by Aggarwals Associates | Feb 18, 2021 | General
There are many people who may be unaware of the fact that if any person wants to use agriculture land for any other purpose than farming then he/she is required to take the permission from authorities for the same. Even a farmer cannot use agriculture land for any other purpose than farming. The major reason behind this is that India’s economic factor largely depends upon agriculture and unless the land use has been changed by owner, then all the lands will continue to falls under the category of agriculture.
Secondly, tax imposition as we all know that there is no tax on agriculture land but if owner started to use the land for other purposes like residential, commercial and industrial so on then tax liability is imposed on the owner by the authorities. So, if you want to use your land for other purposes then you are required to obtain Change of Land Use (CLU) by following prescribed guidelines. Here are the highlights of the whole process of CLU.
Where to apply?
Land is a subject matter of State list as per Indian Constitution so States are empowered to make rules relating to the land issues. All the states have set their own set of regulations for conversion of land. Some states authorized Revenue Department to issue CLU, whereas many states put this responsibility on Planning Authorities for instance PUDA (Punjab Urban Planning & Development Authority) is empowered to issue CLU in Punjab.
The applicant desiring so will have to submit an application to the Concerned Authority, District Collector, The District Commissioner, the Sub-Divisional Officer or the Tehsildar of the concerned area to get the certificate of land use. The land owner has to approach the District Magistrate or the District Collector to receive the conversion certificate in absence of any specific authority.
Step wise process to apply for CLU:-
Here are the various steps to be followed to get conversion certificate:-
- Approach the concerned Authority or Department: – The first foremost step to the approach the concerned Department or Authority for conversion of land. The applicant will have to submit an application for conversion along with supporting documents.
- Payment of fee: – Once the application for conversion got accepted then applicant is required to pay requisite fee. The receipt of payment will be issued by the concerned Department or Authority to the owner.
- Physical inspection: – After verification of the application, the concerned Authority or Department will forward the file to the concerned officer for physical inspection of the site and examination of the documents.
- Issuance of certificate: – Once the concerned Authority or Department got contended that all the criteria are met and owner is eligible for conversion then they will issue a certificate of land use.
- Entry in revenue records: – On completion of conversion, the Revenue Department would make entry in the records to reflect the change of land use.
List of required documents:-
The documents supporting your claim are required for the conversion of the land. The requirement of documents depends upon the land and proposed change. The different states have prescribed different documents for conversion of land. Here is the list of some important documents:-
- Copy of sale deed
- Latest copies of Jamabandis
- Identity proof
- Copy of partition deed if land has been inherited
- Copy of mutation certificate
- Copy of survey map
- Receipt of payment of land revenue
- Proof of occupancy
- Record of rights, tenancy and crops
- Letter of authorization in case of co-share holders/joint owners of the land
- Non-encumbrance certificate
How much is the fees?
The charges for change of land use may vary from state to state, district to district in a state and area to area in a district. In New Delhi the conversion charges are on higher side, whereas the Bihar Govt. levies 10 % of the land value as conversion fee. It is relevant to point out here that charges are higher for converting agriculture land into commercial or industrial land as compared to residential change.
For instance, in Punjab processing fee for first acre is Rs. 5000/- and every subsequent acre the fee is Rs. 1000/-. The rates for CLU are classified according to the property and locality in Punjab.
Can we apply via online mode?
Majority of the states issue land conversion certificates by hand. But the states like Punjab, Andhra Pradesh, Karnataka, Telangana and West Bengal are positive in adopting the online mode for this process.
How much time it takes?
In states where the whole process is carried out via online mode, it takes one month to get the certificate once the applicant submits his/her request. On the flip side, in state where it is done manually may take several months. The person intended so must arrange all the required documents in advance before making application so as to avoid delay in the process.
How much time is allowed to make changes after obtaining CLU?
Once the owner got conversion certificate he/she has to make changes in the land within the period of one year on receipt of certificate. On not making changes within the prescribed period the issued certificate will be withdrawn i.e. stand cancelled and paid fees will be forfeited.
Why it is required so?
It is always advisable to be ready before the problem may arise. It is truly applied in the case of Change of Land Use just to avoid the future hassles. For instance, if any builder wants to construct residential building project on the agriculture land then it is necessary to obtain Change of Land Use. As for RERA approval of the project it is also required to submit CLU if use of land has been changed for the purpose of project. In the absence of CLU the concerned authority in the area has right to not only impose penalty but also to demolish the property if conversion is not done after numerous warnings.
So, to avoid these obstacles it is recommended to obtain conversion certificate before starting the use of the land for other purposes.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Feb 16, 2021 | General
Buying or owing a house or property might be in the wish list of many people. But at the same time this dream of wish list may become worst nightmare if all the details related to property have not been fully checked before purchase. It is highly advisable to check all details associated with title of the property before buying it. A person may face legal as well as financial difficulty in case of defected title of the purchased property. With the help of title verification person so intended to buy property can scrutinize that seller is real owner of the property and the same is free from any kind of encumbrances.
What is Title Search Report?
In simplest terms, title indicates rights arising out of lawful ownership of the property. Clear title is considered to be a conclusive proof of ownership. In real estate transactions title search report is prepared to ensure clear title to avoid any future hassles. Title verification is a process of checking and verifying property documents to ascertain the legal ownership of the property and to find out any defects in the title of the property. It is the lawyer dealing with real estate matters who prepared the Title Search Report. Such report is prepared on the basis of verification.
Who may require it?
The following categories of individuals or entities may need the title search report before buying any property:-
- Investors who are intended to invest money in the real estate.
- Companies interested in making real estate transactions.
- Banks and other financial institutions.
How much is the extent of verification?
The extent of the verification of the title depends on the time period of transaction i.e. whether it is for long term or of short period. The title verification is of two types. First is full search and second is limited search. As per full search the chain of ownership of last 30 years is taken into consideration while making verification. Full search is opted for sales and long term lease. On the flipside, the record of last 15 is required to be checked under limited search. This verification is suitable for transactions like short time lease and licence.
What is to be checked and verified?
Details of ownership: –
It is one of the key components of the search report. To check and verify the ownership plays pivotal role before making any property transactions. It is required to check whether vendor of the property is an absolute owner of the property. The same can be ensured by checking and verifying the documents relating to title of the property such as title deed, sale deed, conveyance deed, gift deed, transfer deed and so on.
The revenue record concerned with the property is also required to be checked by visiting appropriate authorities. Such revenue records include Jamabandis, spot, mutation certificate and so forth.
Chain of ownership:-
It is very common that property might be transacted and its ownership has changed multiple times. Thus, checking the details of past owners is also a prominent factor while verifying the title of the property. Chain of ownership includes past record of the title of the property. It commences from the present owner and ends at the original owner. It is necessary to inspect all the documents relating to the chain of ownership.
Mode of ownership:-
Apart from checking the title of the property it is also germane to check the manner of transfer of ownership. The transaction documents depict the mode of transfer of ownership for instance if property is transferred by way of gift then valid gift deed must be in a favour of the proposed vendor. The title of the property can be derived through any mode such as sale, gift, partition, inheritance and lease so on.
Kind of ownership:-
To know the kind of ownership whether it is limited or absolute is also a part of title verification process. Ownership is said to be absolute when owner vested with possession, right to transfer the property without any restrictions. Absolute ownership is not restricted to any limitations. It is necessary to know for valid transfer that whether owner has right to dispose of the property or not. Revenue records can be considered as trust-able sources in order to determine the rights of the owner.
Type of the property:-
While doing title verification it is mandatory to ascertain the type of property that whether it is govt. owned property and private property. As before transferring any govt. owned property certain permissions are required to be taken. Along with that to know the use of property is also important.
For example in India agricultural land cannot be used for non-agricultural purposes. It is mandatory to obtain Change of Land Use (CLU) before using the agriculture land for commercial, residential, and industrial purposes. This can be ensured by checking the columns of concerned revenue records.
Development and construction:-
If proposed property has some development and constructions then it is needed to be checked that whether construction has been made according to the building and sanction plan of the concerned authorities. Along with that, other details such as approvals for sewage, water, electricity, environment compliances and so on are also to be verified.
Encumbrances:-
It is no secret that property can be used to take loans. The encumbrance charge got created over the property which indicates that property is subject to lien or mortgage and cannot be sold further without prior permission of the lender. It is a revenue department who is responsible to maintain record of the property concerning encumbrances, charges and mortgage if any in favour of any person, bank or financial institution. Thus, by searching these records details related to encumbrances can be received.
Litigation aspect:-
It is also a part of title search because pending litigation on property to be purchased may land the proposed buyer into a trouble. It is advisable to check that any litigation is pending involving proposed property as a subject matter.
What should be included in the report?
The title search report must include some basic components. These are enumerated below:-
- It must specify the details and particulars such as location, measurements relating to property.
- Owner of the property whether it is individual, company, trust and other legal entity.
- List of scrutinized records, deeds and documents.
- Nature of the right of vendor.
- Specify any charge, dues, mortgage, or lien if any.
- Any kind of encumbrances if any for instance unpaid loans.
- Any ongoing litigation in which property is a subject matter if any.
- Any third party interest if any.
- Elucidate if property has clear title.
- Any advice or opinion can also be inserted at the end of the report.
To cap it all, it can be said that it is highly recommended for the investors and companies who are planning to invest their money in real estate. As per new FEMA guidelines now NRI investors can invest in immovable property in India. These NRI investors especially needed search report because of their foreign land residence they are not known to the ground realities of real estate sector.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Feb 15, 2021 | General
Assets belongs to a deceased person can be distributed through two mediums. First is according to the WILL, if any and the other is as per law when deceased person did not provided any document to express his/her intentions. A WILL is a document which depicts the clear idea of intentions of the person to dissolve his/her property after death. The Probate is a certified copy of the WILL which is issued filed by the executor with the seal of court which authorizes to implement the will. WILL probate give legal colour to the WILL.
It is an official document and issued for the purpose of succession. In simplest terms, it can be said that WILL probate is a legal process which facilitates the executor to dissolve the properties of the deceased testator without any hassles.
What does mean by Probate?
Literal meaning of the probate is to prove or validate something. It is a process where court approves the WILL as valid. As per Section 2 of the Indian Succession Act, 1925, “Probate of will, when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.” The person so named to execute the Will is called executor. Once the WILL got the authenticity from the court then it results into certified copy with seal of the court called probate of WILL. The executor got authority to distribute the assets of deceased testator and also to pay off bills and creditors from the estate.
Who can apply for Probate?
Executor named in the WILL can file application for probate. There may be one or many executors in the WILL. In case there are more than executors then probate can be granted to them together when the application for probate is made. Executor need to file an application for grant of a probate under the seal of the court. If there is no executor appointed under the WILL, then court will only issue a simple letter of administration. Probate WILL not be issued in such case.
Procedure for filing a Probate of WILL:-
The process for filing a probate is specified below:-
- The first task is to file application by way of probate petition in prescribed format after 7 days of death of testator. The same must be duly signed and verified by the applicant.
- In application executor has to mention names and addresses of the legal heirs of the testator so that notice can be issued to them.
- Submission of documents supporting claim that testator had free will and genuineness of the WILL like death certificate and other documents.
- On receipt of application court will verify all the documents and call nearest family members of the deceased for claiming probate. And lastly, court will display the notice related to probate of WILL at prominent places for objection.
- In case of objections received by the court then the application will turn into a suit.
- If there is no objection after expiry of 30 days then court will issue probate of Will.
What documents are required?
The following documents are necessary for process of probate:-
- Documents’ supporting that WILL is genuine and testator had free will like original WILL of the deceased.
- The proof of the death of the testator i.e. death certificate.
- Title deeds pertaining to the property mentioned in the WILL.
Which court grants Probate?
The High Court and lower court both are empowered to issue probate. The High Court exercises its probate jurisdiction in case of high value immovable assets. On the flip side, lower court can exercises its powers in a WILL relating to immovable properties of small value.
How much time the process takes?
The probate can be applied after the expiry of 7 days from the death of the testator. The whole process for the probate can be ended within 6 to 9 months. Howbeit, in case of any objection regarding the WILL then it can take long time such as 2 years to complete. The time period for process vary from case to case.
Is Probate mandatory?
No, it is not mandatory always as there are plethora of circumstances which make the probate of Will of zero value. The requirement of probate of WILL depends on State to State. As per the provisions of Succession Act, probate is mandatory for the WILLS made in the jurisdiction of State of West Bengal and metro cities Chennai and Mumbai. There is no restriction of law to get a probate of WILL when it is not mandatory. Howbeit, it is always recommended to file probate of WILL if there are chances of challenging the validity of the WILL in future.
All in all, it would be appropriate to say that probate is nothing just a decree granted by competent court of jurisdiction to declare the correctness and genuineness of the WILL of the deceased person.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Feb 13, 2021 | General
When a person dies without a will with regard to the distribution of his/her assets and property then such a person is said to have died intestate. Hence, the heirs of such deceased person are required to prove their claims relating to the assets or properties. In such circumstances, an heir has to produce either the succession certificate or the letter of administration authorized by appropriate authority. Usually, a succession certificate is the key in the absence of a valid will; it is a primary document through which the heirs can present their claim to the assets of a deceased relative.
What is a Succession certificate?
A succession certificate under the Indian Succession Act is a document which is issued by a Civil Court to the legal heirs of a deceased person. In which the Court gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. It establishes the authenticity of the heirs by indicating the relation of the heir with the deceased. It provides the heirs authority to have assets and other securities transferred in their names as well as inherit debts.
Which Authority issues Succession Certificate?
The succession certificate is issued by a District Judge within whose jurisdiction the deceased resided at the time of his death. In case the deceased had no fixed place of residence, then the District Judge within whose jurisdiction any part of the property of the deceased may be found may grant a succession certificate.
Who can apply for grant of Succession Certificate?
A person who has attain 18 years of age and is of sound mind having interest in the assets of the deceased can apply for a succession certificate.
In case of a minor- A minor can claim succession certificate through a guardian.
Procedure for obtaining a Succession Certificate-
Step 1: A petition is to be drafted to apply for succession certificate. The petition must contain the following particulars-
- A copy of death certificate has to be produced.
- The time of death of the deceased must be mentioned.
- The details of residence of the deceased at the time of death. In case no such address is available, then the details of his property that falls within the jurisdiction of the district judge to whom such an petition is made.
- The name, address and other details of family or other near relatives of the deceased.
- The rights of the petitioner on the assets of the deceased.
- No objection certificate from other legal heirs other than the petitioner.
- Any statement of legal heir who wishes to relinquish his right to the estate, he/she must declare so in affidavit.
- The details of debts, securities or assets for which the certificate is being applied for.
- The absence of any reason to invalidate the grant of the certificate.
Step 2: The final drafted petition duly signed and verified must be submitted district judge in the appropriate jurisdiction after paying the appropriate court fees.
Note- Here, Fee is according to Schedule II of the Court Fees Act, 1870, certain amount is levied as court fee for this process. Stamp Duty may vary from state to state.
Step 3: The District Judge will inspect the petition and if the same is admitted a day is fixed for the hearing and notice of the hearing will be send to whomsoever thinks fit.
Step 4: After hearing all the parties concerned, the Judge will decide whether the succession certificate is to be granted to the petitioner or not. The certificate would mention the powers granted to receive interest or to transfer or both.
Step 5: The petitioner may also have to provide a bond with one or more sureties or any other security if the district judge may require so. It will ensure no possible loss arises out of the use or misuse of such certificate.
Validity of Succession Certificate-
A succession certificate has validity throughout India. In case a succession certificate is granted in a foreign country by an Indian representation accredited to that State then it should be stamped in accordance with the Court Fees Act 1870 to have the same effect in India as a certificate granted in India.
Whether a succession certificate can be revoked?
According to the Section 383 of the Indian Succession Act, A succession certificate can be revoked for the following reasons-
- The proceedings to obtain the certificate were defective.
- The certificate was obtained fraudulently by the making of a false suggestion or by concealment of some important facts from the Court.
- If the certificate becomes useless and inoperative due to any circumstances.
- When a decree or order of other competent court in dealing with the debts and securities of the deceased person renders it proper that the certificate is revoked.
It is marked here that against an order of the District Judge, in the matter of grant, refusal or revocation certificate, a person can approach to the appropriate High Court.
–Shrinkhla
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Feb 11, 2021 | General
How much time it will take to get divorce in India?
Ans: It depends upon the type of divorce whether it is contested or mutual consent. If you have filed mutual consent divorce then it will take minimum of 6 months and maximum of 18 months. In case of contested divorce it may take you a minimum of 16 months to maximum 3 years.
Can my spouse and I file divorce together?
Ans: Yes, you can file mutual consent divorce if you have parted your ways amicably.
Can I take divorce from my wife even if she is not willing?
Ans: Yes, you can file contested divorce on various grounds applicable under different personal laws.
Is it possible to get mutual consent divorce before the expiry of 6 months?
Ans: Yes, as per latest judgement of Supreme Court, you can waive off the cooling period of 6 months by stating the valid reasons for the same.
What documents are required to file mutual consent divorce?
Ans: For filing mutual consent divorce marriage certificate, residence proof and photographs of both spouse, evidence with regard to separate living, details of profession and income of both spouse and details of property and assets owned by the both spouse are required.
How many times I have to attend the court for mutual consent divorce?
Ans: You have to attend the court twice for the purpose of recording the statement in the court. Now so many courts provide the facility of video conferencing, you can record your statement through the video conferencing.
Can I seek divorce under Hindu Marriage Act within one year of marriage?
Ans: No, you can’t file divorce within 1 year of marriage as per Hindu Law. But in exceptional cases High Court is empowered to grant leave to file divorce before completion of 1 year.
Can I seek maintenance in the pending proceedings of divorce?
Ans: Yes, if Hindu Law is applicable on you then you can claim maintenance under Section 24 of Hindu Marriage Act during the pending proceedings of divorce.
Can husband claim maintenance from wife in divorce proceedings?
Ans: Yes, he can claim from his wife during the divorce proceedings if he is unable to sustain himself financially.
When I can marry again after divorce?
Ans: You can marry again after the expiry of appeal period if other party doesn’t prefer appeal to the higher court.
Can I transfer the divorce petition filed by my husband at my place?
Ans: Yes, you can file transfer application in Supreme Court if you want transfer from one state to another. If you want to transfer divorce petition from one district to another then you can file application in concerned High Court.
How can I seek child custody or visitation rights during a divorce case?
Ans: You can seek custody of your child by filing application under Section 26 of Hindu Marriage Act during the divorce case.
I am living in foreign country, can family member appear on my behalf in divorce proceedings?
Ans: Yes, your family member on whom you confer upon a special power of attorney can appear on your behalf.
Where I can file the divorce petition?
Ans: You can file divorce petition one of the four places i.e. place of marriage, place where you both spouse last resided together, place you are currently living and place where the other party is residing.
Can I file divorce on the ground of leprosy?
Ans: No, leprosy is no longer a ground for divorce in India as per latest amendment in personal laws in 2019.
I got divorce in USA, is it valid in India?
Ans: It depends upon the various facts. Generally, in order to validate the foreign divorce decree in India the ground of the divorce must be recognized in Indian Laws. Moreover, it must be pronounced by the competent court.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
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