• Query on Land Deed

My father bought a piece of land in Santoshpur, Kolkata-700075 and a land Deed was made in the year 1997. In the year of 2003 my father gave the power of attorney to a real estate developer (Promoter) to make a building of G+4 in this land. In the year 2004 my father have an agreement with the building promoter in a stamp paper that after the completion of the building the promoter will get 70% to 65% portion of the property and my father will got 30% to 35% of the property.
The construction of the building was completed on 2008. My father got 2 flats and the Prompter got 6 flats out of which he has already sold 7 flats and in 1 flat he lives. My father pays the corporation tax for the 2 flats and for the Mutation certificate from CMC as the owner of the 2 flats. We live in one flat and the other own is for let out.
Now I am applied for education load and the collateral will be the flat that we live in. the bank requires a deed either of flat or of the land. We do not have the sale deed of the 2 flats because we were the owner of the land. My father gave the land deed to the promoter.  Now when we requested him to return the land deed, he says that since the building is constructed in this land it has 8 flats so all the 8 flat owns are the owner of this land and that is why he will not give it back to us. 
I think my father still have the right to have the land deed, first because he is the one who purchased the land, second he is one of the party whose name is mentioned in the land deed and the buyer of this land and third the other owner already have the sale deed of the flats they bought from the promoter. But we do not have any deed apart from the land deep except the mutation certificate and the Possession letter
I seek your advice.
Asked 5 months ago in Civil Law from Kolkata, West Bengal
1) it is necessary to peruse development agreement signed by your father with builder 

2). On flats being constructed and sold flat owners builder would form cooperative society of flat owners and conveyance of land has a to be executed by your father in favourm of flat owners 

3) till society or association of flat owners is formed your father would continue to be owner of land 
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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1. It is a fact that all the flat owners are the equal title holders of the land but there is no reason for the promoter to retain the original land title. In fact you should not handed over the deed for the land to him at all,

2. The Bank will not advance any loan against mortgage of the said flats unless you submit tangible and transferable documents of the properties to be mortgaged by you. 

 
Krishna Kishore Ganguly
Advocate, Kolkata
12112 Answers
231 Consultations
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Check the Encumbrance certificate details and latest possession certificate details with regard to the land. Your builder says wrong comments. If he registered the flat in the name of 8 individual owners and distributed the share to them by creating a new registered deed then the prior deed has not kept in their hand. Only the certified copies are enough for future purpose to others. Actually the builder may mortgage the same before the bank and bank kept the same. 

What are the terms were written in owner and builder agreement with regard to the property? No Bank will not advanced any loan against mortgaged property by proper inspection and perusal of documents 
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
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No he is right. The land belongs to all of the owners in equal proportion where per flat is equal to one eighth share. You can however mortgage the flats with the bank and there shall be no problem to that effect. Firstly you need to get mutation certificates from the corporation bearing the name of your father as the owner of the flats.

Also you can show the old agreement as well as enter a new one where the promoter recognises your title to the two flats..

However all this will be different if the flat has been built as a cooperative housing society flat.
 
Saptarshi Banerjee
Advocate, Kolkata
183 Answers
4 Consultations
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In a situation like yours the developer is not the transferee or buyer of the flats as per the Transfer of Property Act, 1882 under the Joint Development Agreement. The sole ownership lies with the owner of the land,
Once the plan is approved, the owner should get an allocation agreement done recording the constructed area which comprises his share and the area going to the developer. Once the building is ready and the allocation agreement is done, it is better that a deed of declaration is executed recording the constructed area, which would reflect the area constructed for the site owner under the joint development agreement
The license/authority to enter the land is typically given by way of a power of attorney issued in favor of the developer.The general power of attorney should be registered on appropriate value stamp paper with the concerned authorities (registrar) in order to be legally binding on both parties. 
For the purposes of transfer of the constructed space by the builder, the co-operation of the owner is highly essential. Once the construction of the flat is constructed and occupancy right is granted by the competent authority to the owner, the owner will himself execute the sale deed in favour of the flat buyers. The developer will have the right for specific performance which shall be specifically enforceable in a court of law if the land owner fails to cooperate with the developer in selling/leasing the built-up space on the land.However, in case of breach of the terms of the development agreement, the land owner would have the right to revoke the power of attorney.
Further after construction of flats is completed and handed over to the purchasers, the flat owners or the builder will form a flat owners association after which the conveyance of land shall be executed in favor of the association/society by the landowner has  to be executed, till then the land owner shall be the owner of the entire area excluding the constructed flats, thus there is no reason for the promoter to retain the original land title.
You may ask him to hand it over. 
T Kalaiselvan
Advocate, Vellore
14010 Answers
127 Consultations
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Your father is also the owner of one of the flats, so he has the right to have a copy of the sale deed. Issue a lawyer's notice to the builder to deliver a copy of the deed, and if he does not accede to your demand then a suit for injunction may be filed against him.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
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