IScrutiny of title deeds of the property is the first and foremost exercise the advocate has to undertake. A clean and marketable title, free from all doubts and encumbrances vested with physical possession, is very important. The ownership of the titleholder can be traced from the title deeds and revenue records.
It is the duty and responsibility of the advocate to safeguard the interest of his client. The advocate shall thoroughly search and scrutinize the marketable title of the property and genuineness of the documents. He shall make it very clear to his client the extent of risk involved in the transaction and how to make payments to the seller.
The origin of the property is very important to trace the title of the property. It is otherwise called ‘Root of Title’. It is the safest way to determine the origin of the property and trace its marketable title. Documents covering a minimum period of 42 years must be scrutinized. In the case of Adverse Possession against individuals or Conflicting Claims (other than mortgage) against individuals, documents covering a minimum period of 12 years must be checked. As regards the period of limitation against the Government, documents covering a minimum period of 30 years must be checked. if a person is enjoying the property for more than 30 years, however, illegal title by adverse interest against the Government as per the limitation Act. Also, as per the Section 90 of the Indian Evidence Act 1 872, a document executed 30 years before is presumed to be valid.
After ascertaining the origin of the property, it should be followed up by methodical examination of events and further transaction, if any, in an uninterrupted and sequential manner, involving the previous owners and the present owner of the property. Here, the advocate has to very carefully look into all aspects from various legal angles as to how the property was transferred from the previous owners to the present owner. Such a transfer may be by possession, inheritance, settlement, will, sale, mortgage, release, gift etc., involving such intermediate parties. For supporting such a transaction, the advocate has to carefully examine the title deeds and other supporting documents like revenue documents and other records. Also, verification of the identities of the names of the parties and their family connection, wherever they are relevant, and proceedings, if any, involving the parties before any court of law, other legal forums and authorities including revenue authorities, must be done.
The nature of various statutory clearances obtained from the relevant authorities like revenue, land reforms, income tax, etc., required for completing the transaction must be informed to the parties. In case of purchase of agricultural land, various clearances must be obtained before executing the deed of conveyance.
The ‘ present status’ of the property is the most important point to be examined. The advocate has to find out who is the present owner, how he got the property, what title deeds and supporting documents he is holding, is it his ancestral property or self acquired property and who are his legal heirs. If the legal heirs are majors in age, the vendor must ensure their presence while executing the deed of conveyance. If they are minors in age, the vendor has to get the permission from the court before executing the deed of conveyance. In some cases the vendor may conceal the fact of legal heirs. To find out the truth, the advocate must ask the vendor to produce either the succession certificate or the family genealogical tree issued by the revenue authority. If necessary he must see the family ration card for further clarification.
The advocate must find out in whose name the khatha stands, whether the khatedar possesses up-to-date tax paid receipt in his name and up-to-date encumbrance certificate to establish his right, title and Interest in the property- The advocate has to check the encumbrance certificate covering a relevant period, generally above 1 2 years up to 42 years from which it would be known what kind of charge has been created on the property and whether such an encumbrance is subsisting or not. Municipal and other revenue authorities too maintain records as to who is in possession of the property, what is the amount of tax payable on the property and up to what period tax has been paid. All this can be learnt from these records. ‘Present status’ is one of the important factors to establish the present ownership of the property.
After thoroughly scrutinizing the documents, the advocate has to check up all documents for legality with the concerned departments just to ensure that the documents are genuine, that they originated from the departments and that they are not fakes. In addition, the advocate has to find out from the department whether there is any attestation notification or proceedings against the present owner. In case of buildings it must be ensured that it has not been served with demolition notice.
The identity of the property must be checked on the spot. Measurements mentioned in the documents must tally with actual physical measurement of the land available on the property. It must also be ensured that there is no encroachment on the property. In case of encroachment, the measurement of the available land must be recorded and this must be mentioned in the deed of conveyance The boundaries mentioned in the schedule surrounding the property must be checked physically.
Though paper notification is optional, it is always advisable to notify in a leading local newspaper about the buyer’ intention to purchase the property. This is done to safeguard the interest of the purchaser. Even after examining the various documents, the Advocate may not be able to find out whether the property is truly free from any claim or not. A paper notification will beget response from a genuine claimant. Therefore, paper notification is the best way to avoid legal problems for the purchaser at a later date.
In case of a vacant site, the purchaser may, with the permission of the vendor fence the property with barbed wire or he may construct a compound wall and put a signboard, if necessary, to intimate the ownership of the property.
Verification of title is very important. It is not merely tracing the title on the record but also examination of the genuineness of the records, identification of the property, notification in a newspaper and physical possession of the title of the property. A mere suspicion of fraud that cannot be made out will not make the title doubtful and the advocate cannot reject the title.