A sale deed executed after compliance of the T & C of the agreement is
valuable legal document that recites how the seller acquired the property, what is
the consideration, mode of consideration, warranties by the seller to the buyer and
the indemnity and also the restrictions, if any. Thus a sale deed acts as an essential
title deed of the property. The sale deed has to be scrutinised as given in some
other pages to come.
Gift is a voluntary transfer of a property by a person to a third person or
personality in consideration of love and affection. Personality means judicial
personality that includes organizations. There is no price money for the transfer of
property as consideration and there is no promise for consideration.
The gift deed is similar to a sale deed in all aspects except the consideration,
sometimes, in gift, conditions as to alienation and also on use of yields from the
property may be imposed and hence the prop-lawyer has to scrutinize the deed on
all essential requirement and also to check its reflection in EC.
Grant is a gift made by Government to its subjects (also locally called as
Assignment) and the Decree is the order made by the jurisdictional and competent
Court on disputes, if any, over the property. The Grant/ Assignment and Decree
may not be reflected in EC.
The prop-lawyer has to scrutinize the grant or decree for its genuineness,
conditions or restrictions on its use, alienation, etc and check for its compliances.

37
 Various Rights
Right is a legally enforceable claim that an individual has towards another to or
not to do a specific act. Interest is a comprehensive term to describe any right,
claim, or privilege of one person against another. So interest includes right also.
One can have interest over a property without right but cannot have right without
interest.
Life Right also known as life interest is the right in the property that lasts for a
person’s life time and terminates on the death of the person. It is only for the
benefit of that person and she or he cannot alienate the property.
Enjoyment Right or quite enjoyment right is a right to privacy and undisturbed
use of the property. It is a right to enjoy the benefits and yields from the property.
Absolute Right is one and is total and complete right, unqualified one and is not
subject to any lien. A person with absolute right has both legal and beneficial
possession of the property. Absolute right is legally enforceable to some action
regarding the property, to have and to hold the same in exclusive possession, to
quietly enjoy the property without any interruption or interference, to enjoy the
property quietly, to enjoy the yields from the property and exclude or refrain any
other persons from the property.
Contingent Right, as applied to immovable property, is an executory right
coupled with an interest. The meaning of the contingent right can be understood
from the word contingent which denotes that there is actually no interest available
presently or a right may vest or confer on occurrence of a specific event.
For example, ‘A’ may write a will granting a life estate (life right) to his wife and
then it shall pass to his son only whenhe gets married otherwise it shall go to a
trust. Here the son is contingent remainder, the contingency being his marriage.
Vested Right is an existing right independent of any contingency. Vested means
existing, permanent, complete, absolute and cannot be taken back. Whereas the
contingent right or contingent interest in a property is founded on anticipation of
occurrence of certain specified event.
Confusion may prevail in the context of use of vested and contingent rights in
common and legal parlance. Hence, one must be careful in using the words
‘vested’ and ‘contingent’. Vested right can be created with postponing it
enjoyment to a future date. A settlor can reserve life interest in herself to be
exercised during her lifetime and absolute right is vested with settlee only on the
death of the settlor. The distinction lies in properly construing the document and
reaching whether the right created is vested or contingent.
Unqualified Right, the word 'unqualified' means 'not modified by any condition or
restriction' and shall not be confused as 'lack of qualification’. Hence, it is absolute
and cannot be reversed.

38
 Title – Marketable and Clear
Ownership is a bundle of rights over a piece of property viz.,
 To have and hold
 To enjoy quietly and peacefully
 To avoid interruption
 To receive profits and yields
 To modify, increase, decrease or destroy
 To alienate
Title of the property is the evidence of the ownership. Title is acquired/
created by the act of parties or operation of law. To find the marketability of
title, investigation has to be made to ensure that the property is properly
devolved as per succession or transferred as per Acts on the executant for which
previous documents are to be perused and essentially scrutinized and the
uninterrupted continuous possession of property by the executant and his
predecessor are to be ensured.
After ascertaining the flow of title unto the present owner, investigation
is to be made to ensure that the property is free from encumbrance, mortgage,
lien, charge, etc and not offered as security or collateral security to any Court of
Law or to any financial institution.

Marketability and clearness of title

The marketable title is one, normally expected as a free from defects and
is transferable, but it does not mean absolute absence of any defect. It allows the
owner to transfer his ownership right to another at his wish. It may or may not
have any defects but does not affect is transferability or marketability. On the
other hand, the clear title is a title which has no obstacles to have , hold, enjoy
and also to transfer. It has no liens, charge or encumbrance of all types. The title
is unblemished and clear.

Defects that make the title unmarketable.

 Undischarged mortgage
 Restrictive covenants to transfer
 Encumbrances
Defects that affect the clearness of title.
 Easements on the property as a servient
 Variations in the names of executant/ claimants
 Adverse possession
 Undischarged lien

39
 Possession
Possession - Exclusive
Actual possession means a right to have and retain the property until it
is challenged and the contrary is proved. A person who establishes a better right
to possess than the other would be the owner and thus possession is a vital
essential ingredient of ownership.
Indian law confers ownership to a person who has uninterrupted
possession for a quite long period, which is called adverse possession. On the
other hand, if the owner is not in possession of his property, he loses his
ownership. Thus ownership is finally based on possession.
If a building is transferred or sold, the solicitor has to verify that the
property tax has been fully paid up to date and there is no arrears, pending due or
there is no appeal or claim by any civic authority. This can be verified in the
guarantee given in the deed and also in property tax statement or receipts.
In addition to the above, the client may be advised to make enquiry in
person at the spot of the property about the possession, particularly if it is a
vacant site or the owner is residing outside of the property.
Possession - Adverse
Adverse possession is a concept whereby title to a property comes to
rest in a person who has no right thereto, but who asserts a right thereto, openly,
continuously and hostilely against all the world including the real owner, for 12
continuous years.
If a person does so for this statutory period, they are said to `prescribe'
title to the property. Such possession which is `open', `continuous' and `hostile' is
called adverse possession, since such possession is adverse to the interests of the
real owner.

40
 Patta
Scrutiny of patta (Previous, present)
A Patta is a legal document issued by Tahsildar or Deputy Tahsildar in the
name of the actual owner of a particular plot of land. It is a land revenue record
which establishes the title/ ownership of land. Chitta is an extract from Patta
register that gives ownership details of land that belong to a person or persons. The
specific information that Patta/ Chitta extract contains include Village, Taluk,
District, Land Owner’s name with Father’s name, Patta number, Survey Number
with sub-division details. Adangal record is the extract from A- Register,
maintained at VAO office. Adangal records provide more details about type of
land and purpose of land. The Adangal extract contains information like Survey
Number wise holdings, field area, tenancy details, crops & cultivation details etc.
A Patta can also be issued for lands having buildings or individual houses
etc. constructed on them. If there are several owners for a single property, separate
Pattas will not be issued. In such cases, there will be one Patta called Joint patta
with the name of all the co-owners mentioned clearly. It is also to be noted that
Patta for lands having undivided shares is not in practice at present.
As the patta or chitta is just a piece of paper, the fraudulent persons may
fabricate the same and use it as a genuine one. So the solicitor shall scrutinise the
patta and compare the name, land extent, unit of measurement (Sq.ft., or cents),
survey number. It can also be checked with internet, if the patta details are not
made available in the net, the client may be advised to verify the genuineness of
the patta with the Taluk office or VAO concerned.
The genuineness of the patta, chitta and adangal can be verified in the following sites.

http://edistrict.tn.gov.in:8080/eservicesnew/home.html.
http://edistrict.tn.gov.in:8080/eservicesnew/land/chitta.html?lan=en.
http://edistrict.tn.gov.in:8080/eservicesnew/land/areg.html?lan=en.

41
 Death, Heir Certificates.
When an owner of property expired intestate, his/ her ownership over the
property shall devolve on his/ her legal heirs as per the succession law of his/ her
religion which is dealt in this book separately. All of his/ her legal heirs shall
become the owner of the property and it also may be noted that successors (legal
heirs) cannot acquire more right than what their predecessor had over the property.
While reading a deed, in the event that the executant claimed that he
acquired the ownership by succession, following facts are to be ensured to
determine the veracity of his claim.
o The predecessor is died
o The predecessor is surviving on only the executant of deed on hand.
o The previous owner has not made any arrangement.
To confirm the above, the death of the previous can be ensured by the death
certificate issued by the authority concerned. On perusing the death certificate, the
name, age, father/ husband of deceased, address last resided or the place of death
are to be verified and compared with those details available in the legal heir
certificate and other documents. It may be noted that reason for death is not
revealed in the death certificate. If any extraneous matters like the reason for death
are available in the death certificate, the proplawyer shall ring his vigil brain as it
might be fabricated one.
The next is the legal heir certificate, which enlists and depicts all the legal
heirs of deceased person. The certificate also reveals the names of predeceased
heirs. If any person listed in the legal heir certificate is not included as a party of
the deed on hand/ under scrutiny, the reason for exclusion of himself/ herself from
the side of executants is to be checked. Sometimes, the left heir might have
deceased after getting the legal heir certificate and his heirs shall become the co-
parceners of the family and joint owners of the family property.
In the events of deceased and predeceased heirs, their death certificates and
legal heir certificates are to be brought and scrutinized. All the direct heirs and
heirs of deceased heirs are to be made as parties of the deed on executant side. If
the deed is not made so, it is to be advised to get ratification deed executed by
those missing heirs. Ratification deed is one whereby the absented parties give
their consent to the principal deed.
In the event of any heir relinquished his or her share in the property, the
release deed has to be perused and scrutinized for its genuineness. The release deed
is nothing but a document whereby one or more of coparceners relinquish/es his/
her/their undivided share over the ancestral property in favour of other
coparcener/s. Release deed is also made in favour of co-owners, but, non-family
members.

42
 Encumbrance certificate
Encumbrance means the charge or liabilities created on any property . the
charge may be in the form of security for a loan advanced to owner of the
property or his nominees which has not been discharged. The Encumbrance
certificate, popularly known as EC, for any particular property can be obtained
from the jurisdictional SRO or through internet official portal of the registration
department.
The EC lists out the transactions affecting the property registered in the
SRO for a particular period. However, some documents are not required to be
registered, but optionally registered as per Registration Act. These include lease,
mortgage, equitable mortgage, sale deed for value less than Rs.100, etc. The
partition deed, though compulsorily registered, was not registered and kept as a
koor chit as an usage.
In addition to listing out the document, the EC reflects details about each
transactions such as name of document (sale, partition, settlement, release, etc),
date of execution, date of registration, name of executant, name of claimant,
document No. and year, consideration, previous document and schedule of
property.
Sometimes, a document in question or under scrutiny may not be reflected in EC.
The reason for the non reflection may be
1. The document registered in outside jurisdictional office and the
endorsements is not made in the SRO concerned.
2. Error crept in SRO
3. The description of the property as mentioned in the EC application may
not match with that available in the deed.
4. Not a registerable one and hence not registered.
5. The document under scrutiny is fabricated one and not a genuine or not a
registered one.
For the reasons 1, 2 or 3, the matter may be intimated to SRO and a fresh
EC is to be obtained.
After studying all the transactions and details of each deed, the property
lawyer shall ensure that all the title deeds are reflected in EC and the link is
perfect.
The EC shall cover a period from the date of root document or 30 years
whichever is maximum.

43
 Non availability of certain documents
Generally speaking, non availability of title deeds or misplacement or
missing of property title documents is a serious matter of concern. The reason for
the missing or non availability is to be identified and may be due to the following:
- The document related to property might be acquired by partition
- The documents might be really misplaced and not lost or encumbered.
- The document might be lost or stolen.
- The property might be mortgaged, and the documents offered as security.
- The property owner might have entered into sale agreement with other and
the deeds might have been given as promise.
If it is mortgaged by deposit of title deeds and the sale is effected through
certified copy of deed/s, the innocent buyer may not get the marketable title over
the property and the mortgagee has the first charge. If the documents are lost or
stolen, the owner might have given advertisement in popular dailies and wide
publicity revealing the fact of missing of documents. However, in the eyes of
prospective buyers, a property without proper original title deeds has its
marketability injured. The buyer may suspect the genuineness of vendor and
marketable title as deposit of title deeds does not require any registration. On the
other hand, the loss or misplace of previous title deeds or EC, patta, tax receipt
may not affect the title of the property as well.
In an event, the seller says that the previous deed in original is not available.
Now, the proplawyer has to see the length of ownership of the seller that is the
period from the date of his purchase and the possibilities of challenges by the
(imagined) mortgagee, if any, due to the mortgage by the previous owner. If, for
argument sake, we imagine that the property is mortgaged, the right of redemption
by the mortgagor (previous owner) is 30 years and the limitation period for any
claim by the mortgagee is 12 years. Hence, a deed executed before 12 years might
have extinguished any right of claim by any mortgagee prior to it. So, the
proplawyer assume that there is no possibility of any claim due to the missing or
non availability of any previous deed when the present title deed is executed
before twelve year. In such event, it is sufficient to mention in the sale deed or to
get affidavit from the seller stating that the property previous deeds and documents
are missing or misplaced and there is no mortgage, charge, lien affecting the
marketability of the property. Indemnity may be executed indemnifying property
and claimant against any claims, damages due to any inadequacy in title.
If the property was acquired by the partition or a part of the property was
bought by the seller, the original previous deed may not be available with seller
and buyer may not get the same. The proplawyer has to scrutinize the deeds and
form an opinion by legal prudence.

44
 Witness
The proplawyer shall have good knowledge about witness, their role
during execution of document, importance of witnesses.
Attesting Witness
The person who signed as witness on the last page of the document is
known as attesting witness who certifies that the executant has signed the
document in his presence or he has received a personal acknowledgment from the
executant of the signature. More than one (two or more) attesting witnesses are
needed for attestation of a document.
The meaning of attestation of a deed/ document as per Transfer of
Property Act in Sec.3 is to have meant attested by two or more witnesses each of
whom has seen the executant sign or affix his mark to the document, or has seen
some other person sign the document in the presence and by the direction of the
executant, or has received from the executant a personal acknowledgment of his
signature or mark, or of the signature of such other person, and each of whom has
signed in the document in the presence of the executant.
It may be noted that all the attesting witnesses has to sign in the presence
of executant but it shall not be necessary that all of them are present at the same
time.
Purpose of attestation
When the execution of a (registered or unregistered) document is denied
by the purported executant, the attesting witness will be called for the purpose of
proving the execution. In the case of Will, the execution has to be proved by the
attesting witness alone. (Section 68 in The Indian Evidence Act, 1872)
Influence of attesting witness over property, relation with executant and
claimants, their importance in proving the execution.
Witness to a document has an important role, in addition to proving of
execution of the document, to avoid the possible claims, dispute or litigation.
Owner of adjoining property as witness to a sale deed, possible legal heirs of the
executant as witnesses to a settlement deed, partition deed shall prevent the
future claims, disputes and help to prove the possession of the executant and
ensure the peaceful and quite enjoyment of the property by the claimant.
Identifying Witness
The person who signed as witness on the second page of the document at
the time of registration of the document is known as identifying witness. He
certifies, before the registering authority, that he knows the executant personally
and the executant is who he claims to be. In other words, the identifying witness
acts as a human identity card.

45
 Probable claims
Heirless property (Probable Claim)
A set of documents related to a property was produced to a proplawyer for
perusal and opinion on title. The client proposed to buy the property. On perusal, it
was found that the property was originally owned by one Mrs.Muniammal who
acquired the same vide a sale deed in the year 1932. The person who now claims
the ownership states that the said Muniammal died in 1945 issueless and intestate.
He is the grand son of only brother of Muniammal. The land records in revenue
department stands in the name of Muniammal, EC also reflects no transactions on
the property.
Here, the title and root document are found. The question is
 How, when and where the property and its ownership devolved?
 Who is or are all the present owners?
 What are the possible claims or challenges in the property?
It is understood from the non mutation of revenue records for a long period
that the said Muniammal died intestate and survived behind none and she might be
Hindu. On her death, her property should have devolved or distributed as per
Hindu Succession Act, prior to 1956.
To find the devolution, we should find how she got purchased/ acquired the
property:
 Thorough her husband or funded by her husband
 Funded by her father
If she bought the property with the fund given by her husband, the property
should have devolved on the other heirs of her husband and on the other hand, if
the purchase was funded by her father, the property would have devolved on the
other heirs of her father.
In this circumstance, to confirm the title, following issue or questions are to
be raised and answered.
 Who had funded?
 Who are all the heirs of the person who funded and arranged the buying of
the property in the name of Mrs.Muniammal?
Hence, it is to be advised to the client to insist the present owner or seller to
prove the title by giving answers affirmatively to the above questions.

46
Great Grand Heirs property (Probable Claim)
On perusing the set of documents pertaining to a larger extent of lands
comprised in various survey numbers of a village, it is found that one
Mr.Palavettan bought many larger extents of lands, run into thousands of acres in
the year 1875, yes 1875 and not 1975. Later, in 1900s, he had sold or donated
some 1000 of acres to various persons, endowments. One of his son donated 100
acres for maintenance of a temple.
On going through village account (Gram kanakku, adangal), A – Register of
the village, pattas have been issued available in the names of Palavettan, his son
Govindan, a mutt, a temple and many individuals. Now, the persons, those declare
as great grand children and grand children of Palavettan also claim the ownership
of lands which are still in the name of Palavettan. Now, no doubt, that Palavettan
enjoyed many lands, sold, gifted or alienated some extent of lands and remained in
ownership of unalienated lands and it might have devolved on his heirs.
Now, considering the longer period of about 150 years, he might have many
legal heirs and all those may claim share and interest in the remained property.
Moreover, during the past 100 years, many reforms had taken place in the
field of land administration, many settlements, enactments, land ceiling were made
which might have taken the ownership from the said Palavettan and his heirs.
On enquiry by the client, most of the lands which are under claim and
scrutiny are abandoned one and occupied by individuals. It is also found that the
lands records are also not updated which implies that revenue department did not
get any info about legal heirs and hence could not proceed further on arriving a
settlement. Due to the longer interval, Tahsildar may not be in a position and only
a jurisdictional civil Court is to decide the matter regarding the legal heirship.
The client is advised to insist those who claim heirs of said Palavettan to file
a suit for declaration of title and then to proceed.

47
 Various disputes
Dispute over size, boundary, location
On some properties, plots of unapproved small layouts, following type of
disputes may arise. The land might be rightly described, perfectly identified. The
size, shape and dimension of the land or property also perfectly match with the
description. One shall think that there may not be any challenge or disputes over
the plot or land. But on reality, the owner of the plot may face the case charging
that he has encroached some portion of neighbor plot or the abutting road.
A man purchased a plot bearing No.2 from the above layout and as per the
description of the property, the plot is perfect. The property is described as
follows.
A vacant plot bearing No.2 of xxx sq.ft bounded on the North by Street,
South by Plot #3, East by Street and West by Plot #1

The above description Other lands

of the plot #2 perfectly Street
matches with the layout

Other lands
drawing and also on the 1 2 4
actual field.

One person bought the said plot 3 5

#2 and kept it vacant. Later other
persons bought plots #4 and 5 built
houses in their respective plots and then another bought plot #3 and built house;
but the first sold plot #2 was still kept vacant for a long time. Now, the person
who bought the plot #2 wants to raise a building and started to put a fencing. Now
the layout appears as shown below.

Owners of Plots #3,4 &5 accuses

him that he tries to encroach the
space for street. He cries that he is
1 2 4 putting fence as per the measurement
on records and on the other hand, if
he lays fence in line with plot #3, he
3 5
may loss considerable area of land.

What happened? To the street and to the plots? Mysterious, is it?

48
 On verification with revenue records, particularly the FMB (Field
Measurement Book) and on actual measurement of sites, it is found that the plot
#4 and 5 have been shifted towards the street, consequently Plot #3 is also shifted,
wherein a house is constructed, taking Plot #5 as reference. Now, the owner of Plot
#2 wants to put a fencing keeping the edge of Plot #1 as reference, which is right.
Initially, an error has been made in measuring and locating the Plots #4 & 5
which reflected on the location of street and also on the Plot #3. Only Plots #1 and
thus Plot #2 are in right location. On the contrary, the owner of Plot #3, along with
owners of Plots #4 & 5, sued against the owner of Plot #2 charging that he has
encroached the street and thus approach and easement rights are affected.
Thus, a solicitor has to scrutinize the deeds along with layout, if unapproved,
and FMB and then form a right decision.
Dispute over identification
‘A’ bought a plot in a newly formed residential layout. Most of his friends
too invested money in the layout by buying the plots. After around ten years, 'A'
wanted to raise a building in his plot.
On his visit, after ten years, to the layout and his plot, he found that the
boundary stones of most of the plots are removed and thus he slightly struggled to
identify his plot. Finally, by some known local techniques, he identified his plot
and built a house.
Later, his friends and neighbours also slowly started building houses and
understood that ‘A’ had built his house on the space reserved for road which
signified that he could not identify his plot properly in the absence of boundary
stones.
This type of trouble is applicable to both approved and unapproved layouts
and can be avoided by appointing a surveyor and getting his services in measuring
the layout and identifying the plot.
A property lawyer has to advice clients to utilize the services of surveyor.
Dispute over size
A plot of size 60' x 40' formed in layout “AAA” was purchased by one and
when he started to construct a compound wall, the neighbor, owner of adjacent plot
formed in layout “BBB”, started quarreling and charged that the plot owner is
trying to encroach the neighbour’s land. Both the parties brought their respective
documents, which depict that both the parties are right.
On scrutinising the documents, it is understood that the layout containing the
plot was formed over agricultural lands comprised in various survey numbers
owned by different persons. It is also understood that already there was a dispute
over the size of the original larger agri-land and the adjacent land wherein the
layout “BBB” is formed.

49
 The realestatemen while forming the layout, he planned to make all the plots
are of uniform size of 60' x 40' and he could make 40 numbers of that size and two
plots of slightly lesser length on one side.

By hiding the fact of dispute over the boundary of the agricultural land, the
real estate businessmen prepared a drawing of layout showing the size of all the
plots are 60' x 40'.

Without knowing the fact, the innocent buyer bought the plot just by going
through the layout drawing. Even the lawyer, who scrutinized the registered deeds
and documents, could not see this as he does not visit the site and the buyer did not
measure the plot at the site.
While neighbouring parties approached the appropriate civil court for
declaration of boundary, an advocate commissioner was appointed who measured
the layout with the help of government surveyor and the FMB sketches and found
the above facts.
Thus it is understood that the layout drawing has to be verified on the site
and to be compared with the FMB, particularly for the plots formed on the edge of
the layout.

50
 Various Frauds
Let us see, what impersonation is?
One, Mrs.Kanaka purchased a land in Madippakkam in 1987 and she has not
made building. As the plot was vacant for a quite long time, it attracted the land
grabbers.
As a result, they forged a document purported to be the sale deed of 1987.
They also created two fictitious persons, named Mrs.Kanaka and her daughter
Mrs.Murugavalli. Based on the forged document, the impersonated Kanaka made
a settlement deed, whereby she transferred the subject land to the fictitious
Murugavalli, and registered the deed in SRO. This is fraudulent registration.
Now, the original Kanaka wants to cancel the fraud deed.
Another lady, named Mrs.Subhadra, purchased a vacant land in 1990 from
one Mr.Kumar, erected a building thereon and is living in that house. In 2010, a
stranger visited her house and introduced himself as the agent of Kumar who sold
the plot to Subhadra. He showed the Power of Attorney, appointing him as agent.
He also claimed that Subhadra has not bought the plot from original Kumar. As
such the sale became invalid. And he asked her to vacate from house and land.
Later, it is found that the self claimed agent was a fraudulent and the Power
of Attorney was fraudulently registered by impersonation. Now, she wants to
cancel the GPA. Otherwise, the marketability of title shall be in question.
It is not possible to register a cancellation deed unilaterally as in the case of
other deeds. It is considered that a cancellation of registered deed by executants is
against public policy and also felt that by permitting the registration of cancellation
deeds, the vendors or executants shall misuse the provisions and allowing it would
amount to abuse of process of law.
The only remedy to the aggrieved party was to approach the competent
Civil Court, which is lengthier and costlier one.
A curative remedy has been made by Registration department of Tamil Nadu
provides not only relief to the aggrieved party but also prevents further fraud and
cheating of innocent future purchasers. The mandatory procedure confers power of
Executive Magistrate on District Registrar to make inquiry and to pass orders to
annul the fraudulent registration.

51
 Various Frauds - Continued
Impersonation fraud - 1, found by Identity Card details
The documents related to a property were produced to proplawyer for
scrutiny and opinion. From the last document, it was found that the owner is
Mr.G.Balaji, son of Mr.Gopal residing at Chitlapakkam. He has produced a
identity card whereby it is shown as his name is G.Balaji son of K.Gopal.
The previous document, a sale deed, was studied. The claimant (Purchaser)
of the said deed was Mr.G.Balaji son of S.Gopal resident of Sithalapakkam.
On further verification, it was found that the said G.Balaji of Chitlapakkam
has self claimed as the owner of the property with malafied intention and tried to
sell the same.
The lawyer has to scrutiny the id card for expansion of initial, address and
all comprehensively.
Impersonation fraud – 2, found by Identity Card details
A landed property (vacant plot) was purchased in the year 2002 by one, a
native of Thirunelveli and for the time being residing at Chennai (Arumbakkam).
His id card is driving license with No.12345 issued at Thirunelveli.
Later, in the year 2008, he decided to sell it and hence he appointed an
agent, ‘X’, a resident of Arumbakkam and executed a GPA (General Power of
Attorney) wherein the id of executant is shown as a driving license with No.1177
issued at Chennai in the year 2002.
Based on the GPA, Mr.X tried to sell vacant plot and gave copies/ Xerox of
all documents to the probable buyer, who had given it to a prop-lawyer.
The lawyer on seeing the two different driving license for a same person got
a suspicion that the person who appointed Mr.X as his agent and executed the GPA
may not be the same person who has originally bought the piece of plot with id
card #12345 as one person can’t have two licenses.
The lawyer advised the client accordingly.
Fraud – 3, found on Comparison with electoral roll
In a preventive check, while scrutinizing the required documents of a
property, it is found by a proplawyer that details about voter id card as mentioned
in a document about the executant are not correct on comparing with the electoral
list as available on the internet.
Accordingly the client was advised.
In a nut shell, it is advised to be vigilant about the frauds and impersonation
and the details are to be verified with websites, QR code regarding the voter id,
aadhar cards, etc. The family cards are not accessible at present though available
on net.

52
Fraud – 4, found by Recital in the GPA
A woman bought a plot in Madippakkam in the year 2003 and now she lives
in Ahmedabad and wants to sell the plot in the year 2016 and hence appointed one
as her agent to deal with the said vacant plot.
The lawyer place three basic questions:
1. What is the reason behind the sales?
2. What is the reason for appointment of GPA?
3. What is reason for appointing the particular person as her agent?
The reason for first question is (might be), she bought the property long year
back, now she lives at a distance place, the property being a vacant site may not
fetch any considerable yielding and hence she might have decided to dispose it.
This gives convincing answer.
As she resides at Ahmedabad, a distance place from the property location of
Chennai, she might have thought that it was prudent to appoint a suitable agent.
Thus second question also answered.
As far as the third question concerned, there is no pre-existing relationship,
between the owner and the agent, could be established from the documents
available before him. Hence, he decided to dig the matter further in order to form
an opinion. He compared the LTI of the women as available in the sale deed of the
year 2003 and that in GPA of 2016 and found those LTIs are not the same.
That is a woman tried to sell the property of another woman and cheated
others. The matters subsequently happened are irrelevant to and not under the
scope of our discussion, hence we leave here itself.
Fraud – 5, found in the GPA
In the year 2004, a man bought a large piece of land at Sriperumpudur and it
is understood that later in 2007, he decided to sell the same and accordingly he
appointed an agent vide a GPA and registered the same in 2007 in the
jurisdictional SRO, where the property is situated. Both the documents, viz., the
original sale deed and the GPA, were registered in the same SRO and both were
affixed with photo of same person. The agent tried to sell the land. The purchaser
got the copies of the documents from the agent and in turn gave it to proplawyer
for opinion on title of the property.
The lawyer, on scrutiny of the documents, found that LTIs available on these
two documents were different. Hence, he advised the client to contact the owner
and confirm the appointment of agent for sale of property.
It was further found that the original owner had not proposed to sell the land
and not appointed any agent. Somebody fraudulently registered the impugned GPA
and tactically managed to affix the photo of owner on GPA during registration.
Then the owner of the property lodged a criminal complaint and the
consequences are outside the scope of this book.
53
Fraud – 6, found on Scrutinizing a death certificate (Xerox),
A Xerox of a death certificate studied wherein it is certified that Mr.A
expired on 21.05.2002, it is also noted that a sale deed was executed and registered
by the said Mr.A along with his brothers on 15.05.2002.
It was doubted why Mr.A died within six days from the day of registration.
So again the Xerox of the death certificate was scrutinized, whereby it was found
that the date ‘21’ written in different colour (Xerox), then the legal heir certificate
was brought from the clients and studied, there also the date ‘21’ had a correction
and was entered in a different colour and the handwriting also differed from the
rest of certification matters.
While inquiry, it is found that Mr.A died on 06.05.2002 and his brothers
sold the family joint property and impersonated Mr.A without the knowledge of
legal heirs of Mr.A
It was advised to get the ratification deed executed by the legal heirs of
Mr.A and hence possible challenges and the claims were avoided.
Fraud – 7, found by Legal Heir Certificate
A client proposed to buy a flat from a builder approached a property lawyer
and produced copies of all documents whatever the builder gave to him.
The lawyer arranged the documents and deeds in chronological order and on
going through the latest title deed, he got struck up where the evolution of property
was described.
It was recited that the present owner, who is selling the land, has got the
ownership right intestate from his maternal aunt [mother’s sister]. It was
understood from other documents that his aunt died heirless and originally got the
property and its ownership from her husband by succession.
Normally, if a Hindu female died intestate and heirless, her property shall
return back to the origin, her husband herein. As such, the lawyer got doubt and
verified the legal heir certificate wherein he found that the name of self claimed
owner is written in a different coloured ink and the handwriting also differed.
That is to say that his name was fraudulently inserted in the legal heir
certificate.
Hence, the lawyer advised his client accordingly.

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 Scrutiny of deeds
1. Name of deed
There are various deeds available whereby an immovable property could be
transferred. One may think what is significance in verifying the name of the deed
that is being scrutinized.
There are possibilities of errors in mentioning the name of deed. It may be
typographical error or inadvertent one due to copy and paste or oversight error.
These errors shall not change the intention of the deed.
When the deeds are prepared fraudulently by impersonation or any other
deceits, there is a possibility in committing mistakes called psychological mistakes,
which may include wrongly entering the name of the deed.
As an expert, the lawyer can identify the nature of error or mistake and the
knowledge for the same he could gain by experience.
2. Place of execution
It is the place where the executant has signed all the papers/ pages of the
deed and acted as per the deed.
If the address of the executant differs from the place of execution, the
solicitor has to place some vigil on the scrutiny as there is a possibility for
impersonated execution.
3. Date of execution
The date of execution by the parties is to be noted. If the deed is executed by
many persons at different times all the dates are to be noted by the lawyer.
(Registration Act, Section-26 permits the execution at different times)
4. Date of registration
Normally, the executed document has to be registered within four months of
time from the date of execution. If the deed is executed by several persons at
different times, the deed can be presented for registration within four months from
the date of each execution.
Here the solicitor has to verify whether the document has been registered
within the stipulated period.
5. Name of executant(s)
Normally, it is expected that the executant acquires the right over the
property through its previous deed. So the in order to ensure the link, the solicitor
has to verify the name of claimant in the previous deed. If the name, expansion of
initial, father name and the identity of the executant of present deed perfectly
match with that of claimant of previous deed, one can say the title of the property
passed from previous deed to present deed.

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 If any change in the name of executant in the deed on hand from the name of
claimant in the previous deed, the lawyer has to scrutiny the deed with a view to
find the reason for the same.
Generally, in the event of death of claimant of previous deed, his legal heirs
would execute the present deed on hand which is being scrutinized. In such
events, death certificate of the claimant of the pre-deed and his/ her legal heir
certificate are to be studied and scrutinized. It is also to be checked whether all the
heirs executed the present deed on hand. In rare cases, where Court Decrees might
have put the executant in possession of the property, the decrees have to be
scrutinised. In any cases, the reason for change has to be scrutinized and a
convincing fact to be found.
6. Age of executant(s)
Like the name, the age of the executant in the present deed is also to be
compared with that of the claimant in the previous deed. In normal case, it may not
affect the title of the property much. However, it may be noted that in the deeds
prepared fraudulently and registered by impersonation, the age of fraudulent
executant shall be mentioned. If any abnormality is found, that is wide difference
with the age of original owner, that has to be investigated.
7. Address of executant(s)
If the address of the executant differs from the place of execution, the
solicitor has to place some vigil on the scrutiny as there is a possibility for
impersonated execution.
If the address of the executant of present deed and that of claimant of
previous deed are same but it is outstation, now also the lawyer has to place more
vigil on the deed, as there is more possibility of fraudulent and impersonated
execution without the knowledge of the original owner. Already we have discussed
what impersonation is?
8. Identity of executant
Like the name or address of the executant, the identity card is also play a
very good role in finding the genuineness of the document. Hence, the proplawyer
has to scrutinize the deed in comparison with the details found in the identity card.
Readers are advised to read importance of perusal of identity card given in Various
frauds found by identity card details. The lawyer has to scrutiny the identity card,
expansion of initial, address and all comprehensively.
Example
On seeing two driving licenses on two deeds, got suspicion as one person can’t
have two licenses and advised the client accordingly.
9. Name of claimant/s s (Verify with successive deeds)
The name of the claimant and his father/ husband also has to be noted and to
be verified with the executant of successive documents. If the convincing reason
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 to be found on any difference from successive executant, one can proceed further.
Otherwise, the process of scrutiny and thus the proposal of purchase by the client
may be made a halt.
10.Age of claimant/s (Compare with successive deeds)
For the reasons stated above under the heading “Age of executant”, the age
of claimant also has to be compared with the successive deeds.
In a search, it is observed that the age of claimant is subsequently reduced
after some years in a sale deed when he sold the property. On further scrutiny, it is
found that the deed is a forged one and the person has represented as claimant of
previous deed.
11.Identity of claimant
For the reasons stated above under the heading “Identity of executant”, the
identity of claimant also has to be compared with successive deeds.
12.Witness
The proplawyer shall have good knowledge about witness, their role during
execution of document, importance of witnesses.
Details of the witnesses, attesting and identifying, shall be legible and
readable from the document. It shall contain name, father/ husband name, clear and
full address of the witness such that the witness shall be easily identifiable,
traceable and approachable in order to prove the execution of the document and
also the possession of the by the executant in case of any challenge, claim or
dispute. As such, the witness shall not be a ‘on the spot’ or ‘caught’ witness, who
are usually available on the verandah/ payal of the sub registrar office.
13.Whether executant has absolute marketable right/ title?
Now, the proplawyer has to find whether the present owner has absolute
right of ownership over the piece of property and it is marketable and clear.
For which, investigation has to be made to ensure that the property is
properly devolved as per succession or transferred as per Acts on the executant and
the uninterrupted continuous possession to be ensured.
It is advised to read the matter regarding title to have knowledge about
Marketability and clearness of title
14.Whether he is in exclusive possession?
Actual possession means a right to have and retain the property until it is
challenged and the contrary is proved. To know about possession, separate article
given in previous pages may be read.
15.Devolution of property
Now, the proplawyer has to find how the executant got the property?
By any act of the parties viz., SD, Will, settlement, release, partition,
succession, gift, assignment, decree, adverse possession or by the operation of law,
the present owner might have got the ownership. To find whether the property has
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properly devolved on or transferred to the executant, the present deed and its
previous documents are to be scrutinized.
16.Reason for/ Circumstances behind transaction
The proplawyer shall ensure that the circumstance behind the transaction is/
was clearly spelt out in the deed. In the absence of mention or the ambiguity or non
clarity about the reason for transaction, one may expect some challenges.
For example, wife of the executant may challenge the document that it was
made to get executed by his husband by the influence of alcohol.
If the document is settlement deed in favour of only one heir, the reason for
exclusion of other heirs must be spelt out, otherwise those other heirs may
challenge that the deed was got executed due to influence.
If it is a sale and the reason is found that family loan or to meet the family
expenditure, to the possible extent, the deed shall tell the loan account number,
bank, etc or the detail of expenditure. Otherwise, the other members of the family
shall raise problem on the ground that they had no loan at all or they were not in a
position to meet any expenditure and the reason for sale as mentioned in the sale
deed is invented for the purpose of the document.
As such, the lawyer shall see the sound reason for transaction, if it is not
clear, he may ask his client to find or clarify with the seller the reason and no
challenge over it. If the deed was executed long back, it may not be taken so
seriously as the possibility of challenges got distinguished.
17.Consideration
Consideration is the price of property in case of sale deed. It might be paid
or promised to pay or partly paid or promised to pay the remaining. The unpaid
seller has lien over the property. The consideration may be made before execution
of (sale) deed, or at the time of execution of deed or at the time of registration of
deed in presence of registering authority.
Consideration is the essential part of a transfer of property. However, the
release deed may or may not have consideration in money form. The Gift and
settlement has love and affection as its consideration.
The prop-lawyer has to ensure that the consideration is rightly calculated and
paid fully and there is no further demand from the executants. If the consideration
is paid in presence of registering official, the lawyer has to verify whether the Sub
Registrar has made endorsement to this effect.
Though the amount of consideration is to be decided by the parties, it
becomes the duty of the lawyer in order to safe guard the client from the future
nuisance challenges by the heirs of the executant that the lower value has been
fixed by the claimant and the claimant was made to accept by force or false
representation or by influence of alcohol.

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18.Exclusion of possible executants
If the property is ancestral one, the root is remote and involves many
branches the devolution of title has to be perused according to succession law and
quantum of share in property to each branch has to be carefully calculated,
otherwise it will steer to the problem of facing the dispute by possible coparcener.
In addition to this, the facts discussed in reason for transaction and
importance of witnesses is also to be kept in mind while perusing the documents.
19.Convince on non availability of certain data
Sometimes, some miscellaneous documents like death certificate, legal heir
certificate may not be produced by the client or the present owner of the property
and may not be available even after making search in relevant offices.
In such a situation, solicitor may make a decision, depends on the time
passed, circumstance and also strength of other available documents, whether the
non availability of such certificates/ documents would touch the clearness or
marketability of title or not.
20.Endorsement by SR
While registering the deed/ document, the registering authority (Sub
Registrar) usually endorse details about the following.
i. Presentation, the person who presented the document for registration and
the time and date of presentation.
ii. Execution admission, the person who admitted the execution of document.
iii. Claim admission, the person who claimed the property under this deed.
iv. Witness (Identity), the details about the identifying witnesses.
v. No. of copies registered along with the original deed.
vi. Scan, doc. No, book no., volume, page no. no.of pages.
The proplawyer has to calculate the stamp duty, registration fee in relation to
the value of the property. Mostly, stamp duty is paid vide non judicial stamp
papers, but in some cases, the duty might be paid in cash or through demand draft
at the time of registration, which the sub registrar would certify the same under
section 42 of Registration Act.
The purpose of calculating and verifying the stamp duty is to ensure that the
document is a genuine one and not forged or fabricated one. The cheaters would
create the document fraudulently with lower valued stamp papers, wherein the
exact wording of the registered document is reproduced making the reader to
believe that the document is original but in fact the original document might have
been deposited to any bank thus created equity mortgage or lien. The fake
document might also be produced without changing the names of parties but with
additional facts which are not available in the original deed, thus the document
would be reflected in the encumbrance details.

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 The number of copies also to be verified, because the duplicate copy is also
similar to original and as such, the one can create charge or lien with the help of
duplicate copy.
21.Schedule of property
The property must be described in schedule of the deed as advised in the
Registration Act. The details how to describe a property is already dealt in
previous pages of the book. If any inadvertent errors is noticed on comparison
with recital of the deed or with any other documents, and it touch and alter the very
root of document, the error has to be corrected.
The schedule is to be verified with drawings, field measurements, maps and
boundaries. Any inaccuracy is to be corrected by rectification deed. The
rectification deed is one which corrects the inadvertent ministerial errors found in
previous document. The error includes negligent clerical error, typographical error
or C&P (Copy and Paste) error.

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 Role of Lawyer
on receipt of documents
The property lawyer on receipt of the title deeds and related documents
pertaining to the property shall sort the documents according to its kind and then
arrange them kind wise in chronological order and then number them.
The kinds of documents are
 Title deeds : Those documents which transfers and confers the title are
called title deeds. Viz, Sale, partition, settlement, release deed, etc
 Secondary deeds:The agreements, will, court decrees, Power of Attorney.
 Approval orders : Layout approvals issued by DTCP, CMDA, Local
Administration authorities
 Revenue records: Patta, Chitta, village accounts,
 Miscellaneous documents: Encumbrance certificate, limitations, affidavits,
restrictions, etc
After arranging the documents in chronological order, the solicitor shall make
tabulation enlisting all the documents and entering its details viz., date of
execution, name of executant, name of claimant as follows.
Sl.No Kind and name Date of Name of Name of
of document execution executant claimant
1.
2.
No other details are needed at present. This table shall give a fair and
abstract idea about flow of title. On tabulation, the lawyer shall verify whether
the claimant of a particular document has become the executant of successive
document. In other words, the executant of a document is normally claimant of
previous document.
If executants of all the documents enlisted as above were the claimants of
its previous documents, one can primarily say that the link documents are
available and the flow of title are clearly evidenced, however subject to the
scrutiny of the documents.
On the other hand, if the executant has not claimed the property by the
previous deed, the reason for the same has to be found out. The previous claimant
might be died and his successors or heirs might be transferring the property in
the deed on hand. It is to be scrutinized and marketability of title is to be ensured.
After completing the tabulation as above, each deed and document shall be
studied in detail and scrutinized. The techniques and reasons for scrutiny are
explained in previous pages and based on which genuineness of the deed can be
found, then the proplawyer has to discuss probable challenges, disputes, etc and
then form a opinion on flow of title and its marketability.

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 How to form opinion?
While reading the deed, the reader shall apparently understand and form an
opinion that the executant has executed the deed out of free mind without coercion,
influence. It is not sufficient that the deed has a mention about the free will and
wish of the executant.
How the vendor has got the ownership is to be identified. Whether it is a self
acquired one or ancestral one, if it is a ancestral, whether he has got partitioned the
property are the questions to be asked and the answers are to be found. The
ancestral property becomes a self acquired one on partition of the same. Otherwise,
it is to be checked whether the vendor has 100% share over the property or lesser
undivided share. For this, the proplawyer has to scrutinize the present deed and its
previous deeds.
By any act of the parties viz., SD, Will, settlement, release, partition,
succession, gift, assignment, decree, adverse possession or by the operation of law,
the present owner might have got the ownership. To find whether the property has
properly devolved on or transferred to the executant, the present deed and its
previous documents are to be scrutinized.
Root document is one from which the title devolves ownership and
documents prior to this document are not needed. There is no definite procedure to
what extent and what period, the previous deed are to perused. However, it is
advised as a general rule to scrutinize the deeds for a period of 30 years. If the title
is not ascertained within 30 years or no transaction has happened in last 30 years or
root document is beyond 30 years, it becomes necessary to make search and
investigation beyond 30 years up to the root of title and peruse the same.
For example, in 1972, a woman acquired a land, constructed a house in
1974, and later expired in 2002. Her one son released his half share in favour his
brother in 2004. Now, the root document is the document of the year 1972, which
beyond 40 years. Hence, the search has to be made up to 1972
Next, nature of right/ ownership, the seller/ owner has over the property also
to be found out. The ownership may be absolute or limited or conditional. Absolute
means complete ownership which allows the owner to alienate the property.
Limited ownership means nothing but lifetime estate, he has no alienation rights as
such the owner can enjoy the yields of the property and cannot mortgage, create
any charge, lien or encumbrance over the property or sell the property.
Genuineness by witnesses
The next important, usually avoided, stage of scrutinizing is perusal of
witnesses. They play a very important role in proving the execution of the deed by
the executant in clear mind and also act as a human identity device. They shall
prevent any claim, disputes, challenges and hence it becomes necessary to check

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the relationship between the witness and the executant or claimant. The importance
of witness is clearly discussed previously under the title scrutinizing of deeds and
under the heading witness.
Probable challenges, disputes, claims
Next, the proplawyer shall imagine whether the property may subject to any
challenges, by the legal heirs of executant in future, based on the contents of the
deed on hand, the devolution of property or from the heirs of previous owners.
The reason for deed is also to be studied, it may be noted that the cost of
registration for Settlement Deed and General Power of Attorney (GPA) are
comparatively very less and for that reason more cheatings and frauds are
happened through settlement deeds and GPA. In case of settlement deed, the
reason for excluding other deserving persons/ heirs is also to be found and in case
of GPA, special scrutiny is needed on reason for non availability of original owner
and circumstance behind appointing agent. Though it is discussed under the title,
“Scrutiny of Deeds”, it is again told here considering the importance. If the
proplawyer smells any discrepancy, the client may be advised so.
The probable disputes by adjacent property owners are also to be imagined
by comparing the schedule of the property, field measurement record, with the
documents of the adjoining property. In normal practice, the neighbors won’t give
the copies of their title deeds and hence the client may not be in a position to
produce the same for scrutiny and opinion. We can get certified copy of documents
of adjoining property from the registrar office. In such an event, it is to be advised
to the client to measure the boundary of the property in presence of the owners of
the adjoining properties.
Flawless document
Wordings of the document shall be carefully scrutinised as it communicates
the motive of the deed. It shall not give any room for ambiguous matter or not be a
matter of interpretation.
It shall not contain any error in it, otherwise it has to be advised to get it
corrected by rectification deed. Sometimes, one part of a deed may be written in
contrary to other part of deed, which may make the deed voidable.
For example:
This settlement deed was executed by a father in favour of his daughter
excluding his son. He had stated that the transfer of property shall take effect after
the lifetime of the executant. He further added a clause, as usually available in all
sale deeds, that there is no charge, lien, encumbrance in the property and assured
that he would clear them, if any, found later.
It is clear that the transfer shall take effect only after the life time of the
executant and in the event of finding any lien or charge or encumbrance, the

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promise of clearing the same by the executant would not be possible when he
would not be alive.
Thus the above guarantee clause is contrary to operative clause which shall
direct us to a decision that executant had not understood the meaning of the
contents of the settlement deed or in fact he did not study the document, which
shall result in invalidating the document.
Tracing of title
Now, the title to be traced from the root and it is to be found whether the
title is devolved properly on the present owner. Root document is one from which
the title devolves ownership and documents prior to this document are not needed.
There is no definite procedure to what extent and what period, the previous deed
are to perused. However, it is advised as a general rule to scrutinize the deeds for a
period of 30 years. If the title is not ascertained within 30 years or no transaction
has happened in last 30 years or root document is beyond 30 years, it becomes
necessary to make search and investigation beyond 30 years up to the root of title
and peruse the same.
For example, in 1972, a woman acquired a land, constructed a house in
1974, and later expired in 2002. Her one son released his half share in favour his
brother in 2004. Now, the root document is the document of the year 1972, which
beyond 40 years. Hence, the search has to be made up to 1972
The client to be advised to see all the documents in original, if the vendor
does not want to give them, being original, to the purchaser (the client here), the
lawyer has to ask the vendor to bring the original deeds and to produce the same to
the lawyer in order to verify and form a conclusive opinion.
Conditional transfer
Sometimes, the property is transferred on any condition . if any condition is
found in a document, such conditions are to be examined. Sometimes, a condition
may be imposed that the claimant has to pay certain amount periodically to the
executant or to any person nominated by the executant as maintenance. In this
case, if the claimant does not pay the maintenance as directed in the document, the
transfer of property by that document becomes invalid.
The condition may be imposed restricting the alienation for a certain period
or till the happening of a certain/ specific event. In this case, validity of the
condition and the happening of a certain/ specific event have to be examined.
Time of effect
In some other cases, the transfer of property vide a deed may not come into
effect immediately and it may transfer to the claimant after the lifetime of
executant or on happening of a certain/ specific events. The client may be advised
to verify the status of the condition and thus the validity of the deed.

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 For example, a property may be attached with (on sale of) another property
as an guarantee. If the buyer of the property is selling suffering from any damages
due to inadequacy of the title, the seller has to rectify the same in normal practice,
but in this case, the buyer can acquire the title of the attached property as an
indemnity or relief for damages. This guarantee may be for twelve years.
In this way, the buyer is not the owner of the attached property till the
damage is happened and as such he cannot own or sell the same.
In some settlement cases/ gift cases, the transfer may take effect after the life
time of the executant. Here, the proplawyer has to ensure that the present executant
has got ownership and there is no condition restricting him away from alienation.
Lien, charge
Some transactions are unregistered as such they wont be reflected in
encumbrance certificate. Just a deposit of title deed is enough to create equity
mortgage which does not require any instrument or its registration. Many banks
advanced and advances loan against the property on deposit of original title deeds.
Like this lease, easement, any order of a Court are not registered. Wills/ codicils
are also need not be registered and as such not reflected in encumbrance certificate.
Hence, it is advisable to inspect the documents in original and also to
publish notice, if needed, in local news paper and ask for any objection in order to
get convinced that the property is not affected by or subjected to any claim due to
any lien, charge, etc.
Forming of opinion
After going through all documents and deeds and seeing them in original,
the solicitor can understand whether the property has devolved on the present
owner properly, the title has transferred to him or herself legally.
Then the solicitor shall find any restriction available or imposed on usage of
the property and condition to alienate the property. After ensuring the same, the
lawyer shall check for probable dispute, challenge, claims, frauds, etc on the
previous deeds for which lien, charge, encumbrance are to be scrutinized.
The lawyer shall have to confirm there is no proposal by government for
land acquisition for any project or any public purpose or any proceedings under
land ceiling Act or any other Acts. For which, the lawyer may have to get
information from revenue department, Taluk Office. And then finally, ownership is
to be ensured.
If findings on all the above are in the affirmative, jurisprudence/ judicial
conscience shall form an opinion that the present owner is conferred with
ownership rights and the title is clear and marketable.
If any finding is negative, the lawyer shall have to take a decision, as
discussed in this book at various places under various headings in order to advice
the client suitably and accordingly.
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Making of Report of Opinion on Title
After framing the opinion, the prop-lawyer has to convey his formed opinion
on the title of the property in a report form, which may contain the following:
 Description of property
 List of documents scrutinised (in original and Xerox)
 Devolution of title of property
 Probable challenges (Optional)
 Opinion
In addition to this, the lawyer has to issue a covering letter addressed to the client
stating the short version or abstract of his opinion in aout 25 words duly enclosing
the report.

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