CONVEYANCING

14th OCTOBER, 2019

1. Explain the following:

i. When is a document said to be properly attested?
 The definition of attestation is given in section 3 of the Transfer of Property Act
1882. The intention behind including this provision was to ensure that the transfer
was done with free will of the executant.
Attestation means a document that bears witness, confirms or authenticate its
existence and/or execution
The essential ingredients as per Section 3 are as below;
i. attested by two or more witnesses
ii. each of whom has seen the executant sign or affix his mark to the
instrument, or
iii. has seen some other person sign the instrument in the presence and by the
direction of the executant, or
iv. has received from the executant a personal acknowledgment of his signature
or mark, or of the signature of such other person, and
v. each of whom has signed the instrument in the presence of the executant;
vi. but it shall not be necessary that more than one of such witnesses shall have
been present at the same time, and
vii. no particular form of attestation shall be necessary

This concept of attestation stems from the English law. But the Indian Law is
different that of English:
i. According to the English law is that the attesting witness has to be physically
present at the time of the signing of the document by the executor in India
physical presence is not required.

ii. Indian law does not require the attester to actually look and see the
execution of the document. The English law both the witnesses to be present
at the time of execution and actually see the signing themselves.

Case Law

Charanjit Kaur Nagi v.Government of NCT Delhi (2007, Delhi HC)

 The court did not approve of attestation via video conferencing in this case and
asked that the husband who was in US has to attest the document in presence of a
consulate.

However, in Australia, the court there have recognized the importance of video
conferencing by allowing its use in attestation cases where it is used by indigenous
communities to overcome physical and geographical barriers.

ii. Vested Interest

 [See TOPA Jhabvala Page No. ____]

iii. Operation of transfer.

Section 8 of TOPA outlines the general rule of "Operation of Transfer".
Unless otherwise stated a transfer of property gives the transferee all of the interest that
the transferor can legally convey, including any associated legal rights which includes;

 if the property is land, the transfer includes any easements or profits, such as rent or
income, that accrue after the transfer and all things attached to earth.
 When the property is machinery attached to earth, the movable part
 If the property is a house, the transfer includes not just the building itself but also
items such as locks, keys, and windows.
 If the transfer involves a debt or actionable claim, it typically includes any associated
securities but not any interest owed before the transfer.
 if the transfer involves money or other property that generates income, the recipient
typically receives any income or interest earned after the transfer.
Overall, this provision clarifies the scope of a property transfer absent any other indications
of the parties' intentions.

Case Laws
ITC Ltd. v. Blue Coast Hotels Ltd., (2018, SC)
Transfer of interest of mortgagee not having actual possession, but having right to take
possession/right to receive usufruct of property, is limited in nature.

Gopalakrishna v. Narayanagowda, (2019, SC)

Once an owner has lost his property rights vide operation of law of adverse possession, any
transfer made thereafter would not convey any right,
 iv. Usufructuary mortgage
 [TOPA Jhabvala Page No. ______]

2. i. What is a ‘Gift’?
 [TOPA Jhabvala Page No. ______]
Case laws
Sarojini Amma v. V. P. Sreekumar, (2019, SC)
There is no provision in law that ownership in property cannot be gifted without
transfer of possession of such property

ii. How is it effected?

 [TOPA Jhabvala Page No. ______]

Case laws
Daulat Singh v. State of Rajasthan, (2021, SC)
Acceptance by or on behalf of donee must be made during lifetime of donor and
while he is still capable of giving. After acceptance donor is divested of the title or
interest being gifted, and donee becomes owner of the gifted property, estate or
interest

iii. When can it be revoked?

 [TOPA Jhabvala Page No. ______]

Case Laws
I. V. Ambunhi v. Kunhambu Karanavan (2020, SC)
When gift deed itself records delivery of possession to donee, there is a strong
evidence of transfer of possession. A presumption of acceptance would arise, in
absence of overt repudiation of the gift, by and/or on behalf of donee.

3. i. What is the time for presenting documents under Registration under Registration
Act, 1908.
 Chapter IV of the Indian Registration Act, 1908 deals with Time of Presentation. The
relevant sections are as below:

i. Section 23-Time for presenting documents

any document except a will must be presented to the proper officer for
registration within four months of its execution to be accepted.
However, there are exceptions. A copy of a decree or order may be
presented within four months of the day it was made or, if it is appealable,
within four months of the day it becomes final.
 ii. Section 23-A- Re-registration of certain documents
allows for the re-registration of a document that was registered by an
unauthorized person. If the document is presented for re-registration within
4 months of discovering the invalid registration, the Registrar will re-register
it as if it was never registered before. The document will be deemed to have
been registered from the date of its original registration, and the usual
provisions of the Act regarding document registration will apply.

iii. Section 24- Documents executed by several persons at different time

if a document is executed by several people at different times, it can be
presented for registration and re-registration within four months from each
execution.

iv. Section 25- Where delay in presentation is unavoidable

allows for the Registrar to accept a document for registration even if it is
presented after the four-month deadline if delay is due to an urgent
necessity or unavoidable accident and on payment of fine which is 10 times
the registration fee.

v. Section 26- Documents executed out of India

allows for the registration of a document executed outside of India, as long as
it is presented for registration within four months of its arrival in India.

vi. Section 27-Wills

allows for the registration or deposit of a will at any time.

Case Law
Raj Kumar Dey v. Tarapada Dey (1987, SC)
With respect to registration of arbitration award. The Period during which judicial
proceedings were pending is to be excluded in view of the principles laid down in
Section 15 of Limitation Act, 1863.

ii. Which are the documents of which registration is optional?

  Law Laws Jhabvala Pg. 144-146 (Point D)

iii. What are the effects of registration and non-registration?

 See Apr-May, 2022 Q. 11

4. Rooftop Pvt. Ltd. incorporates Skyscraper Pvt. Ltd. as a Special Purpose Company
to construct a residential Building. The project was marketed by Rooftop. The
Allotment Letters which were issued by Rooftop clearly provided that the project is
being undertaken by Skyscraper The entire consideration amount for the project
was required to be paid to Skyscraper. The project was registered under the Real
Estate Regulatory Authority and Skyscraper was declared as the Promoter of the
project. There have been delays in completion of the building and the Flat owners
are desirous of taking action against Skyscraper as well as Rooftop. Can they do so?
What advice would you give them?
 [See Apr-May, 2022 Q. 6 + Apr-May, 2022 Q. 7 (v)]

5. i. On what grounds can the Real Estate Regulation Authority revoke a

registration?
 Section 7 of the Real Estate (Regulation and Development) Act states that the
regulatory authority can revoke the registration of a real estate developer if they fail
to comply with the Act's provisions, violate the approval terms, engage in unfair
practices, or commit fraud.
The authority must give a 30-day notice to the developer before revoking the
registration and can impose further conditions if it allows the registration to remain.
Upon revocation, the developer will be barred from accessing the authority's
website, and their name will be added to a list of defaulters.
The authority can also direct the bank holding the project account to freeze it and
issue necessary directions to protect allottees' interests or the public.

ii. What Is the Role of the Authority after revocation of registration?

 Section 8 of the RERA Act outlines the obligations of the Authority in case of lapse or
revocation of registration under the Act.
The Authority may consult the appropriate Government to take appropriate action,
such as carrying out remaining development works by competent authority or
association of allottees.
 However, no direction, decision, or order of the Authority shall take effect until the
appeal period expires.
In case of revocation of registration, the association of allottees shall have the first
right of refusal for carrying out the remaining development works.

6. Answer in one bullet point only.

i. Does RERA apply to commercial projects?
 Yes,
RERA is applicable to commercial projects as well. Definition of Building in Section
2(j) includes structure which is intended for commercial purpose as well.

ii. Do all projects come under the ambit of RERA?

 No
Only projects under Section 3(2)(a) of the RERA Act if the area of land to be
developed is exceeds 500 square metres or the number of units to be constructed
exceeds 8 comes under ambit of RERA.

iii. Can a real estate developer leave the project mid-way by selling to another
developer?
 No
Section 15 provides that promoter cannot transfer or assign his majority rights and
liabilities in respect of a real estate project to a third party without obtaining prior
written consent from 2/3rd of the allottes.

7. Write short notes on any three of the following:

i. Privileged Wills
 ISA Jhabvala 42-43

ii. Gift made in contemplation of death

 ISA Jhabvala 124-127

iii. Demonstrative legacies

 ISA Jhabvala 109-111

iv. Bequest of annuities

 ISA Jhabvala 118-119

8. i. Can a builder construct an additional floor after the approval of the plans and
specifications of local authority.
  [See Apr-May, 2022 Q. 9 "Section 14. Adherence to sanctioned plans and project
specifications by the promoter"]

Add
Further as per Section 7 of MOFA after plans and specifications are approved by local
authorities and disclosed no alterations or additions without consent of all the flat
purchaser or all flat purchaser.

[Read Q. 6 (iii) October-November, 2021]

ii. What are the particulars required to be included in an Agreement under the
Maharashtra ownership flats (Regulation of the promotion of construction, sale,
management and transfer) act, 1963.
 Section 4 of MOFA states that promoter shall not accept advance payment of more
than 20% of the sale price without entering into written agreement for sale with
such flat purchaser.

Sub-section (1-A) prescribes the particulars to be stated in such agreement, which

are as follows;
i. the liability of the promoter to construct it according to the plans and specifications
approved by the local authority.
ii. the date of possession.
iii. the extent of the carpet area of the flat including the area of the balconies
separately;
iv. the price of the flat. Separate price for common areas and facilities.
v. nature of the organisation to be constituted of the persons who have taken or are to
take the flats;
vi. the nature, extent and description of limited common areas and facilities;
vii. percentage of undivided interest in the common areas and facilities.
viii. statement of the use of which the flat is intended and restriction of its use, if any;
ix. percentage of undivided interests in the limited common areas and facilities, if any,
appertaining to the flat agreed to be sold;

copies of document to be accompanies with the agreement:

i. title search report or certificate by an Attorney-at-law or Advocate
ii. Property Card or extract of Village Forms VI or VII and XII or any other relevant
revenue record showing the nature of the title of the land.
iii. approved plans and specifications of the flat.
 iii. Can promoter or building manager cut off or withhold water supply to a flat
owner? What remedy does the flat owner have?
 Section 12-A states that the managers of buildings or flats cannot cut off, withhold,
or reduce essential supplies or services without just cause.
 This includes water, electricity, lights in common areas, lifts, and sanitation
services. withholding or cut-off also includes any act or omissions attributable
to the manager due which the service is cut-off by local authority.
 If the manager violates this provision, the occupier or tenant can make an
application to the Court for the restoration of the essential supply or service
 If the Court finds that the manager acted without just and sufficient cause, it
will order the manager to restore the supply or service by a specific date.

It is also specified that the following courts shall have jurisdiction:

(a) in Greater Bombay, the Court of Small Causes, Bombay,
(b) in any area for which a Court of Small Causes is established under the
Provincial Small Cause Courts Act, 1887, such Court, and
(c) elsewhere, the Court of the Civil Judge (Senior Division),

Appeal/Review

 No appeal is allowed from any order made on such applications, but in

Greater Bombay an appeal may lie before the bench of two judges of the
Court of Small Causes. Such bench shall not include the bench who made that
order.
 Elsewhere, the District Court may review the order.

Punishment

 If the manager fails to comply, they may be fined for each day of Rs. 100
and/or imprisonment upto 3 months.
 Such offence shall be cognizable and not triable below Metropolitan
Magistrar or Judicial Magistrate First Class.

9. i. What is the validity of a Stamp Paper?

 The Maharashtra Stamp Act was amended in 1989 by which Section 52-B was added
whereby time limits on the validity of stamp was provided
 The section states that any stamps that have been purchased but not used, or for
which no allowance has been claimed before the date of the 1989 amendment, can
still be used or claimed for allowance within six months from the purchase date.
Stamps that are not used or claimed within this period will become invalid.

Further any stamps purchased after the 1989 amendment but not used or claimed
for allowance within 6 months from the purchase date will also become invalid.

This provision overrides other sections related to misused and spoiled stamps. Thus,
irrespective of whether they are spoiled or not the validity is 6 months

ii. Which are the instruments chargeable with duty?

 Land Law Jhabvala Page No. 11-12

iii. What is the Stamp duty payable on an Agreement to Sell?

 Stamp duty for Agreement to Sell is provided in Article 25 “Conveyance”. The rate
are as follows:

If movable property 3% of true market value

If immovable property
i. within the limits of any Municipal 5% of true market value
Corporation or any Cantonment
area
ii. within the limits of any Municipal 5% of true market value
Council or Nagar Panchayat or
Cantonment area within within
Mumbai Metropolitan Region
Development Authority

iii. within the limits of any 4%

Grampanchayat not mentioned
above
iv. if relating to both moveable and Same as payable for both
immoveable property
v. if relating to the order of High Court 10 % of the aggregate of the market value
in respect of the amalgamation or of the shares issued/allotted/exchanged as
reconstruction of companies consideration for amalgamation.

However, shall not exceed

i. 5% of true market value of the
immovable property located in
Maharashtra
 Or

ii. 5% of True Market value of the

shares ssued/allotted/exchanged as
consideration for amalgamation.

Whichever is higher

In case of reconstruction or demerger the

duty chargeable shall not exceed;
i. 5% of true market value of property
which is transferred by the
demerging company to the resulting
company which are located in
Maharashtra

Or

ii. 0.7% of the true market value of the

aggregate market value of the
shares issued/allotted to the
resulting company and the amount
of consideration paid for such
demerger

Whichever is higher

iv. What is the Stamp duty payable on a Gift of immoveable property to a nephew.
 As per Article 34 the approproiate stamp duty payable for gift to nephew will be 3%
of the true market value of the gift property. As nephew will be considered any lineal
descendant of the donor.

10. Draft an Agreement for transfer of tenancy.

OR

Draft a General Power of Attorney.