Partition disputes refer to disputes around dividing the property of a Hindu Undivided Family as per the Hindu law of inheritance, i.e., Hindu Succession Act 1956.
There are two ways to resolve disputes about property partition: a family settlement agreement and a partition suit.
Family Settlement Agreement
A family settlement is a an agreement among family members, usually made to avoid court battles, by splitting up the family property through mutual understanding among the family members. It follows the same format as that of a partition deed. It is not mandatory to register and stamp the family settlement agreement. However, all family members should sign it voluntarily, that is, without any fraud or coercion or undue pressure from any family member or anyone.
Partition Suit
A suit for partition of property, is a court case filed when the family members cannot agree on the terms and conditions of dividing the property. In such cases, the family members usually want to divide the property according to their shares in it. The first step here is to carefully draft and send a legal notice to the other legal heirs of the property related to family property partition/ settlement.
Property or land registration in India involves(( Section 17 of the Registration Act, 1908)):
- paying stamp duty and the registration fee for sale deed, and
- having the documents legally recorded with the sub-registrar of the area where the property is located. At the time of registration, the authorised signatories of the seller and the purchaser have to be present along with two witnesses.
Stamp duty varies depending on the area where the property is located. For eg: In Mumbai, the stamp duty is 5% of the total property value, which includes 1% metro cess(( https://housing.com/news/maharashtra-stamp-act-an-overview-on-stamp-duty-on-immovable-property/)). Usually, the seller is responsible for registration of the transfer of immovable property, and the purchaser is responsible for the payment of stamp duty.
Today, most states have their own web portals for property registration and the payment of stamp and registration fee. It does however require the buyer to physically visit the office of the sub-registrar with the documents, once the online process is completed. Also, the user-friendliness and the number of services one can seek from these portals varies from state to state. For eg: the Delhi government has multiple portals that an individual would have to go through to complete the registration process, but there are plans to introduce a single window portal soon(( https://housing.com/news/property-registration-online-in-delhi/)).
You must take certain precautions while renting a house. While trying to enter into an agreement to rent a house/flat, often the legal procedures for rent are not followed properly.
However, since it is a contract and involves an exchange of property and money it is important to understand the following while going through the processes of renting:
Your relationship with your landlord/licensor/tenant/licensee is a contractual relationship. This means that your legal relationship is based on negotiation and establishing clear terms.
However,
The principle of negotiation and establishing clear terms applies to both types of agreements, irrespective of these protections that are available.
You should ensure that you keep proof of what has been agreed upon or of any payments that have made.
This can be done by:
- Having a written copy of an agreement
- Having in writing anything discussed verbally either on paper/Whatsapp/Email/Messages (if possible) and
- Keeping receipts for any payments (if possible)
This ensures that if any person disputes any payment or agreed terms you can show proof the payment of agreed terms.
If there is a dispute between owners who have land next to each other about the measurements of their plots, they can resolve it by getting assistance from the government surveyor to conduct a joint survey. The ownership documents and the information in the revenue records have to be looked into while settling such a dispute. You can find them in the Record of Rights (RoR) at your local tehsildar’s office or online, if the state has digitized RoRs available. Any encroachment by one party on the land of another has to be removed. For instance, such encroachments may consist of building a fence that trespasses into another’s property, extending a building beyond one’s own property boundaries, overhanging tree branch protruding into neighbors’ property which could potentially cause injury/damage, etc.
If that is not done, the aggrieved party can go to court.
Yes, it is more beneficial to register an immovable property on a woman’s name, as many states and banks have introduced financial benefits for women buying property. As a result, buying property in a woman’s name can bring many advantages such as:
In order to safeguard the rights of both tenants/licensee and landlords/licensor, you must ensure that you have a written rent agreement. While finalising this agreement, it is very important to read all the terms mentioned in it.
These terms not only decide your rent amount and security deposit but also covers many other important aspects such as maintenance of the house/property you are leasing, payment of relevant bills, notice period of leaving, etc.
Ensure that the following provisions are present in your agreement (lease or leave and license agreement):
- Names of Tenant/Licensee and Landlord/Licensor
- Purpose of Agreement
- Duration of Agreement
- Rent Amount
- Date of Payment of Rent
- Security Deposit Amount
- Maintenance Amount
- Assignment of Responsibility of Repairs
- List of Furniture/Fittings/Other items
- Notice for Termination of Agreement
- Notice for Landlord’s Entry into Premises
- Declaration to Abide by All Bye-laws of the Society/RWA
- Declaration to Not do Illegal Activities
- Declaration to Sub-let Only With the Permission of the Landlord/Licensor
- Courts to Approach for Dispute Resolution
- Rate of Increment of Rent After a Certain Period, if any.
- Signatures of Landlord/Licensor or Tenant/Licensee
- Signatures of Two Witnesses
If someone encroaches or trespasses on your property or a construction extends beyond the boundary line, there are three ways to resolve it.
Trespass: If someone enters your property:,
- with the intention to commit an offence or to intimidate, insult or annoy you, or
- enters lawfully but remains there unlawfully,
it can amount to criminal trespass under the Indian Penal Code(( Section 441 of the Indian Penal Code defines Criminal Trespass.)). You can file a criminal complaint against them.
Demarcation of property: The second option is to demarcate the land, by building walls or fences. It fixes the boundaries of the land, assures the protection of the demarcated land and keeps invaders away.
Civil suit for encroachment of property: The third option is to move an application in a civil court and seek orders against the encroachment. You can ask for a permanent injunction stopping anyone from disturbing your possession of land.
In order to transfer property to an unborn person, you must first transfer the property to a living person, which is usually done through the creation of a trust, until the unborn person comes into existence. This creates a vested interest in favour of the unborn person.(( Section 13 of the Transfer of Property Act, 1882.)) For instance, if A is pregnant with a child, a trust can be created in the interest of the child and this trust will hold the property until the birth of the child. The trustee will essentially act as the unborn child’s proxy until the child is born. To put it simply, the property sits with someone untouched until the birth of the person to whom it was transferred. The trust simply holds the property till that time.
Renting a house or a flat involves many processes and procedures. You can be taken advantage of if you are not aware of these processes or procedures. Please read the following to safeguard yourself while renting a house:
Easements or right of way is an owner’s or occupier’s right over other land, not his own, which allows them to enjoy their own property(( Section 4 of the Indian Easements Act 1882)). It includes the right to pass over the land of another person uninterruptedly to enjoy one’s own land. If there is obstruction of this right, you can sue for an injunction to stop the obstruction or for damages.
A gift is a transfer of movable or immovable property without consideration, i.e., without money. When a transfer of immovable property happens without any payment made while receiving such property, it is considered to be a gift. In such cases, the parties who give and receive property are known as Donor and Donee. For a gift of immovable property to be valid under the law, the transfer must be:
- Done through a registered legal instrument signed by or on behalf of the donor
- Attested by at least two witnesses(( Section 123 of the TP Act.)).
Once it is signed and registered as per the due process of law, a gift deed cannot be revoked or taken back, except if the Donor and Donee agree beforehand that such revocation shall happen in certain conditions.
It is ideal to have an agreement or contract when you renting a house or giving your house on rent so that:
- When there are any disagreements regarding money, utilities, and repairs, etc. the details of the contract would be enforceable and helpful for you.
- When you want to file a complaint with the police/court you can show the written agreement/ contract as proof.
- As a tenant/licensee, you can show your rent agreement as evidence of temporary residence.
Your rights and duties, whether as a landlord/licensor or a tenant/licensee, largely depend on the kind of agreement you sign for the purpose of renting a house. There are two kinds of agreements that are used for renting a property for residential purposes. They are:
Ownership rights on land can be acquired by succession, survivorship, inheritance, partition and purchase. Disputes can arise out of objections about validity of rights of owner/seller or eligibility of purchaser and breach of government rules and regulations to hold the land. The manner in which these disputes are dealt with, is very specific to the facts of each case and needs specialized domain knowledge. It is important to consult a lawyer before taking any steps towards litigation. There are ways to check buyer and seller eligibility in a transaction of sale of immovable property. More information on how to check the eligibility is available here
You can approach the court to raise disputes over land and property for various reasons including claim on ownership, contestation over land acquisition, disagreement / disputes over real estate transactions, conflict over property inheritance, and misuse of rented property among others. There are different laws and procedures which explain how an individual can seek redressal on these issues, depending on the particular circumstances under which the dispute arises. Such issues are better dealt with through lawyers specializing in land disputes. However, it is best to conduct your due diligence beforehand to make sure that your property is not stuck in a court dispute. Please talk to a lawyer or ask us any questions through the Ask Nyaaya Helpline.
In some cities, instead of a rent agreement, a leave and license agreement is used. By using this form of an agreement, the owner of the property gives you permission to use the house for a specific purpose.
In a Leave and License agreement, the person giving the house on rent is called the licensor and the person renting the house is called a licensee.
Keep in mind the following when you enter into a Leave and License Agreement:
Tenant Protections Not Available to a Licensee
You are technically not a tenant as per law and hence you do not have certain rights. Instead, you are a licensee who has acquired a limited right to use the premises for a specific time period.
Guided by Agreement
The rights and duties of both licensor and licensee are primarily decided by the agreement. If any of the terms of the agreement are violated, it is treated as a violation or breaking of a contract, the remedy for which is going to Court to file a civil suit.
To see a sample leave and license agreement, refer here.
Please refer to this checklist to ensure you have all the essential points covered in your agreement.
The location of your property is one of the main considerations in deciding which court you should approach to file a suit about immovable property(( Under Section 16 of the Civil Procedure Code, suits for various disputes relating to immovable property must be instituted in the Court within the local limits of whose jurisdiction the property is situated)). The court must have jurisdiction over the place where the disputed property is situated. If a property is located across jurisdictional boundaries of more than one court, the suit can be filed in any of those courts(( Section 17 of the Civil Procedure Code)). Please consult a lawyer before taking such steps.
Besides approaching courts, disputes can be settled with the help of Lok Adalats. This is an alternate dispute resolution mechanism recognized under the Legal Services Authorities Act, 1987.
Lok Adalats are a forum where disputes/cases pending in the court of law or at pre-litigation stage, like land and property disputes, are settled/ compromised amicably. The decision of the Lok Adalat is final and binding; there is no provision for appeal. However, if the party is unsatisfied with the award, they can initiate the litigation process.
If you are planning to sell a property, one of the most critical factors you must consider during the sale is the process of registering the transaction.
Registering the Sale
Registering the transaction or sale is beneficial for both parties since it means that the government recognizes the transfer of property from the seller to the buyer. In India, all individuals must register(( The Registration Act, 1908.)) the sale of an immovable property for which the transaction costs exceed Rs.100. Since the cost of land or a house is much higher, this effectively implies that sale of such a property must be registered. Furthermore, all transactions involving gift of an immovable property, as well as lease for a period exceeding 12 months also need to be registered.
Disclosure of Information
As a seller, it is important to ensure that the transaction is carried out with absolute honesty and in full agreement with the buyer. This is necessary to ensure that there is no conflict or dispute that arises over the transaction in the future. When the buyer shows an interest in the land or house you wish to sell, you, as the seller, must:
- Disclose to the buyer any material defect in the property of which you are aware but of which the buyer is not aware, and which the buyer cannot ordinarily discover.
- Make available all the relevant documents to the buyer for examination, including all documents of title relating to the property.
A lease deed/agreement is the most common form of agreement used in many cities like Delhi, Bangalore, etc. It is also commonly referred to as ‘Rent Agreement’.
Rights Under a Rent Agreement
As a tenant, if you have signed a lease deed with your landlord, you have certain rights that you would not have in case of a leave and license agreement, such as:
Interest in Property
You have a right over the property in terms of its occupation and use since you are paying rent.
Right to Possession
You get exclusive possession to occupy the house being rented to you. This means that if the landlord has rented you a house or space, he cannot use the space assigned to you. It is for your exclusive use for the duration of your lease.
Protection from Eviction
The landlord cannot unilaterally end or shorten the duration of your lease without providing proper legal justification. You have certain protections available against eviction.
Please refer to this checklist to ensure you have all the essential points covered in your agreement.
Under the law, any person that is competent to enter into a contract i.e., who is 18 years old or above and is of sound mind, can sell an immovable property.(( Section 7 of the Transfer of Property Act, 1882.)) There are specific rules for sale of property by NRIs and PIOs in India. However, for the sale of property to be legal, various aspects come into consideration, such as:
- Whether you have the right to sell, i.e., whether you are the owner
- Whether you have the authority to sell the property. For example, seeing if you have a power of attorney or have been authorized by the owner to sell.
There are certain steps you should follow before signing the written rent agreement.
Due Diligence Before Signing
If you decide to take the house or give your house on rent, then here are some important things you should do before signing the written agreement:
Read Your Agreement
Before signing your agreement ensure that you or your lawyer has read the terms of the agreement. Please ensure that you have not signed a document without knowing the contents of it since you cannot later claim that you are not bound by the agreement because you did not read the agreement.
Ensure the Presence of Witnesses
After reading the terms of your agreement, both you and the landlord/licensor/tenant/licensee have to sign the agreement. Please make sure that there are two (2) witnesses signing the agreement as well. This requirement is not optional as without the witnesses signing the agreement it will not be considered to be valid.
Due Diligence After Signing
Here are some important things you should ensure after signing the written agreement:
Notarizing and Registration of the Agreement
After signing the agreement, make sure that you notarize or register your agreement if you are giving your house on rent or taking a house on rent.
For rent agreements which are for 11 months registration is not compulsory. However, it is compulsory to notarize the agreement.
Police Verification
After signing your agreement ensure that you get the police verification process done if you are giving your house on rent. As a person taking a house on rent you have no obligation to get the police verification done. However, you must co-operate with your landlord when he asks for your details for this process as the landlord is required to complete this process under the law.
NRIs and PIOs can sell property in India in accordance with the Master Circular.(( RBI’s Master Circular on Acquisition and Transfer of Immovable Property in India by NRIs/PIOs/Foreign Nationals of Non-Indian Origin, 2013)) An NRI can sell property in India to a person resident in India or an NRI or a PIO. A PIO can sell property in India to a person resident in India, an NRI or a PIO – with the prior approval of RBI. NRIs and PIOs are permitted to sell agricultural land /plantation property/farm houses only to a person resident in India who is a citizen of India.
Registration of Rent/ Lease Agreement
If your lease agreement is for a year or more, it is compulsory to register it with the office of the sub-registrar of the city you are living in. It must be registered within 4 months from when the lease agreement was made. If the agreement is not registered, it will not be accepted as evidence by court, if or when a case if filed in relation to the rented property.
Registration of your agreement is also a measure to ensure that your landlord does not charge you anything extra apart from what was already agreed upon or coerce you into any illegal transactions.
This is the reason why most agreements are for a period of 11 months, so as to avoid this registration process. In such cases, you need not register the agreement, but only notarise it.
However, in some cities, like Mumbai, where a leave and license agreement is used, it is compulsory to register the agreement, irrespective of the duration of tenancy. In Maharashtra, all agreements of tenancy, be it lease or leave and license, must be compulsorily registered by law.
Notarising Your Agreement
It is necessary to notarise any kind of rental agreement, if it is not being registered. This is because the agreement between you and your landlord is a contract and all contracts are usually validated by a notary. Notarising the agreement gives validity to your document and also affirms that the parties signing the agreement are in fact who they are. This not only ensures you of your rights and duties, but in case the matter goes to court, a notarised agreement is likely to not be disputed.
One of the most critical aspects to consider when buying a land or house, is knowing whether:
The price of the property is fair
Since land and property fall under State subjects as per the Constitution of India, laws and transactional rules vary depending on the state where the property is located. Depending on where the property is located and the nature of construction (if applicable), different states have introduced a system of determining a minimum base price for the property, called ‘circle rate’, or ‘ready reckoner rate’. These circle rates are speculative and vary greatly even within the same city- from one area to another- and are frequently updated and notified. In addition to the location-based circle rates, the value of a property is also affected by the services it has access to, and the builder/ housing society. However, these circle rates only serve as guides, and the actual price may vary based on the market value of the property, called fair market value.
The ownership of the property is free of disputes
There are various ways in which you can find out if the ownership of the property you want to purchase is disputed. The simplest way is to check the title deeds of the property in question. You can also enquire with the local tehsildar’s office or that of the village officer where the property is located. Other documents such as e-record of rights, property tax receipts, and survey documents are also used to establish ownership.
Follow the steps given below to register your rent agreement. In most cases, your broker will help you through this process.
Step 1
Once the agreement is ready, pay the relevant stamp duty amount.
Step 2
Book an appointment with the sub-registrar of your sub-district. Most states have set up an online appointment system.
Step 3
The landlord/licensor, tenant/licensee and two witnesses must visit the sub-registrar’s office at a given time as per the appointment, along with the following documents:
- Agreement with duly paid stamp duty
- Two recent passport size photos of tenants, landlord and witnesses
- Identity proof of tenants, landlord and witnesses (Aadhar card, Election ID card, Passport, Government issued ID card, Identification verified by gazetted officers).
Step 4
Finally, to complete registration, pay the relevant registration fees while submitting the documents mentioned above.
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