• Actual area is less than area in sale deed

I purchased land of about 3600 soft in Chennai Suburb in 1970s from a person who was allotted this land in an approved layout by a registered cooperative society . During house construction in late 1980s it was noticed that the actual area in only about 3100 sqft and the cooperative society informed me that the land area was actually 3100 sqft and the allottee paid the sale consideration for only 3100 sqft and the area of 3600 sqft (in words and figures)!was wrongly mentioned in sale deed  executed between the society and the allottee and got registered. I also feel it is a genuine mistake and am satisfied that there is no mischief. The original allottee is no more and his legal heirs Whereabouts are not known to me . 
In case I want to sell this property, will it create any problems. Can I obtain a patta in my name after taking the actual measurements , make a suitable recital in the sale deed at the time of sale and proceed with registration without any hassle.? Will stamp duty be on actual area or the increased area wrongly stated earlier.
Or is there any other course of action to be taken?
Asked 4 months ago in Property Law from Chennai, Tamil Nadu
Religion: Hindu
Society has to execute deed of rectification in favour of lthe allottee or his legal heirs to rectify the mistake in area of land 

2) it will not create any problems of you want to sell your land 

3) stamp duty woukd be upon area mentioned in your sale deed 
Ajay Sethi
Advocate, Mumbai
23391 Answers
1229 Consultations
5.0 on 5.0
 You can get patta in your favour, but it is upto  revenue authorities tivgive Patta for land showing in documents or actual land available.  Better to sell by stating actual facts if you sell land by executing  document by mentioning 3600 Sqft it may later leads to complications, prospective purchaser can file a case by stating that he had paid for 3600 sq. ft and in fact there is only 3100 sq.ft  available.
Lakshmi Kanth
Advocate, Hyderabad
230 Answers
2 Consultations
4.8 on 5.0
1) it is always better that deed of rectification be executed to rectify mistake in the area of plot 

2) deed of rectification shoukd be duly stamped and registered 

3) if allottee legal heirs not available obtain letter from society that actual area is 3100 sq. feet 

4) stamp duty would be payable on 3100 square feet as mentioned in sale deed
Ajay Sethi
Advocate, Mumbai
23391 Answers
1229 Consultations
5.0 on 5.0
In case I want to sell this property, will it create any problems. Can I obtain a patta in my name after taking the actual measurements , make a suitable recital in the sale deed at the time of sale and proceed with registration without any hassle.? Will stamp duty be on actual area or the increased area wrongly stated earlier.
Or is there any other course of action to be taken?





If you propose to sell the property to a prospective buyer at a later stage, you may first ascertain actual available property by getting your property measured by a government surveyor based on the revenue records held by the VAO/land revenue department.

After getting the surveyor report, you may issue a notice to the erstwhile vendor by registered post demanding him to execute a rectification deed in respect of the actual available area and register the same in your favor.

Let the notice be returned undelivered stating that the addressee not available or died or left or anything.

Subsequent to this, you may aproach the jurisdictional registrar's office with an application for permitting  you to execute a rectification deed by yourself in the absence of the vendor.

The registrar will reject or refuse permission, then ask him to give the same in writing.

After that you file a declaration suit before civil court to declare that actual area available in the property which is different to that of the area mentioned in the title document. 

You can enclose the surveyor report, undelivered legal notice, copy of letter requesting the registrar for permitting you to execute a rectification deed, the registrar's reply.

The registrar may be impleaded as a party to the suit as defendant besides the vendor.  

Consult a local advocate on further issues. 

You cannot sell the property by reducing the area in the sale deed by making corrections yourself, it would be invalid and illegal. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
Whenever I sell I will state in the sale deed that 3600 sqft mentioned was a mistake and the actual area is 3100 sqft.

You cannot state that this was a mistake orally.

This has to be rectified properly as per the legal procedures otherwise it may not be considered as a genuine property for buying.








Before getting a patta I will get the land measured by revenue authorities and get the patta stating the actual area of 3100 sqft. I will also produce/ enclose  the letter from society stating that the area allotted is actually 3100 sqft. With these measures I think I can proceed with sale and registration and there may not a need for rectification deed. Will it be in order. 



I am afraid that will not be in order.  

The patta is a different subject to that of the title document.

Actually patta is not a title document.

After getting measured by the government surveyor, if you found the discrepancy in the actual measurement to that of the measurement mentioned in the title document then you have to follow the procedure to rectify the title document as per law. 

The procedure to be followed in this regard was suggested to you in my previous answer, but if you do not want to follow the correct legal procedure and you would like to proceed in the way as per your understanding, it is your choice. 











Also what will be the area which will be taken for stamp duty? Will it be based on 3600 sqft or 3100 sqft which will be mentioned in the sale deed which will be executed by me and the prospective buyer?

First ascertain the actual area available, rectify your title deed and then think about the stamp duty.

Actually the problem of paying stamp duty lies on the prospective buyer and it is not your responsibility. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
1. You can make a suitable recital and mention the fact in the sale deed to be executed by you and register the same while selling your property to your prospective buyer,

2. The stamp duty to be paid will be based on the actual area and not on the area wrongly mentioned in the earlier deed.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. Yes, you should make mention of the fact that the area is actually 3100 SFT and not 3600 SFT as was wrongly mentioned in the earlier deed as found and corrected based on the measurement taken by the amin/revenue authorities,

2. The stamp duty will be on the actual area being sold and not the earlier area  wrongly mentioned in the deed,

3. There is no need to register a rectification Deed to rectify the mistake made in the earlier deed.

 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. It is likely to be a major headache unless you find a rational prospective buyer. If there is a positive agreement between you and the prospective buyer then the sale deed with the actual area mentioned therein can be executed without any hassles. The stamp duty will be payable on the area mentioned in the sale deed executed in your favour, so if the sub-registrar raises an objection then you may apply to him for survey of the land so that the exact area can be ascertained. 

2. Despite getting the patta before the sale it is most likely that there will be an office objection on the shortfall in the stamp duty, in which event an application for survey may be made.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
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No need to go for any rectification deed you sell just mentioning actual area.
Lakshmi Kanth
Advocate, Hyderabad
230 Answers
2 Consultations
4.8 on 5.0

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