Don't purchase the property
2) the mortgage redemption deed is not available
3) endorsement made clear clearly mentions that in case any litigation arises in future you cnnaot use the said endorsement
Second opinion on buying a villa property in Sarjapura Bangalore
Property details : Villa property @Sarjapura, (Part of Anekal Taluk) Flow of title: 1. Mother deed not available, First available document to trace the ownership of the land is a Mortgage deed dated 01.11.1934, wherein the owner (say Venkat) of the land has mortgaged the land in favour of a person , Muni (an individual , not a bank). 2. Partition deed (10.03.2006) entered between the family of Venkat, wherein the part of the land where the villa property is being constructed has been allotted to Pillanna. (Mutation Register available). 3. Further the land has been converted from Agricultural to Residential land, Conversion order available. 4. changed hands to two more parties, which are registered and reflecting in RTC and registry records. 5. Finally the builder holds a GPA and JDA with the present owners for constructing and to sell the same. Records available: 1. RTC for the Period 1969 to 2006 reflecting Venkat's name, later in Pillanna name and subsequent owners. 2. EC available till date, reflecting the respective owners name. (no litigation filed till date) 3. IL and RR not available (Endorsement issued by the Tahsildar) 4. Kardha tippany copy from period (1959) available , reflecting Venkat's name. 5. Village pakka book, Moola Survey Tippany copy. 6. PTCL endorsement , saying that there are no PTCL litigations filed so far with respect to this property. 4. Khata certificate available 5. All relvant NOC applicable for the Construction is available. 6. CC, Plan approval available. Legal Opinion from my Lawyer: 1 . Property once Mortgaged, remains mortgaged always though the Mortgage happened in 1935. Hence, without a Mortgage redemption deed the property doesnt hold a clear marketable title. 2 . Second, A modified form of PTCL endorsment was sought by my Lawyer. PTCL endorsement from tahsildar saying, that this particular property doesn't even come under PTCL act) - This endorsement was later sought and provided by the builder but with a clause added. "Endorsement says, Based on the available records verified at taluk office, this property doesnt come under PTCL act. but, in case if any problem or litigation arises in future that this endorsement cannot be used in court). 3. Indemnity bond and Affidavit from builder in favour of me. which has all the clauses, like any problem arises with respect to the land the builder will compensate in present market rate to me the buyer. - Builder agreed to provide this document in favour of me. Final opinion from my lawyer , because of the clause added in the later provided PTCL endorsement. My lawyer suggested me not to buy this property. He is concerned that the land might attract PTCL act, as the IL and RR documents are also not available to cross verify. I wanted to have second opinion on this matter, hence thought of KAANOON as the best place to get opinions from experts. Please help.
Asked 7 years ago in Property Law
Religion: Hindu
7 Answers
Taking into consideration that the Mortgage was created in the year 1934, and that subsequently Venkat has not got the Deed of Redemption of Mortgage duly executed from Muni, legally Muni or his legal heirs can stake a claim in the land, if they have to stake a claim then the period of limitation under the act would be 12 years, which is long over.
Therefore in the light of the above, if the builder is willing to execute an Indemnity bond in your favour, this should suffice.
in my opinion therefore you can proceed to buy the villa from the builder provided other clearances in respect of the project are in order.
The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978[1] (Karnataka Act 2 of 1979) or PTCL is a statute of Karnataka.
This law which was introduced in 1978 is retrospective in nature and is considered an ex post facto law. Currently over 10000 cases are pending before the office of the Deputy Commissioners across the State Karnataka.
Therefore it will not be a surprise if the Tahsildar is not aware of any pending litigation on such lands because they hardly come to their knowledge since it is within the Deputy commissioner level and not before a court of law.
The preamble of the Act reads:
An Act to provide for the prohibition of transfer of certain lands granted by the government, to persons belonging to the scheduled castes and scheduled tribes in the state, which means any land granted to the landless agricultural labourers belonging to scheduled castes and scheduled tribes, cannot be purchased. Anyone who purchases such a property, will not get clear and marketable title; such property will be eventually acquired by Government and returned to the original owner without any compensation to the purchaser.
The problem lies in the fact that when the grantee goes to sell the land which he is not supposed to the Govt does not refuse to register this Sale but officially accepts it as a legal sale. Later the grantee goes back to the Govt and claims this land back. The law then says the land has to be returned to the grantee without any compensation.
If your advocate opines that this may not be worth buying owing to the lacuna pointed out, you may exercise caution.
Even the mortgage redemption may be overlooked but the PTCL Act cannot be ignored since this is having a retrospective effect even though this law was in the year 1979.
You may decide to go by your lawyer's opinion since he has thoroughly scrutinised the documents and all relevant papers personally.
The builder's assurances or indemnity will last only till you have completed the purchase formalities after that you will not be able to trace the builder, he would have fled the town itself.
in absence of redemption deed this property remain in mortgage. partition or any alienation cannot change the nature of property i.e. mortgage property but this is not an absolute rule. if mortgagor did not object partition and also did not claim redemption within a considerable period of time her (muni) conduct shows that she has waived her right. according to section 58 of the TPA a mortgage cannot subsist for indefinite period because it is against the rule of perpetuity. you should buy this property.
1. Your lawyer has verified the documents and is very strict in giving his opinion.
2. the mail problem in your case is that you are not sure whether the said mortgaged property has been redeemed/released by the mortgagee or not.
3. If the property is still under mortgage, then the mortgagee can claim to enforce his right on the said mortgaged property later on.
4. Your Vendor's assurance that he will compensate the eventual loss is of no use since you will not get him if any problem crops up later on in connection with the said property and if you file any case against bhim, it may take 20 years to be disposed off.
5. Try to get the said mortgage released by the mortgagee or his legal heirs in case he is no more.
@ Advocate Kalaiselvan, As you pointed out, My lawyer was also on the same thought as yours. He was ok with the Mortgage part, but he was not convinced with the PTCL part. For any property (if the Mother deed is not available as in this property , how can we make sure the property doesn't come under PTCL Act?) Who is the competent authority in Bangalore to endorse that the said property doesn't attract any PTCL act.? Thanks Vijay
Asked 7 years ago
The land revenue department are the authority for all such records and approvals.
Any endorsement or confirmation can be had from that department alone.
No doubt even in my opinion, this is a hitch to buy the property, though it may be ignored and the fears may be set aside.
But for this one should be ready to face problems that may arise in future (may be nothing of the sort may even arise).
You decide patiently and dont rush up.
If mother deed is not available there is always damsocles sword hanging over your head
2) you can never be sure that property does not come under PTCL act