An Insight on Development Rights Agreement

All About Development Rights Agreement

1. Meaning

A popular mode of developing property, especially in Mumbai, is by way of an Agreement granting Development Rights, popularly known as “Development Agreement” or “DA”. DAs are the by-products of outdated legislations such as the Urban Land Ceiling Regulation Act. The owner of the land grants development rights to a builder /developer to carry out various activities such as, to:

(a) obtain the necessary permissions

(b) construct the building

(c) market and sell the flats

(d) receive the consideration and

(e) form a society / association of flat purchasers

Thus, while the owner retains the possession of the land, he gives a licence to the builder to enter upon his land, construct the building and market and sell the flats so constructed. DAs are increasingly accepted because of their many advantages both for the owner and the developer. The developer does not have to block huge funds in buying the land and thereby he can improve his cash flow. He may pay a DA premium but it would be significantly lower than buying the land on an outright basis. This is one of the biggest advantages of a DA structure. As regards the owner of the land, he gets an opportunity to share in the profits of the development. With real estate prices touching all-time highs, most owners do not want to lose out on the potential gains they can make from selling the flats. Thus, in several cases, a DA is a win-win situation for both parties.

2. Consideration for DA

In consideration for the above rights, the owner may be given a lump sum consideration. However, in several cases, the owner shares the constructed area or shares a percentage of the profits from the development with the developer.

3. Kapadia’s judgment

The Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia, 260 ITR 491 (Bom) has threadbare examined the concept of a DA in the context of the point of taxation of the land owner. It looked at whether a DA can be treated as a part performance of a contract u/s. 53A of the Transfer of Property Act. The court has laid down the following 6 conditions necessary to attract s.53A of the Transfer of Property Act:

(a) there should be a contract for consideration;

(b) it should be in writing;

(c) it should be signed by the transferor;

(d) it should pertain to immovable property;

(e) the transferee should have taken possession of the property; and

(f) the transferee should be ready and willing to perform his part of the contract.

It further held that if under the Development Agreement a limited power of attorney is intended to be given to the Developer and even if the actual power of attorney is not given, then the date of such Development Agreement would be relevant to decide the date of transfer u/s. 2(47)(v) read with s.53A of the Transfer of Property Act. For this purpose, the date of the actual possession or the date on which substantial payments are made would not be relevant. If the contract as a whole indicates passing of or transferring complete control over the property in favour of the developer, then the date of the contract would be relevant to decide the year of chargeability. In this case the Court held that the conditions of s.53A were fulfilled and hence, capital gains tax was attracted u/s. 2(47)(v) of the Income-tax Act.

4. DA or Partnership or AOP

4.1.In several cases, the owner and the builder enter into a profit sharing arrangement, which is quite similar to that under a partnership. An issue in such a case would be, whether the arrangement is one of a Development Rights Agreement or is a partnership? The income-tax and stamp duty consequences on the owner and the developer would vary depending upon the nature of the arrangement.

4.2.S. 6 of the Indian Partnership Act is relevant for this purpose. It provides that the sharing of profits or of gross returns arising from property by persons holding a joint or common interest in the property does not of itself make such persons partners. The relevant extracts are given below :

“6. Mode of determining existence of partnership.- In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together.
Explanation I. – The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners.
Explanation II.- The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business; and, in particular, the receipt of such share or payment –

(a)by lender of money to person engaged or about to engage in any business,

(b) by a servant or agent as remuneration,

(c) by the widow or child of a deceased partner, as annuity, or

(d) by a previous owner or part-owner of the business, as consideration for the sale of the goodwill or share thereof,

does not of itself make the receiver a partner with the persons carrying on the business.”

4.3.In addition to profit sharing, mutual agency is also a key condition of a partnership. Each partner is an agent of the firm and of the other partners. The business must be carried on by all or any partner on behalf of all. What would constitute a mutual agency is a question of fact.

Recently, the Bombay High Court in the case of Sanjay Kanubhai Patel, 2004 (6) Bom C.R. 94 had an occasion to directly deal with this issue. The Court after reviewing the Development Rights Agreement, held that it is settled law that in order to constitute a valid partnership, three ingredients are essential. There must be a valid agreement between the parties, it must be to share profits of the business and the business must be carried on by all or any of them acting for all. The third ingredient relates to the existence of mutual agency between the concerned parties inter se. The Court held that merely because an agreement provided for profit sharing, it would not constitute a partnership in the absence of mutual agency.

4.4.In some cases, the income-tax may also contend that it is not a DA arrangement but an Association of Persons or an AOP and hence, it is the AOP which should be taxed. This stand may have several repercussions under the Stamp Act, deduction u/s. 80-IB(10), etc. It is important to note that unlike in the case of a partnership, the condition of mutual agency is not necessary in the case of an AOP.

4.5.From the above discussions, it would be clear that a proper structuring of the transaction and a proper drafting of the relevant documents is essential to achieve the desired results.

5. Stamp Duty

5.1.In Maharashtra, under the Bombay Stamp Act, 1958, a DA attracts stamp duty @ 1% of the market value of the property. However, if stamp duty has been paid under Art.48(g) dealing with a Power of Attorney in respect of the same property, then stamp duty on a Development Agreement would only be Rs. 100.

5.2.The term “market value” is defined by s.2(na) of the Bombay Stamp Act to mean the higher of :

• the price which the property covered by the instrument would have fetched if sold in an open market on the date of execution of the instrument (which in other words means the Stamp Duty Ready Reckoner Value); or
• the consideration as stated in the instrument

5.3.The Gujarat Stamp Act also contains an express provision to this effect. The Stamp Acts of several other States do not contain an express provision for levying stamp duty on a DA.

How to read an agreement

Reading an Agreement

1. Introduction

 From time immemorial, the commercial world has worked on contracts and agreements. The only difference between then and now, is that earlier a lot of these agreements were oral in nature, whereas nowadays, most businesses, if not all, prefer a binding written agreement. An agreement may be entered into for the smallest of matters to the largest of issues. Agreements in India are governed by the Indian Contract Act and in addition by specific statutes depending upon the nature of the agreements. For instance, an agreement to assign a copyright must bear in mind the provisions of the Copyright Act, 1957. In addition, certain taxing statutes, such as the Stamp Act, contain certain provisions which must be borne in mind while executing the agreement. It is interesting to note that there is no specific format for an agreement. There are various ways in which an agreement can be drafted. The American style of drafting is substantially different from the English style. However, it is important that it contains the vital provisions or else the purpose behind the agreement would be defeated. This Chapter looks at some of the important parts of an agreement.

2. Standard Clauses

2.1.Name Clause

This is the first part and contains the names and addresses of the parties to the agreement. It also specifies whether the agreement includes the heirs, assigns, executors, successors, administrators, etc., of the parties to the agreement. In case there is no provision for an assignment then it would be difficult for any party to do so. This clause also contains the Date of the Agreement when it is executed.

2.2.Recitals

The recitals give a brief background about the agreement. They explain the purpose behind the agreement and the objectives which it seeks to achieve. In case of property conveyancing documents, the recitals also contain a brief title history of the property. The recitals are an integral part of the document and should be carefully drafted so that it becomes easy to construe the agreement.

2.3.Representations and Warranties

This is a very important clause and due care and precaution is required while drafting the same. The parties give out certain representations and warranties in this clause and hence, if they turn out to be false then the other party has a right of action against the party making such false statements. For instance in a flat sale agreement, the flat seller can give a representation that he has not sold or mortgaged the flat to any other party and if there is a claim to the contrary, then he would indemnify the flat purchaser. This clause is also very significant in a Shareholders’ Agreement or a Joint Venture Agreement.

2.4.Prior Permissions and Approvals

Quite often, it may happen that a particular agreement is subject to prior permission from Governmental authorities. In this case, the agreement must clearly mention its conditional nature or else it may be a cause for action. For instance, a share subscription agreement which requires the prior FIPB / RBI permission must clearly state so. In the event the permission is refused then the agreement would terminate.

2.5.Costs and Charges

This Clause mentions who would bear various expenses, professional fees, etc. pertaining to and incidental to the agreement. This may also include the stamp duty cost in case of a transaction pertaining to an immovable property. It is always a good practice to have a clear understanding on this front so as to avoid disputes later on.

2.6.Notice

This clause lays down the address and contact details of the parties in case any notice, demand or other communication is to be delivered to them by any of the parties to the agreement. It provides complete postal address, telephone, fax, etc. Emails as a form of notices are frowned upon by many people and hence, not included.

2.7.Arbitration

In this Clause, the parties agree that all the disputes between them shall be amicably settled. In the event of failure to do so, the same shall be settled by an arbitration, and the provisions of the Arbitration and Conciliation Act, 1996 shall apply. This is a very vital part as in its absence all disputes would go to Court and that would be a long drawn out process.

The clause normally provides the place of arbitration and the language of the proceedings. It also mentions that all arbitral awards given in respect of disputes referred to arbitration in accordance with the provisions of this Clause shall be final and binding on all parties concerned

The importance of drafting this clause carefully in case of international contracts cannot be overstressed.

2.8.Variation

Variation to the agreement shall be binding on any of the parties only if and to the extent, such variation is recorded in a written document executed between the parties.

2.9.Confidentiality

Several agreements, such as joint venture agreements, share purchase agreements, etc., contain a Confidentiality Clause. It provides that the parties would not disclose any information to a third person unless there are circumstances such as statutory requirements, etc. In certain highly sensitive agreements it is also provided that the leakage of information may be taken as a ground for termination of the agreement.

2.10.Force Majeure

“Man proposes and Nature Disposes”. The best of intentions and actions are sometimes undone by acts of God or forces of nature. These include, but are not limited to any Act of God, strike, lockout, labour dispute, epidemic, cyclone, flood, earthquake, drought, fire, explosion, atmospheric disaster, war, riot, revolution, etc. In times like these, it becomes impossible to perform one’s obligations under an agreement. Hence, the Force Majeure Clause provides that no party shall be liable for any default or delay in the performance of his obligations when such default or delay is due to any contingency beyond his reasonable control.

2.11.Schedules

These are the Schedules, if any, which have to be annexed to the agreement. For instance, in a conveyancing document, it would contain the description of the property being conveyed along with a property map. Schedules are also a part and parcel of the agreement and are as important as the main agreement.

2.12.Signature Clause

This is the Clause where the parties to the agreement sign. Each person signs in the presence of a witness. The witness need not know the contents of the agreement. All he has to certify is that the person signing has done so in his presence. There can be one witness for all signatories. The capacity in which a person is signing must be mentioned in case he is doing so for and on behalf of someone else, e.g., the Director of a Company, Partner of a Firm, Guardian of a minor, etc. In addition to signing in the Signature Clause, normally, each page is also initialled as a mark of identification.

3. Novel Clauses

3.1.Transaction Clause

This is the heart of the Agreement as it deals with the Transaction contemplated therein. For instance, in a Share Purchase Agreement, this Clause would lay down that the seller is interested in selling certain number of shares and the buyer is interested in purchasing them It would also lay down any conditions precedent which must be fulfilled by either party for the successful completion of the transaction. This Clause requires the utmost scrutiny and care while drafting.

3.2.Consideration Clause

One of the important tenets of Contract Law is that “No Consideration, No Contract”. A contract without any consideration is void ab initio except in certain cases. This Clause mentions the consideration payable in respect of the obligations of the party and should carefully scrutinised since it creates obligations for either party. Thus, in case of a share purchase agreement, the consideration clause would mention the price per share and the aggregate consideration. It would also mention the mode and the time of discharge of the consideration.

3.3.Escrow Mechanism

Certain agreements provide for an Escrow Mechanism with a reputed person, e.g., a commonly accepted solicitor or a CA. The Escrow Holder would retain in his custody the payment or documents due to the other party until such party fulfills his part of the obligations. For instance, in case of the sale of a property which is the subject matter of a mortgage, the buyer may deposit the consideration in Escrow till such time as the Seller clears the mortgage. As soon as the mortgage is redeemed, the Escrow Holder would hand over the consideration to the Seller. The events under which the Escrow Holder would release the Escrow should be very clearly specified in unambiguous terms. Escrow Mechanisms are increasingly used in agreements and are a common feature in agreements for complex infrastructure / power projects.

4. Director’s Responsibility

4.1.As agreements are the basis on which a company functions, it is imperative that they are properly drafted and safeguard the company’s interests. If the agreements suffer from some infirmity or legal handicap, then the company may have to incur severe losses. Hence, Directors must be extremely careful and cautious in all such matters. The best way to ensure this is to entrust the task to competent professionals wherever possible. The old adage better safe then sorry should always be borne in mind.

5. Auditor’s Duty

5.1.This is one area where the Auditor can make substantial value addition. As an Auditor one comes across several agreements which the auditee would enter into the course of business. The Auditor would refer to many of these agreements during his audit. He may check these agreements and advise the auditee whether those contracts are legally valid or do they suffer from some patent infirmity due to which the entity may suffer heavily. All agreements, have economic implications, which if material, impact the true and fair view.

5.2.Even otherwise than as an Auditor, a Chartered Accountant can render tremendous services in this area. If Chartered Accountants have a basic knowledge of the important provisions of the Act, they would be able to contribute towards pointing out gross errors or inadequacies in contracts entered into by their clients. This in itself would be a big service to the clients.

5.3.By broadening his peripheral knowledge, the Auditor can make intelligent enquiries and thereby add value to his services. He can caution the auditee of likely unpleasant consequences which might arise. It needs to be repeated and noted that the audit is basically under the relevant law applicable to an entity and an auditor is not an expert on all laws relevant to business operations of an entity. All that is required of him is exercise of ‘due care’.

Precaution To be taken while acquiring the Immovable Property

As buying the property in India is the most complex process Because buying a property is like falling into litigation, therefore it is important to examine title of the property by investigating the source from which the seller acquired the property. This search can be conducted at the sub-registrar’s office. It is advisable to investigate the title for the past thirty years or up to the original owner whichever is later.

An EC from the Registrar for 13 years.

All documents examined, should be original to ensure that the seller has a clear title and that there are no encumbrances on the property such as lien or mortgage or any other charge. Non-availability of any original document should be taken seriously.

Purchasing a property/land requires utmost care. One has to examine and find out the title of the seller or nature of his right. A seller can sell only what he possesses. Therefore if a seller has proper and valid title, on purchase you will get valid title. If the seller's title is defective, you will get only defective title. The simple reasoning is that he can sell what he has, and nothing more.

Some of the important aspects to be borne in mind while purchasing a land may be classified under different heads as follows:

1. First and foremost ask who is the seller? Get the full name and address of the seller.

2. Find out what is the nature of his right. The seller may be having absolute ownership right, or a conditional or limited right.

3. So far as the types of rights in the land, it can be classified mainly as follows:

· Free hold or absolute ownership

· Right of permanent lease

· Tenancy right

· Lands granted by government, under Land Grant Rules,  

  Land Revenue Act etc

· Lands granted under Land Reforms Act, etc

4. It is always advisable to deal with a Freehold right or absolute ownership right.

5. After getting the particulars as to who is the seller, what is his right, then find out the source of his right or title.

a) The title of the seller may be by purchase, by inheritance, by partition, by gift, by settlement or by grant.

b) To find out the source of title there must be some document like,

Right of purchase ---------- Sale Deed

Inheritance ----------------- Entries in Revenue records, and predecessor's title

Partition --------------- Deed of partition

Gift ---------------------- Gift Deed

Settlement------------------- Deed of settlement

Grant ------------------------ Grant order

Mulgeni --------------------- Deed of Mulgeni or permanent lease

c) If the right is by purchase ask for the original sale deed. See when the seller had purchased the land and from whom he had purchased. Verify the previous records. Verify, the title for thirty years.

d) If it is by inheritance, ask the particulars as to from whom he has inherited. What was the right of his predecessor? Again it may be a sale deed or gift, or inheritence. Verify the previous title Get the details as to how his predecessor acquired the title, and whether he is the only person who has inherited. If there are other persons who have jointly inherited, then you have to find out, whether there was any partition. Whether there are any minors who have inherited the property. If there is a minor, the minor's property can not be purchased without obtaining permission of the Court.

e) If it is by partition there must be a deed of partition.

f) See whether there are any conditions or restrictions in the deed of partition. Find out whether there are any conditions, like pre-emption, water rights, rights of way, payment of maintenance etc.

g) Likewise if it is gift deed, or settlement deed, or grant, get the original Gift deed, settlement deed, or grant order as the case may be. Read the document and see whether there are any conditions, like reservation of life interest, restrictions for alienation, payment of maintenance, preemption etc. Some times there may be reservation of life interest, or what was gifted may be only right of enjoyment.

h) Rights acquired under various types of Grant orders again are subject to several conditions regarding alienation and enjoyment. This has to be verified. If the grant is in favour of a person belonging to Scheduled Caste or Scheduled Tribe

community, generally there will be a condition prohibiting alienation. Such lands cannot be purchased

i) If it is a Mulgeni ask for the deed of mulgeni, again see whether there are any conditions. Mulgeni or right of permanent lease is again a conditional right. In such cases there are two parties or persons having the right in the Jand. One is the owner and another is the permanent lessee. In other words, one is the Mulgar/owner and the other one is Mulgenidar/ tenant. The possessory right or right of enjoyment will be, with the Mulgenidar/tenant.,The owner/Mulgar will have the right of ownership with right to collect the stipulated rent. The deed of Mulgeni or deed of permanent lease will contain the restrictions regarding alienation, payment of rent, and the other rights of the lessee etc. All these have to be verified. Because the owner/mulgar will generally have a right to challenge or question the alienation/transfer and the very right of mulgeni can be cancelled or terminated. It is always advisaWe to find out as to that is the Mulgar, or owner, and purchase his rights also.

j) If there are any conditions in the documents, examine the conditions, and if the conditions restrict or prohibit the transfer or alienation, do not proceed.

6. Find out the extent of the property and see whether it tallies with the one mentioned in the documents. Verify the survey number, location and boundaries and get the land measured through a competent surveyor.

7. Find out whether there is an approach road.

8. Examine the sketch or plan of the property.

9. Get the record of rights (RTC) of the land and confirm that the name of the seller is shown as owner in possession of the property. You can get the latest computerized RTC from the Taluk Office. The record of rights will disclose the name of the owner, name of the person in possession, nature of right, nature of land, and also encumbrances if any.

10. Identification of the lands will be always by Survey Numbers. Record of rights/ khata will give an indication as what is the right of the holder. Confirm the entries in the record of rights/khata with some other registered documents / or previous documents. This is because the Record of rights or khata by itself is not a document of title.

11. For converted lands there will be what is called as Khata. Apply and get Khata extract from the City Corporation.

a. The zone where the property is situated. Apply to the Urban Development Authority with survey number and sketch for a zonal certificate. If the property is in residential zone, construction of house will be permitted. If the property in commercial zone, industrial zone, park zone, etc, construction of house will not be permitted.

b. In City/ urban areas the user of the lands are regulated by zonal classifications. The Urban Development Authority is the Department, which deals in the matters relating to zonal

classifications. We have to see in which zone the land is located.

For construction of house the property must be in residential

zone.

12. Whether the property is converted? For using the land for building houses or other buildings, the land has to be converted from agricultural use to non-agricultural use. By filing an application to the Tahsildar, with sketch and other particulars as prescribed, and by paying the prescribed fee you will get an endorsement/order that the land is converted. This is necessary because all lands assessed for land revenue are considered as agricultural lands. The conversion is done under the provisions of Land Revenue Act. The Tahsildar, and in some cases the Deputy commissioner are the authorities prescribed under the Land Revenue Act for getting the land converted.

13. National High way and State High way: As per the National High Way and State High way Rules construction of buildings will not be permitted within a range of 60 meters from the center of the National High Way. If the land is by the side of National High Way, this aspect has to be verified.

14. Coastal Regulation Zone: Construction of buildings are not permitted within a range of 200 meters from the high-tide zone in case the property is situated by the side of river and 500 meters in case the property situated by the side of sea.

15. We have to find and out and see whether there are any encumbrances, charges, or mortgages on the property. Verify Encumbrance certificate for at least 13 or 15 years up-to-date. If there are any charges/mortages/ or other encumbrances noted in the Encumbrance certificate do not proceed till the same are cleared or clarified.

How to find out this?

a. Apply and get an encumbrance certificate at least for 13 or 15 years, from the office of the Sub-Registrar where the immovable property is situated. Give the particulars of the property like Survey Number, extent of land, name of the village, name of ward, boundaries, etc. and specify the period for which you require the encumbrance certificate.

b. The encumbrance certificate will show the details of registered documents relating to the property, Like sale deeds, mortgage deeds, etc.

c. If there are no such registered records relating to the property the encumbrance certificate will be a Nil Encumbrance certificate.

d. Mortgages or charges can be created by registered documents, or by depositing the original title deeds. If it is by registered documents, like deed of mortgage, it will be reflected in the encumbrance certificate. If it is by deposit of title deeds, the Encumbrance certificate will not disclose it. Therefore you have to ask for the originals title deeds for verification. If the original title deeds are with the owner it means that he has not deposited it with any body. Sometimes, the originals might have been lost by misplacement, fire, or by some other means. If that is the situation then one has to proceed only on the basis of trust. We can ask for an affidavit, a sworn statement of the owner to the effect that the original title deeds are really lost and that he has not created any charge, or deposited it with anybody. A paper publication can also be given.

16. If the properly which you are going to purchase is a land with building, you have to verify the building licence, completion certificate and latest tax paid receipt

17. Khata of the building and land has to be verified and it must show the name of the owner.

18. Apartments: If the property which you are going to purchase is an apartment you have examine and verify:

a. The title to the land on which the apartment building is constructed. For tracing and confirming the title of the land on which the Apartment building is built, the same points narrated above have to be followed.

b. The land and the building must have been submitted to the provisions of Apartment Ownership Act 1972, by a registered document called the Deed of Declaration. Read the Deed of declaration and it will give you a clear picture as to what are the common rights, facilities, how it has to be enjoyed, how it has to be maintained. As a whole the deed of declaration will contain the various provisions regarding the mode of enjoyment of the apartments, common areas, and facilities.

c. The percentage of right in the land which you are going to get has to be verified

d. Whether the Association of the Owners has been formed?

e. Get a no due certificate from the Association of Owners regarding maintenance or other charges so far as it relates to the apartment, which you are purchasing.

f. The building license, plans, completion certificate latest tax paid receipt have to be verified.

g. All documents relating to land as explained above have to be verified.

h. The original of the sale deed relating to the apartment, which you are purchasing, has to be obtained.

19. Some points regarding Minors right, and rights of inheritance:

a. If right of minor is involved in any property, it is not advisable to purchase such land. The minor can always question the sale by the father or mother as guardian within three years of his/her attaining majority. Getting Court permission for sale of minor's property, or right in the property will protect your rights to some extent.

ii) Regarding rights of inheritance, among Hindus all children irrespective of sex, they get right by birth in ancestral property as per the latest central amendment to the Hindu Succession Act. The rights of children are equal. So far as Indian Succession Act is concerned, which is applicable to Christians, when a male dies intestate, (i.e. without a Will or other documents) his wife will get one-third right and the remaining two-third will go to the children equally. For Mohammedans, when a male dies the wife and children will get the rights. However if there are no male issues and only daughters, as per Mohammedan Law, some of the near relatives of the deceased father will also get a share.

iii) If the property is self-acquired property, the question of children inheriting any right by birth does not arise. However when a male Hindu dies leaving behind his self-acquired property, without leaving behind any Will or other documents, the succession to the property will be as per the Hindu Succession Act. If the property is ancestral property, or a property inherited by his father, the succession for such property shall be as per the Hindu Succession Act and the same can not be regulated by Will. However this concept of ancestral or family property etc are not there under Indian Succession Act. Thus the property inherited by a Christian will be as good as his/her self-acquired property.

20. Sale by General Power of attorney holder. In many cases the actual owner does not come forward for executing the sale deed and the GPA holder represents the owner. In such cases first of all we have to verify the genuineness of the GPA. The original GPA must be verified and the GPA holder must have the custody of the original GPA. The following points may be borne in mind while examining the GPA:

a) The GPA is still in force. If it is an old GPA ask for a confirmation.

b) The GPA must contain the following powers and particulars:--Power of sale, power to sign and execute the sale deed, receive the consideration, appear before the Sub-Registrar, present the document for registration, admit execution and receipt of consideration, deliver possession of the property and description of the property, full name and address of the person giving the power and the person to whom it is given. If all these powers are there the GPA holder can execute the sale deed.

c) The GPA must be drawn on stamp paper of the required value. It must be attested by a Notary, Magistrate, Sub-Registrar or embassy.

21. As the sale transactions cannot be done then and there, and since it requires some reasonable time for both the seller and purchaser, many a times, the parties enter into agreement for sale pending registration of the actual sale deed. Before entering into agreement for purchase or sale, all the points narrated above have to be verified. The purchaser must retain the original agreement. Copies of the title deeds have to be obtained. The agreement has to be drawn and executed on stamp paper of required value. The agreement for sale must contain at least the following particulars:

a) Full name and address of the Seller and Purchaser.

b) A brief history of the title of the seller, with reference to his title deed.

c) An undertaking by the seller to sell |he land to the

d) The total price of the property agreed between the parties.

e) The amount of advance paid, mode of payment, acknowledgement of receipt of the advance by the seller, the amount of balance price to be paid, the time for payment of the balance price.

f) Time for execution and registration of the sale deed.

g) An undertaking to deliver vacant possession of the property

h) An undertaking to hand over all title deeds

i) A clear description of the property

j) Date and time of the agreement.

k) A default clause stipulating penalty or damages for breach of agreement.

Availing loans from Banks:

Generally banks insist scrutiny of title for 30 years. The original title deeds must be produced. The chain of title from the latest to thirty years back has to be established by clear documents. In most of the cases, originals of all the previous documents is not possible. There may be cases where one big property was divided into several sites, in which case all the purchasers will not get the original of the parent document. However original of the latest document must be produced. In some cases even the original of the last document may not be available, on account of loss of document by fire, misplacing, or for other reasons. In such cases, you will have to swear to an affidavit stating that the original is lost, and not available, and that you have not deposited the document with anybody, nor created any charge. A paper -publication can also be given. However the creditor /purchaser may or may not accept and agree. In such cases the property can be mortgaged only by registered mortgage.

In addition to the above, Latest Khata, or RTC, Conversion order, Encumbrance Certificate for 15 years, latest House tax paid receipt if there is a building, are the further requirements. If all these documents are available, by depositing originals of these documents with the bank, as security for the loan, you can create valid mortgage/charge in favour of the Bank. This type of mortgage is called mortgage by deposit of title deeds. This type of mortgage will not be reflected in the Encumbrance certificate. But such charges can be noted in the Record of rights, or khata if the bank gets the entry made by applying to the concerned authority.

Court Room General Procedure in FAQ

1. Is there any difference between civil and criminal proceedings?

In criminal proceedings, the aim is to punish an offender and proceedings is always between the State and the accused. In a civil proceeding, the aim is to recover property or money, and to order compensation or to grant relief based on a right which has arisen in favor of the person seeking the relief.

2. What are the rights, which can be enforced, in a civil proceeding?

Under Section 9 of the Code of Civil Procedure, every right of a civil nature can be enforced in a civil court.

3. Can the State be a party to civil proceeding?

The State can be a party, if a civil right is claimed by or against the State.

4. What is the meaning of a "cause of action"?

a) "Cause of action" is the set of facts which a person must prove in court, to win a civil suit. It has two aspects, factual and legal, though lawyers often confuse the two. b) From the factual point of view, a person suing in court (the plaintiff) has to all Facts that make up or support his claim. c) The concept of cause of action has a legal aspect also. A person suing in court may be able to establish all facts he has in mind to seek relief. But if those facts themselves do not give rise to a legal right, then even on the established facts, no ground for relief arises.

5. How does a civil suit begin?

A civil suit begins by ' presenting ' a ' plaint ' to court. This can be done personally or through a pleader or an authorized agent.

6. What are the matters to be borne in mind regarding the jurisdiction

of courts?

A suit should be filed only in the court competent to try the particular suit. Limits on the jurisdiction of a court may be (a) monetary limits (b) limits regarding nature of the subject matter (c) local limits. Lower courts can try cases not exceeding a certain value. Again, some suits can be filed only in specified courts. For example suits regarding public trusts can be taken up by the District Judge. "Writs are extraordinary proceedings and can be taken up only in High Courts or the Supreme Court. Most important are local limits on the court's jurisdiction".

7. What is pleading?

Pleading necessarily means plaint or written statement. The facts upon which a suit is based or a defense is raised should be specifically pleaded. Pleadings must be liberally construed. The object of the pleading is to ascertain the real dispute between the parties (Order VI).

8. What particulars must be given in the pleadings?

a) The pleading must contain only the statement in concise form of the material facts on which the party pleading relies for his claim or defence. pleas and facts constituting them should be clearly expressed. Evidence need not be pleaded. Pleadings need not refer to provisions of law when necessary averments are

made. There is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. In a pleading (plaint or written statement) only facts are required to be pleaded while in a writ petition or counter affidavit not only the facts but also the evidence in proofs of such facts

have to be pleaded and annexed to it. A plaintiff is not entitled to relief upon the facts and documents which are neither stated nor referred to in the pleadings. b) If a party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, then all such particulars must be stated in the pleading. c) Every

pleading shall be signed by the party and his pleader. In cases where the plaintiff or the respondent is not able to sign due to any reasonable cause, then the pleading may be signed by any person duly authorized by the parties concerned. d) Address must be furnished in every pleading. e) Every pleading shall be verified by the party or one of the parties pleading or other person who is acquainted with the facts of the case (Order VI).

9. What particulars should a plaint contain?

a) The name of the court in which the suit is the brought. b) The name, description and place of residence of the defendant, as far as they can be ascertained. c) The name, description and place of residence of the plaintiff. d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect. e) The facts constituting the cause of action and when it arose. f) The facts showing that the court has jurisdiction. g) The relief, which the plaintiff claims. h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim the amount so allowed or relinquished. i) A statement of the value of the subject matter or the suit for The purpose of jurisdiction and court fees, so far as the case admits. j) The relief which the plaintiff claims either simply or in the alternative; and k) Relief in respect of several distinct claims or causes of action funded upon separate and distinct grounds must be stated separately and distinctly.

10. Is there a form prescribed for the "plaint"?

a) No particular form is prescribed. (Although some forms are given as specimen in a schedule to the code, they are not obligatory. b) However, it is necessary that the plaint should be divided into numbered paragraphs. c) Facts should be stated briefly and there should be not repetition. d) Legal propositions are not required to be stated in the "plaint"

11. What is the reply to the "plaint" called?

The reply to the "plaint" as given by the defendant is called " written statement" (Order VIII).

12. What are rules for drafting written statement, set off and counterclaims?

The dependent must raise all matters in his plead which show that the suit is not maintainable or such ground for defence. New facts must be specifically pleaded. It is the duty of defendant to produce the document upon which relief is claimed by him.

13. What is the proper way of denying an allegation made by the plaintiff?

The denial must be specific and not evasive.

14. Can a judgment be passed by the court without hearing the arguments?

If the Judge commences to write a judgment before the completion of entire evidence and does not hear the arguments of the counsel, then it is considered as gross irregularity in the trial of the case. The court is bound to hear the party and an application presented before the passing of final decree cannot be rejected without hearing.

15. What are the consequences if the Witness fails to appear before the court?

As such it is the duty of the person or witness summoned to give evidence or produce document at the time and place named in the summons. But if the person does not appear or appears but fails to satisfy the court, the court can impose a fine not exceeding five hundred rupees or attach his property. if the witness is confined or detained in a prison, then the court has power direct the officer-in-charge of the prison to bring such person before the court for giving evidence.

16. What is "Adjournment" and what is the procedure for seeking adjournment in the court?

'Adjournment' in legal sense means putting off or deferring proceedings in a case before court to another day. Adjournment is a matter of discretion of the Court which must be exercise, assorting to the well established principles and not in an arbitrary manner. Sufficient cause must be shown to seek adjournment of the hearing of the suit, at any stage of the time ( Order XVII). The court can also impose cost on the party seeking adjournment if the court postpones the further hearing of the suit.

17. Is it necessary to engage a lawyer?

No. A party can appear in person in court and conduct his or her own case.

18. What happens to the suit if the plaintiff does not appear at the hearing of the suit?

a) If the plaintiff does not appear at the first hearing, the suit must be dismissed. The law is mandatory on the point (O. X - Rule 8). b) However, if the plaintiff can later satisfy the court that he was prevented by sufficient cause, from appearing at the earlier hearing he can apply to the court for restoring the suit.

19. What are the consequences of plaintiff failure to pay either the court fee or the posted charges ( called talbana in District Courts ) for service of summons?

On the failure of the plaintiff to pay the court fee or postal charges for service, the court may make an order that the suit be dismissed (O.IX - R.2).

20. What will be the fate of the suit if neither party appears?

The court may make an order that the suit be dismissed ( O.IX - R.3). But, if the plaintiff satisfies the court that there was sufficient cause for such failure to either pay the court fee or talban or non appearance in court, then the court must restore the suit ( O.IX - R.4).

21. What is the position if the defendant does not appear at the hearing of the suit?

a). If the defendant does not appear the court can proceed to hear the suit in his absence, that is to say, the suit is heard 'ex-parte'. b). However, if the defendant can later satisfy the court that his absence at the earlier hearing was due to sufficient cause, he can apply to the court for an order that he be join the proceedings.

22. Can a judgment be passed ex-parte?

a). Yes, if the court has ordered that by reason of the defendant's absence, the Case should proceed ex-parte. After such an order, the court can pr oceed even To pronounce judgment ex-parte if the stage for judgment arrives. b). However, such an ex-parte judgment can be set aside by the court if the defendant subsequently applies for setting it aside on the ground that (i) he had not been served with "summons"(notice of suit) or (ii) that though he had been served with the notice, he could not appear and that his non-appearance was due to sufficient cause.(AIR 1955 SC 425).

23. Can a civil court give an oral judgment?

No. A judgment must be in writing and must contain the points for decision, the decision on those points and reasons for the decision.

24. What is the distinction between "judgment" and "decree"?

'Decree' means judicial determination of the matter in dispute by the court in which the court determines the rights of parties to the dispute. Such determination of rights must not be subject to terms of conditions. Thus, the decision should be complete and final as regards the court which passes it. 'Judgment' means a statement given by judge of the grounds of a decree or order. A judgment includes points of dispute, the decision and the reasons for such decision. It is not necessary to give a statement by the judge in a decree but it is necessary in a judgment.

25. What is procedure for procuring copies of judgment?

The copies of type written judgment are available to the parties after the pronouncement of the judgment on payment of such charges as prescribed by the High Court Rules.

26. What is meant by 'execution'?

'Execution means the enforcement of the decree.

27. What is the meaning of 'affidavit'?

a) An affidavit is a statement in writing made on oath before the competent authority ( say, an Oath Commissioner). This is later produced in court to support the case of the party at whose instance the affidavit was sworn by a witness. b) Generally, witnesses must themselves give evidence in court. But the law allows affidavits to be given in evidence for certain purposes e.g.in support of applications for temporary orders

28. Can a suit be withdrawn?

Yes, but once a suit is withdrawn, the plaintiff cannot file a fresh suit on the same cause of action i.e. for enforcement of the same claim unless he had obtained. from the court, permission for filing a fresh suit.

29. Can a suit be compromised or settled?

Yes, the parties can, by mutual agreement, settle the dispute and reach a compromise.

30. Can a suit be filed by or against the Government or public officers in their Official capacity?

Yes, a suit can be filed by or against the Government. But, no suit can be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until two months, next has expired after the notice in writing has been delivered to the Central Government of State Government or any other functionary of the Government (Section 80 of Civil Procedure Code). The Government pleader in any court is the agent of the Government for the purpose of receiving processes against the Government issued by such courts.(O.XXVII).

31. Has a poor person ( indigent person) any privileges in litigation?

A person is considered as an indigent person if he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in such suit. Every application for permission to sue as an indigent person, in proper form and duly presented, will be examined by the court regarding the merits the claim and the property of the applicant. If the court grants permission to the applicant to sue as indigent person, then such a plaintiff is not liable pay any court fee in respect of his petition. The court may also assign a pleader to an un-represented indigent person. If the indigent person succeeds, then the court can order the

Government to recover the court fees from any party ordered by the decree to pay the same ( Order XXIII ).

32. What is injunction?

An 'injunction' is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or a thing.

33. What are the consequences of breach of an injunction?

The consequences are : 1. The court may order that the property of the person guilty of such disobedience be attached. 2. Such person may also be arrested for 3 months ( maximum punishment) unless the court directs his release. 3. If such breach continues for more than one year, the court may sell such property and award suitable compensation to the injured party.

34. What are Interlocutory Orders and why are they passed?

Any order, which is not the final order in a suit, is called an Interlocutory Order. Interlocutory orders are passed to assist the opposite parties in its prosecution of their case. They are intended to prevent the ends of justice from being frustrated.

35. What is appeal?

Appeal means judicial examination of the decision by a higher court. It is a remedy for getting the decree of the lower court set aside.

36. What is meant by "revision"?

"Revision" connotes the power of the High Court to interfere with the Judgment of a lower court in interests of justice. While appeal is a right, revision is a matter of discretion of the High Court. It is an extraordinary power.

37. What is the distinction between appeal, revision and review?

Appeal lies to a superior court which may or may not be a high court But revision application lies only to High Court. Appeal is a right given by the Statute while revision is only a privilege. Power of revision is exercised by a superior court to a court which decides a case, but the power of review is exercised by the same court

which passed the decree or order. Power of revision is exercised only when there is no appeal To the High Court but review can be made ever when such appeal lies.

38. What is the meaning of "res judicata"?

'Res' in Latin means thing a 'Judicata' means already decided. This rule operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. Its basic purpose is - "One suit and one decision is enough for any "single dispute". The rule of 'res judicata' does not depend upon the correctness or the incorrectness of the former decision. ( AIR 1983 NOC 69 (All). It is a principle of law by which a matter which has been litigated cannot be re-litigated between the same parties. This is known as the rule of "res judicata" (thing decided). The aim of this rule is to end litigation once a matter has been adjudicated. It aims to save the court time and prevent harassment to parties.

39 .What are the objects of summary procedure?

The object of summary procedure is to prevent unreasonable obstruction by the defendant who has no defence and quick disposal of a suit. Under this procedure, the defendant is not allowed to defend his case unless he obtains leave to defend from the court.

40. What are the forms of "cruelty" recognized by the Courts?

* Persistent denial of food, * Insisting on perverse sexual conduct, * Constantly locking a woman out of the house, * Denying the woman access to children, thereby causing mental torture, * Physical violence, * Taunting, demoralising and putting down the woman with the intention of causing mental torture, * Confining the woman at home and not allowing her normal social intercourse, * Abusing children in their mother's presence with the intention of causing her mental torture, * Denying the paternity of the children with the intention of inflicting mental pain upon the mother, and * Threatening divorce unless dowry is given.

41. What is a "matrimonial home"? What rights do women have in their matrimonial home?

The matrimonial home is the household a woman shares with her husband; whether it is rented, officially provided, or owned by the husband or his relatives. A woman has the right to remain in the matrimonial home along with her husband as long as she is married, though there is no definite law regarding this right. If a woman is being pressurized to leave the matrimonial home, she can ask the Court for an injunction or "restraining order" protecting her from being thrown out. This can usually be obtained quite easily. It is generally advisable not to leave the matrimonial home; it is easier to get a court order preventing a woman being thrown out than to get an order enforcing her right to return to it once she has left or been thrown out.

42. What is an "Injunction" and how does it apply to domestic violence cases?

An injunction is a court order directing a person to do or not to do something. A woman has a lot of flexibility regarding what she can request the Court to order. For instance, If she is being stalked by somebody (including her husband), she can obtain injunctions against the person coming near her home of place of work,

or even telephoning her.

43. What can be done in the case of dowry-related harassment or

dowry death?

Section 498-A of the Indian Penal Code covers dowry-related harassment. As with other provisions of criminal law, a woman can use the threat of going to court to deter this kind of harassment. The Indian Penal Code also addresses dowry death in Section 304-B, If a woman dies of "unnatural causes" within seven years of marriage and has been harassed for dowry before her death, the Courts will assume that it is a case of dowry death. The husband or in-laws will then have to prove that their harassment was not the cause of her death. A dowry death is punishable by imprisonment of at least seven years. When filling an FIR (First Hand Report), in a case where a woman is suspected to have been murdered after a history of torture due to dowry demands, the complaint should be filed under section 304-B rather than under section 306, which deals with

abetment to suicide. Section 306 should be invoked when a woman commits suicide because of dowry-related harassment.

44. Can you refuse to have sex with your husband? is there a law on

marital rape?

Since India does not have a law on marital rape, even If a woman's husband has sexual intercourse with her without her consent, he cannot be prosecuted for rape. However, excessive and unreasonable demands for sex, or demands for unnatural sex have been considered forms of cruelty and may entitle a woman to a divorce. If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure ( e.g. because of threats to injure or to stop paying maintenance) is not considered valid.

45. What can a woman do to prevent domestic violence?

One option is to get the woman's husband to execute a "bond to keep peace", or a "bond of good behaviour" through the Executive, Magistrate who can order the husband to put a stop to domestic violence. The husband can also be asked to deposit securities ( i.e. money of property) that will be forfeited if he continues to act violently

46. Distinction between Civil and Criminal Law

The distinction between civil and criminal law is a basic part of the Indian legal system. Civil laws deal with the rights and obligations of people and what is needed to protect them, While criminal law deals with offences and their punishment. In a criminal offence, the State takes upon itself the responsibility to investigate and collect evidence ( through the police), to fight the case in court (through a public prosecutor) and enforce the punishment. Robbery, murder and kidnapping are examples of criminal offences. Criminal offences are dealt with by the Indian Penal Code (IPC). The Procedure by which a criminal trial is conducted is quite different from the processes involved in a civil trial. An important difference is that the "standard of proof" required in criminal cases is much higher than in civil cases. Since criminal law is centrally linked with issues of punishment, allegations and facts must be proved "beyond reasonable doubt", so that innocent people are not punished. In civil cases, the courts scrutinise the "balance of probabilities" before deciding in chose favour to make a judgement. However, there are some situations in which both civil and criminal law apply. Inflicting physical violence on a wife or daughter-in-law as well as subjecting her to cruelty - physical, mental or emotional - in a marriage is not only a civil offence and provides ground for divorce ( a "matrimonial offence"), but is also a criminal offence under the Indian Penal Code, for which a person can be imprisoned. The laws dealing with marital abuse have been made very stringent through amendments in the Indian Penal Code and the Evidence Act.

47. How long after marriage can a person seek divorce Under Hindu Law ?

Under Section 14 of the Hindu Marriage Act. 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner's case is of exceptional hardship High Court is empowered to grand leave to file the case before the expiry of one year.

48. If the Husband marries another woman, What action can be taken Under Hindu Law?

Under Section 17 of the Hindu Marriage Act, bigamy is punishable Under Section 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine. So a complaint be lodged against the husband with the police.

49. What is the minimum required age to marry under The Hindu Law ?

According to Section 5 (iii) of the Hindu Marriage Act, the bridegroom has to complete 21 years of age and the bride 18 years of age. Any marriage in contravention of this attracts simple imprisonment, which may extend to 15 days or fine, which may extend to Rs. 1000/- or with both.

50. How do you obtain divorce by mutual consent ? when can a person re-marry after obtaining a decree of divorce?

Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. "Living Separately" has been now defined by the Supreme Court as "not living as husband and wife and not performing marital obligation", even if the husband and wife are living under the same roof. A joint petition has to be filed in this regard and after the filing of the same, the Court grants a minimum period of six months (and

maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has

not been obtained by force, fraud or undue influence. With regard to the remarriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.

51. If the Wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Is there a time period for filing of divorce petition?

In case the wife has left the house of the husband and is living away from him without any reasonable cause, the husband is entitled to judicial separation or divorce. The condition however, is that the desertion of the wife should be for a continuous period of not less than two years, immediately preceding the presentation of the petition for grant of judicial separation or divorce.

52. If one of the spouse is not at all ready to give the divorce at any cost, then how much maximum time it can take to get the decree for divorce?

If one of the spouse is not ready to give divorce at any cost, then the remedy for the other spouse is to file a petition for divorce before the court. However, a divorce can only be granted under certain prescribed circumstances under Hindu Law which are described in Section 13 of the Hindu Marriage Act. These grounds include cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years. The period of time for seeking a divorce decree can really not be specified, because it depends upon a number of circumstances. However, still a general estimate which can be given in an average litigation of such a nature is around 4 to 5 years before the District Court.

53. Once a joint petition for divorce is filed by mutual consent, is their a way ( Legal loopholes / by pass procedure) to get the decree for divorce within 2 months of filing the petition and not after 6 months?

If one manages to get the decree for divorce in 2 months (with the help of some X lawyer at some Y Court)then later on, can anyone of husband or wife at any point of time in his/her life appeal against the decree?

Although under the provisions of Section 13-B of the Hindu Marriage Act 1950, the requirement is that after the presentation of a petition for divorce by mutual consent, the court has to adjourn the matter for a minimum period of 6 months (and not later than 18 months) where after the parties have to again come back to

the court for making s second motion confirming the mutual consent earlier given by them. However, In a number of judgments the courts have held that this period of six months can be waived if the court is convinced that the provisions of the said section have been complied with and that there in no force, undue

influence or coercion exercised by one spouse against the other. The courts are a such granting decree for divorce by mutual consent without waiting for a period of six months specified under the Hindu Marriage Act. Such divorce decree granted prior to the period of 6 months cannot be normally challenged. It is only under vary rare circumstances where it is proved by the spouse that the said mutual consent was not given out of his/her free will or was given under some grave force or threat of life can the said decree for divorce be cancelled. But the same is also applicable to a divorce decree granted by mutual consent after waiting for a period of six months.

54. What is the right of husband on the child at the separation?

After divorce/separation, the husband can move an application for the custody of a child under Guardian & wards Act and if the parties are Hindu then under Hindu Minority & Guardianship Act. The husband also has a right to claim the right of meeting the child and to take the child during holidays till the disposal of

the petition for custody. The parties can ask for the above said interim relief from the Court.

55. What is the punishment for a man who tortures a woman mentally, physically or verbally?

It is an offence punishable under section 498A of the Indian Penal Code, 1860, which is imprisonment for a term which may extend to three years and shall also be liable to fine.

56. Mental Cruelty can be pleaded as a ground for devorce.?

Mental Cruelty can certainly be pleaded to claim divorce from the other spouse. Under Section 13(1) (ia) of the Hindu Marriage Act, 1955, either spouse can seek divorce or judicial separation on the grounds of cruelty, which includes mental cruelty. The wife is fully justified in living away from the husband in case she is suffering mental cruelty at the hands of the husband. A petition for divorce or judicial separation can be filed detailing each and every incident of mental cruelty. The instances are required to be specific and should be of such a nature as to be construed of causing mental agony to the wife and should not be merely day to day minor quarrels which normally take place in a married life.

57. After separation I want to give one my houses to her and also give some amount of money. How can I do this. Is any registration required for giving her the house can the husband give any property to the wife at time of divorce?

The husband can give a house or any amount of money to his wife while agreeing for divorce by mutual consent. However, as the consent can always be withdrawn within the period of six months it is always better if the said transaction is carried out when the second consent statement is made after six months of the filing of

the petition and when the divorce decree is being granted. The transaction of property requires registration with the Sub-Registrar. Since, no amount of consideration would be paid by the wife for acquiring the said property, It would be appropriate if a gift deed is executed and registered with the Sub-Registrar, after paying the requisite stamp duty on the same.

58. How can divorce be obtained Hindu Law?

In the event of your being a Hindu, that is Hindu, Sikh, Buddhist or Jain by religion, your would be governed by the provisions of the Hindu Marriage Act, 1955. Divorce under the said Act can be obtained only on the grounds specified under Section 12, whereby a person can seek divorce on the following grounds: (a) If the other party after the marriage had voluntary sexual inter-course with another person. (b) If the other party after marriage has treated the complainant with cruelty. (c) If the other party has deserted the complainant for a continuous period of not less than two years. (d) If the other party has seized to be Hindu by converting to another religion. (e) If the other party has been in curably of unsound mind or has been suffering from mental disorder of such a nature that the complainant cannot be reasonably expected to live with her/him. (f) If the

other party has been suffering from an incurable form of leprosy. (g) If the other party has been suffering from venereal disease in a communical form. (h) If the other party has renounced the world. (i) If the other party has not been heard of being alive for a period of over 7 years. Divorce can also be obtained by mutual

consent by husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. A joint petition can be filed in this regard and after the filing

of the same the Court grants a period of six months for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If

during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted.

59. What is a will? How do you make it ? How do you register it?

1. A WILL is a legal declaration of the intention of a person with respect to his property or will, which he desires to take effect after his death. WILL is an untitled document which take effect after the death of the person making the Will and it can be revoked, modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, he should not be a minor and should not be person of unsound mind. 2. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses atleast. 3. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be

accompanied by the person who have signed as witnesses on the said WILL. The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars for each district and you have to inquire from the concerned office

as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL.