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Family Dispute over Property and Settlement

 Movable and immovable properties constitute wealth and the root cause of family disputes across the spectrum of households at every stratum from subsistence or marginal to opulent families invariable get embroiled in disputes over property matters and that makes occurrences of property disputes quite common in India. The natural solution for the vast majority of disputing families is dragging the issue to courts rather than opting for an out-of-court settlement. What the vast majority of people fail to realize is that given the fact that the process is long-drawn and expensive, the courts cannot provide assurances of a favorable outcome eventually. Therefore, for a quick resolution of the matter, opting for an out-of-court settlement amongst the family members is far more advisable and in fact, recommended. What Exactly is Family Settlement? Briefly, a family settlement is essentially an agreement between family members mutually working out the distribution of the sale proceeds amongst each other. All parties to the out-of-court settlement ought to be relations and claimants to the wrangled property’s share. Claims aren’t restricted to real estate or immovable property and can go beyond real estate to movable properties including jewelry or cash/cheque deposits in bank accounts. A family settlement ideally is for settling common or jointly-owned property that belongs to the family rather than individually inherited property or property acquired by oneself. Family Settlement Agreement for Partitioning of Property Any written agreement amongst family members is referred to as a family settlement, usually made to avoid taking property issues to court and partitioning the family property amicably with mutual consent. The format for family settlement agreement is the same as a partition deed. Furthermore, registration and stamping aren’t required for a family settlement agreement. All family members ought to voluntarily and of their free will sign a family settlement agreement without instances of fraud perpetrated, coercion or any family member pressurizing. Besides, it's unnecessary to draft a family settlement agreement in writing as executing the agreement is possible either through a compromise or by family members settling mutually. Unique Selling Points • Anyone can avoid long-drawn, public and tedious court wrangles • Faster, and far more amicable way of resolving court disputes Procedure A family settlement is a conciliatory process involving a third person, who is a property lawyer or a senior family member, aiding and abetting the family to find a mutually acceptable solution to the property wrangle. A family settlement may not be the one and only legal document with the distribution of the property also mentioned; in fact, it could be one of many in a series of documents throwing light so to speak on each and every family member’s property rights. According to the provisions of the Income Tax Act, a family settlement is neither a gift nor a transfer of property. Hence, the exclusive transfer of property documents would need to be prepared besides the family agreement in making a real transfer of property. The property tax aspect must be considered while making a decision on the transfer of property. Partition/Settlement Suit In Family Disputes In India Prior to filing a partition suit in court for the partition of property, a legal notice ought to be sent to the other co-owners of the property intimating them about the impending partition or settlement of the family property. Stating the shares of each co-owner can be found on the legal notice along with the details of the disputed property in its entirety as well as the required action to be taken. Not replying at all to the legal notice or the co-owners sending inadequate replies would result in filing a partition suit in the court. A partition suit is essentially the filing of a court case in instances of disagreements amongst co-owners about the terms and conditions of division of property, and co-owner(s) intend on partitioning the property based on their shares. A partition suit is filed in the court with jurisdiction over the location area of the property. The court has to first establish as to whether the person filing the partition suit can stake a claim on the property or not. As soon as the claimant establishes his/her share without any further inquiries required, individual right to ownership of the property may be assigned to the co-owners. If it's impossible to partition the property merely based on the partition suit, the court’s order, in that case, would be conducting an inquiry into the matter and making a preliminary decision of appointing a Commissioner who would be evaluating the property and submitting a report. Thereafter the court establishes each co owner’s share according to the report and partitions the property based on the share of each co-owner. Can Self-Acquired Property go for Family Settlement? Executing settlement of self-acquired property during the lifetime of the acquirer is impossible. However, simultaneously, the self-acquired property automatically devolves as a part and parcel of the ancestral property after the property owner's death. Nonetheless, the person may assign the self-acquired property through his/ her will to any the person he desires. Legal Requirements Even if there is a consensus, it's not enough; as there are quite a few legal formalities that need to be completed to ensure that there is a valid agreement. • All family members involved must sign the settlement document. If a signature is missing then that could easily be the cause for throwing a challenge in a court of law; at future date. • To be safe, attestation of the document by two witnesses is essential although it's not mandatory. Registration The next step is registering the agreement. According to Section- 17 of the Indian Registration Act, a family settlement that aims to assign immovable property must be registered as a mandatory requirement or else the deed would be invalid. Applying Stamp duty to such deeds is the norm and the amount of stamp duty varies based on the value of the said property. Binding Factor While a family settlement that has been duly executed is irrevocable, the only exception being through a decree from the court, it can be challenged though, based on specific circumstances that may exist. • The fruition of an agreement through fraud or coercion • Tweaking of vital facts regarding the disputed property’s title as well may result in inviting trouble. • Faulty execution. Heeding these commonly occurring tripwires while drafting an agreement would result in a flawless, amicable and mandatory family settlement, benefiting one and all. 

Posted By

Avik Chakravorty

11 hours ago

Laws Related to Registration of Property Transacti...

In the case of immovable property, mandatory registration of property purchase and sale documents are essential ensuring proof of ownership, fraud prevention and assurance of title.Under The Indian Registration Act, there is legislation for property registration in India known as the law of registration of documents that makes it a mandatory requirement to register key documents for the recording of evidence, fraud prevention and assured title transfer. Property Documents Necessitating Mandatory RegistrationRegistration of property or property registration in India in accordance with Section 17 of the Registration Act, 1908, is mandatory in case of transactions involving immovable property sale for an amount in excess of Rs. 100. What this essentially means is that all immovable property sale transactions must be registered since a mere Rs. 100 cannot possibly be the purchase price of immovable property. Furthermore, a gift of immovable property, as well as lease for a period in excess of 12 months are essentially transactions that require registration.In special circumstances, if any of the parties to the transaction is unable to be physically present at the sub registrar's office, then, in that case, any of its officers may be deputed by the sub-registrar for acceptance of the registration documents at the buyer’s residence. Included in ‘immovable property’ are land, buildings and any attached rights to these classes of properties.Procedure and Documents Required for Registration of PropertyAs registration of property documents are mandatory it's worth knowing what the procedure for registration of property entails. Firstly, the documents have to be submitted to the office of the Sub-Registrar of Assurances within the jurisdiction of the location of the transferrable property by the property lawyer. Thereafter both the authorized signatories of the seller and the purchaser, need to be physically present with their proof of identities including Aadhar card, PAN card or any other government authority issued ID proof along with two witnesses, for the purpose of registration of property documents.All designated authorized signatories ought to produce the power of authority if in case they are representing someone on their behalf.  If however, in the case of a company the company is one of the parties in the agreement, the company representatives ought to have all necessary documents with them including the letter of authority, and along with that a copy of the company board’s resolution granting authority to execute the registration. The designated authorized signatory ought to show the property card to the sub-registrar and in addition to that all original documents and proof that stamp duty has indeed been paid. Prior to registration of property documents, verification would be done by the sub-registrar as to whether or not the required stamp duty for the property has been paid, according to the ready reckoner for stamp duty.  Any deficit in the stamp duty would result in the registrar declining registration of property documents. Time Limit and Fees to be Paid for Property Registration ?All documents that need mandatory registration ought to be presented by the property lawyer no later than 4 months from their execution date along with the prescribed fee. In the case of expiry of the time limit, an application can be made to the sub-registrar to condone the delay, and that with an extension of time of another 4 months the registration of property documents would be submitted to the sub-registrar within that time. The registrar may consent to register documents that missed the registration deadline for a hefty fine of up to ten times the actual registration fee. For the registration of property documents, the fee is 1% of the property’s value, capped at Rs 30,000.Previously, presenting registration of property documents for registration of property would result in returning the documents to the sender after six months. Nonetheless, with the sub registrar's offices being computerized, the documents with the registration number and proof that the registrar has indeed completed the registration are first scanned and then returned to the sender on the very same day.Consequences of Non-registration of PropertyIf the property purchase agreement remains unregistered then it could be very risky for the buyer of the property. Since it’s mandatory for all documents to be registered but if they remain unregistered then those unregistered documents cannot be presented as proof in a lawsuit.  

Posted By

Avik Chakravorty

2 days ago

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