Question:
My father had written a registered will in my favour. After the death of my father, my sister(s) are not willing to give me NOC for mutation of house in my favour. Kindly advise me how to execute the will and transfer the Mutation in my name
Answer:
In this case first of all you have to file a petition for the grant of “Probate” of the will. For this you will also have to pay stamp duty. After you get the will probated in your favour, you can get the mutation done of the said house in your favour. To get the said will probated in your favour, you have to prove the said will by producing attesting witnesses (to the will) in the court.
Q1. Can a matter relating to obtaining probate of a Will executed by person be referred to Arbitrator ?
A. No, Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. The Probate granted by a court is a judgement in "rem" and is conclusion and binding not only on the parties but also on the entire world. As such the parties cannot by mutual consent refer a probate regarding Will to Arbitration.
Q2. What does actually WILL means. How do you make it also tell me the way of registering?
A. WILL is a legal declaration of the intention of a person with respect to his property or a state, which he desires to take effect after his death. WILL is an untitled document which state after the death of a person making the deposition an it is document which can be revoked , modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses atleast. However under the provisions of law the Will is not requiring in writing no required to be signed or attesting. The WILL under law is not required to be compulsory registered. It can be executed even on a plain paper and it can be fully valued even if unregistered. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the person who have signed as witnesses on the said WILL .The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars defined for various district and you have to inquire for in this regard from the concerned office as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL.
Q3. One of my friends father died without leaving any Will. He has two married sisters and no brother. One of his sister is insisting that she should be given ½ of the share as other sister is not interested in claiming any share. What is the law in this context?
A. When a Hindu male dies intestate his property devolves around his legal heirs. Section 10 of the Hindu Succession Act, 1956 gives in detail the list of Class I heirs who are go be given first preference while dividing the property of the deceased. Rule 1 of this Section provides for a share of property for the widow of the deceased. Rule 2 of this Section provides for a share each for the surviving sons and daughters and the mother of the deceased. In your case though it is not clear whether the deceased has a surviving widow and mother but in case there are only two surviving daughters and a son each one will get a share each i.e. 1/3 of the undivided share in the property. In case one of the sisters of your friend is willing to relinquish her share in favour of the other sister, she can do so by executing a relinquishment deed in her favour. However, in case your friends father has left a residential house, which is occupied by your friend and other members of the family, then under Section 23 of the Hindu Succession Act, 1956, his sisters can not claim partition of the said House till the son (i.e. your friend) chooses to divide the respective shares in the said house.
Q4. Is it true that a person in India cannot name his daughter as a successor in his will and give her all his property? If yes, what happens if a person has only daughter and no son?
A. It is wrong that a person in India cannot give his/her property to his/her daughter in his WILL. Person can give anything to his daughter in a WILL. Even if there is no WILL and a person dies and his only successor is a daughter, the daughter automatically becomes the owner of all the properties/assets of the deceased.
Q5. Payment of deceased depositors money without nomination valuing Rs.100000 to the legal heirs on the strength of affidavit and indemnity bonds, is the payment payable to legal heirs without production of succession certificate from a foreign bank situated in New Delhi. Kindly guide rules in this regard?
A. The bank can make the payment to the legal heirs on the strength of Indemnity Bond and affidavit. There is no compulsion for obtaining the succession certificate from the court, unless there is dispute among the legal heirs. But Bank sometimes insists for obtaining succession certificate, in order to fully safeguard them. As per information available with us, there are no RBI guidelines in this regards, but you would be still advised to check the same.
Q6. I have an Indian-born client who is a USA citizen. The couple has assets in India and I have several questions regarding the disposition of these assets. They have a trust set up in the US and I want to know whether the plan of disposition outlined in their trusts would be applicable to property In India. What would be the process in India for the transfer of ownership of the assets at the death of a relative to my clients? What process in India for the transfer of ownership of my clients assets at their deaths? Is there any restriction on the removal of intangible assets from India if received as an inheritance?
A. The assets in India can be disposed off as per the trust provided the same are in conformity with Indian Laws. The assets of the relative can be transferred as per the WILL , if any, left by the relative or in what capacity the person is related to the relative to inherit the assets. At the death of your client the assets can be transferred to the legal heirs or as per WILL or as per Trust depending upon the circumstances. The intangible rights can be transferred in India in accordance with the Transfer of Property Act and that too by a registered document.
Q7. I am resident of Delhi, only son of my mother. My father expired long back. I have 3 sisters all are married , I am also married living with my mother in a flat registered in her name. I wish to get the flats registry changed in my name with my mother content. Pls. advise in details what options do we have for this. I am working and am 29 years old. My wife is a housewife and this flat was bought by her by own resources as well as mine. Pls. advise if she can gift the house to me, what tax, if any will be payable. I hold NRI status. Does just will from her will be sufficient for this.
A. Your mother can execute a WILL in your favour. However, if your sister will object or you apprehend and objections from their side then please go for a Gift Deed. The gift is required to be registered under the Indian Registration Act. You have to pay stamp duty of 8% on the value of gift, i.e. the property in question. In case your sisters will not object then go for WILL. But at the same time take affidavit from your sisters that they know about execution of WILL in your favour and shall have no objection to the WILL, as a precaution.
Q8. A family relation has died without leaving a Will. He was not married. He has I surviving brother and 2 surviving sisters. All his other brothers and sisters have died. The family is Hindu, under the law who all qualifies to inherit from the estate. Only the surviving brother and sisters or do the children of the other brothers an sisters who have died also qualify?
A. Your case fails under Class II heirs of Hindu Succession Act. All the brothers and sisters shall share the property in equal rights. The children of deceased brother and sisters shall also have the right through their parents. The children of deceased sister and brother can not claim equal share with surviving brother and sister. First the share will be divided among all the brothers and sister presuming every one is alive. Each will take one share. The share of the deceased will be further divided among legal heirs of the deceased in equal shares.
Q9. A family relative has died. He was a Hindu and being a bachelor he did not have immediate family. He has 3 living brothers and sisters and 3 of this brothers and sisters are deceased. The deceased brothers and sisters have spouses and children. He has made a will giving 1/3 share of his estate to one brother who is alive, and 1/3 share each to a nephew and niece of one his surviving sisters. For probate purposes can any of the other living brothers/sisters contest the will. Also can the spouse or children of the deceased brothers/sisters contest the will? What if any, can be legitimate grounds for contesting the will? For probate will the non- -inheritors be required to give any no objection document?.
A. On filling the probate proceedings all the legal heirs will get the notices from the court for filling objections if any. If the heir does not appear before the court it will be presumed that such person has no objection to the grant of probate. Children and spouses of the deceased brothers and sister can also file objections to the grant of probate. Will can only be challenged if it is not properly executed or it was not properly attested by the witnesses or the person in fact had not executed at all or the person executed the Will was influenced by the beneficiaries or the beneficiaries had taken interest in the execution of the Will. Giving of no objection is not necessary but the presumption will be drawn as stated above. But if no objection is given in court, it would be better.
Q10. If I make my will only in my sons name then my daughters entitled to any thing. Also if a person dies without making a will then daughters entitled to legally for the right in the property?
A You can make WILL in favour of your son by excluding the daughters. If no WILL is made, on death all the legal heirs which includes daughters, have equal share in the property along with sons.
Q11. My mother owns a flat in her name. Can she sell the flat to me or it has to be gifted or willed only?. I am 29 years old, male and have 3 sisters, all married.
A. If your sister will not create problem WILL is the cheapest mode. To further ensure, you take affidavit from your sisters that they know the execution of WILL in your favour and they have no objections. Otherwise gift or Sale Deed is the safer mode. Out of two Gift is preferable. It has to be executed on appropriate stamp paper (depending upon the value of the property) and registered with the Sub-Registrar.
Q1. What is the meaning of nominee?
A. Nominee is a person to receive the benefits under nomination and distribute the same to the legal heirs/beneficiaries under law. Nominee can also be one of the legal heirs to take the benefit. This preposition has been laid down by the Supreme Court in a case pertaining to LIC nomination.
Q2. I an a married man of 25 yrs. I have younger brother and a younger sister. I had a love marriage last year in the same caste. Now after one year of our marriage my parents are forcing me to leave the house and I don't want to do so(because it is ver spacious and have different floors.) Here is the brief history of our family: My grand father came to India in 1947 from Lahore, Pakistan and after the partition. In India he stared in new life and made a house and shop in prime locations of Delhi. In 1984 my parents got a WILL signed by my grand father that the whole property belongs to only and only my father. (My father is the only son with 4 sisters.) In 1991 my Grand Father died and again my parents took NOC from my aunts and executed the WILL. My Question is: 1. Do I have any right on the property even though my father does not want to give it to me? 2. Can they throw me out of the house force fully? 3. What should I do when they become physical on this issue? 4. They have locked the kitchen & bathrooms so that we should leave the house ourselves in frustration. What should we do in this case?
A 1. No, you have no right in the property. 2. No, they cannot throw you out of the house forcibly. Before they throw you out , they have to approach the Court of Law and get the orders. 3. If they get physical on the said issue then you should file is suit for injunction against them, asking the Court to restraining them to throw you out forcibly. 1. Break open the lock and inform the police and also file a compliant of trespassing.
Q3. Is there any limit (as per the law) tot he "Meher" (in Muslims i.e. is SHIA) that is to be paid by husband to his wife keeping in view the earning of the husband, or it has to be as per the amount that is written in nikahnama?
A. There is no limit to Mehar even under SHIA Law. The husband may settle any amount he likes by way of Meher upon his wife, though it may be beyond his means.
Q4. Does the amount of MEHER paid to the wife by her husband becomes half or nil after the birth of first child or still it has to be paid in full as per the amount written on nikahnama.
A. The amount of MEHER paid to the wife by her husband will have to be paid as per the amount written on nikahnama. It is a consideration of marriage and has no connection with the birth of first child.
Q5. Do husband possess any right do demand his wife salary in any case?
A. NO, there is no legal right to demand his wife salary. It can be done only through understanding and persuasion .
Q6. I got a problem. I got married 6 months ago. My was not able adjust in US. So she went back. Now her father asking me come back and settle there. I didn't agree for this. He tried black mailing me to come back to India or else I file a case. Now he did that saying I send her back India asking to bring money to here for business and he said he is going to report Embassy also. I don't know what to do. They filed cheating case everything. I don't know how to react from my side. Do I have to report INS or Employer. How I have to overcome this.
A. On filing of any case by your In- Laws/Wife you can contest the case through an advocate. At this stage it is difficult to assess as to what type of cases are likely to be filed by your wife. As a precaution you can inform your employer. So long as you are in US they will not be able to do much against you, but if your have family in India, they can be harassed by the girl on false charges. Please give details so that we can guide you better.
Q7. I have heard of Hindu undivided family law. What does that mean? Does it say that grandson has the right to the property(made by him) of the grandfather ? Even if he has written a will on his sons name.
A. Grand Son has no right in the property of his grand-father. Grandfather is competent to give the property to his son by writing a WILL, if the property is the self acquired property of the grand father. If the property is an ancestral property then no WILL can be made, and in such a case the grandson will only get a share out of the share of his father.
Q8. What should I do then. My parents are trying to throw me out of the house because of my brother. Is there any way my family and I be protected under certain law.
A. You should file a suit for permanent injunction against the family and seek stay of dispossession as interim relief. Contact advocate for detail and for filling the stay. You will have to show your right in the property by showing of as an ancestral property or otherwise.
Q9. It is not ancestral property. What should I do now ?
A. Even if it is not ancestral property, the person in possession of the property cannot be dispossessed by force. Your possession is legal and you are a licensee in the premises. You may file a suit for permanent injunction with an application for stay against your family with a direction from the Court that you should not be dispossessed from the possession of the premises under your occupation without due process of the law.
Q10. Ours is considered to be Joint Hindu Family . My grandfather has three sons and two daughters,. My aunts are married and their marriage expenditure has been borne by my grandfather. Thought my grandfather and all his sons reside at the same place but internally all three had partitioned. However, there has been no formal partitioned deed executed. My grandfather had executed the will in 1990 wherein he had distributed the property among his three sons. However, at the time of execution of the will my youngest uncle was not married. He got ,married in March 1994. They have got one daughter out of this marriage. Unfortunately his marriage has been unsuccessful. My youngest auntie has never stayed at my uncle's place for even seven days continuously since their marriage. She mostly remained at her parents place that is at Ulhanagar. Their relation was bitter and my uncle had to undergo lot of mental trauma. Finally , the result was such that my uncle lost his mental balance.(Unfortunately, we do not have any medical certificate or evidence to this effect. But we do have witnesses for his said condition). In such mentally imbalanced condition, my uncle is reported missing from his In-laws house from December, 31st 1995. The report of his missing is lodged at Ulhasnagar Police Station. He is still missing. Further problem is that, then my youngest auntie has filed the suit against my youngest uncle, my parents and my elder uncle and auntie under Section 498 (criminal offences for sake of dowry). The allegation made in case are for dowry and harassment. These allegations are totally false. The case is still running at the Ulhasnager Court . The case had been filed up in February, 1998. Looking at such situation, my grandfather terminated the previous will and executed the fresh will in June, 1999. In the new will, the property that was suppose to be of my youngest uncle as per the old will, my grandfather has distributed it among his grandsons(i.e. I, myself and my cousin-son of elder uncle). Now my grandfather has expired fortnight ago due to his old age and medical,etc. Now I shall be highly grateful to you if you can provide me opinion on the following points:- 1) How strong is the case of my auntie under section 498 specially when she has not stayed at her in laws place for continuous 7 days? Also, that her husband if reported missing from their i.e. his In-laws place? Further , partition already existed in the family before his marriage. 2) Now, that my grandfather executed new will in which there is no share for youngest uncle-Can she makes any claim in the property? Specifically in the context that the property has been distributed among the grandsons and she bears the daughter our to the marriage with my uncle. 3) Now that my grandfather has expired, how do we go about transferring the property as per the will grandfather? What are the legal proceedings fort he property transfer based on the will of deceased?
A. The success of the case under Section 498-A lies on the proof of facts in the Court and the strength of the case cannot be decided on the basis of the facts that you have disclosed. All these arguments that your aunt never resided in the family even for seven days have to be proved in the Court. The court shall still have to examine your aunt's allegations regarding dowry etc. The legal procedure will take its own course and matter would be decided on the basis of evidence produced by both the parties. 1. If the property was personally owned by your Grand Father, he has the right to execute the WILL in the manner he likes and your aunt cannot claim her share as a matter of right. It is not clear from the facts, how the property was distributed when your grand father cancelled the previous WILL and executed a fresh WILL. If you mean that the distribution by WILL, then the distribution has no meaning and succession of the property has to be as per WILL (I.e. the last WILL). 2. In order to give legal sanction to the WILL, you may file a petition for obtaining probate of the WILL in the Court and if the WILL is proved, the property will be distributed according to the WILL. If the WILL is disproved, then your uncle (who is missing) will have the right in the property and the minor daughter can claim the share of her father.
Q11. What are the legal duties & responsibilities of an unmarried financially independent daughter above 21 years of age towards her parents?
A. Section 20 of the Hindu Adoption & Maintenance Act, 1956 provides for maintenance of the children and aged parents. Under the provisions of the said section, Hindu is bound, during his or her life time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. However, a child may claim maintenance from his or her father or mother so long as the child is minor, i.e. a person who has not completed 18 years of age. When a Hindu male dies intestate his property devolves around his legal heirs. Section 10 of the Hindu Succession Act, 1956 gives in detail the list of Class I heirs who are go be given first preference while dividing the property of the deceased. Rule 1 of this Section provides for a share of property for the widow of the deceased. Rule 2 of this Section provides for a share each for the surviving sons and daughters and the mother of the deceased. In your case though it is not clear whether the deceased has a surviving widow and mother but in case there are only two surviving daughters and a son each one will get a share each i.e. 1/3 of the undivided share in the property. In case one of the sisters of your friend is willing to relinquish her share in favour of the other sister, she can do so by executing a relinquishment deed in her favour. However, in case your friends father has left a residential house, which is occupied by your friend and other members of the family, then under Section 23 of the Hindu Succession Act, 1956, his sisters can not claim partition of the said House till the son (i.e. your friend) chooses to divide the respective shares in the said house.
Q1. What can I do when a cheque is dishonoured for the reason of insufficient funds. What legal action I can take to get the amount cleared?
A. On the dishonour of a cheque, one can file a suit for recovery of the cheque amount along with the cost & interest under order XXXVII of Code of Civil Procedure 1908 ( which is a summary procedure and) can also file a Criminal Complaint u/s 138 of Negotiable Instrument Act for punishment to the signatory of the cheque for haring committed an offence. However, before filing the said complaint a statutory notice is liable to be given to the other party.
Q2. I have got my cheque dishonoured few months back. It was issued by a Company. What can I do now?
A. On the dishonour of cheque by the company you can file a suit for recovery of the amount under Order XXXVII of CPC. As you have stated that cheques were dishonoured few months back and you have issued no notice to the company bringing to their knowledge the dishonour of cheques and the life of the cheque is still valid which is usually six months from the date of issue. You please present the cheque again and on receipt of the information about the dishonour of the cheque you immediately issue notice within 30 days from the receipt of the information of dishonour of cheque to the company. If the company does not pay the amount within 30 days from the receipt of the notice, you can file complaint under Section 138 of the Negotiatble Instrument Act. The said complaint is to be filed within one month on the expiry of 30 days period of notice.
Q3. Our is the software distribution co. During course of our business we had supplied software worth Rs.3 lacs. But our client dishonoured the cheque. We have filed court case on him after that he paid us Rs. 1 lac and then he has run away. We do not have any idea about his where about. Court has issued proclaimed offender notice, but we do not now how to trace him. He has closed his account and bankers are not cooperating with information like his other address. Pleas advice?
A. Let the proceedings of declaration of proclaimed Offender be completed. The accused will be declared Proclaimed Offender and can be arrested at any time. At this stage, you can not do anything else. However, simultaneously you can file Suit for Recovery with the last known address of the accused.
Q4. I have a cheque dishonoured. I have informed the person in writing, but no response, what should be done to register a case of cheating, and which place it should be filed? The place of the bank, where the cheque was dishonoured or the place where the cheque was handed?
A. When you have informed the person about the dishonour of the cheque, in case the information is given within 30 days from the dishonour of the cheque, you can file a Complaint under Section 138 of Negotiable Instrument Act within one month after the expiry of notice period of 30 days. The Complaint for cheating is not maintainable legally. However, in certain cases the police have been registering cases of cheating against the accused.
Q5. I have blank cheques given to me by a partnership firm. Since they owe me some money which I had given to them as a loan. Besides the cheques and the statement of accounts. I do not have anything else. Suppose one day, I suddenly get to know that they have closed the partnership firm and dissolved it, Can I deposit the cheques now and legally raise a claim on them and how?
A. You should fill the cheques and present for encashment. The Partnership Firm as well as partners are personally liable and even after dissolution also the firm and partners are liable. Once the cheques are dishonoured you have to file a suit for recovery of the said amount under the summary procedure provided in Order 37 of Code of Civil Procedure, 1908. You should also file a complaint under Section 138 of the Negotiable Instruments Act. For this you will have to first give a notice, within 30 days of the dishonouring of the cheques. Then if payment is not made within 30 days of receipt of notice a complaint has to be filed within 30 days thereafter.
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Q1. I filed an eviction petition on the ground of bona fide requirement under the Delhi Rent Control Act. Since, I was not too well I did not appear for evidence before the Court and instead I got the examination of my Power of Attorney who gave evidence before the court. Is such an evidence proper in a case of bona fide requirement?
A. The best person to prove bona fide requirement of a landlord is the landlord itself. In case you could not appear before the court for some extreme reasons, you should have got yourself examined on commission. The court generally takes an adverse inference in case the landlord himself does not appear for leading evidence for a bona fide requirement. It would be appropriate that even now you should filed an application for your own evidence in the court and you should not rely upon the evidence given by your Power of Attorney.
Q2. What are the essential requirements in case a widow wants to file an eviction petition for getting back her tenancy let-out at a monthly rent of Rs. 1,500/-?
A. The essential things required for filing an eviction petition by a widow are that she should be the land lady of the premises and the premises should be required by her for her own residence. The said apart nothing else is required to be proved in such a case.
Q3. I have instituted a petition for bona fide requirement under the Delhi Rent Control Act. In the said petition I am claiming that I have a grown up son of 18 years of age and I require one separate room for that son. Is such a demand of requirement of a separate room justified?
A. Yes, such a demand is justified. One single room is required for the grown up child who should be free to use and live in that room in the manner he likes and should be free to devote his time to his studies without disturbance. The ground is justified and bone fide requirement can be proved on this ground.
Q4. How can a premises be sublet by a tenant?
A. Under law any subletting by a tenant has to done by a written consent given by the landlord, who has let-out the premises to the tenant. In case there is no written consent to the tenant by the landlord to sublet, any subletting done by the tenant is illegal and in such an eventuality the tenant should be liable for eviction from the premises.
Q5. Can a suit for eviction be filed against the tenant by the landlord, if the monthly rent is Rs. 2,500/- ?
A. Under the Delhi Rent Control Act, no suit for eviction of a tenant can be filed. Section 50 of the Delhi Rent Control Act, clearly bars the jurisdiction of a civil court. For evicting a tenant a petition can be filed only under the grounds mentioned in the Delhi Rent Control Act, before a Rent Controller
Q6. I have filed a case against my tenant in which a question has arisen about the difference between 'tenant at sufferance' and 'tenant by holding over'. Can you enlighten me on the same.
A. If after expiry of the period of tenancy or after his determination a tenant continues in possession without landlord's consent, the said person (tenant) holds the property as tenant at sufferance having no interest. For his ejectment no notice is necessary. But a tenant by holding over is different. To be tenant by holding over he is to continue in possession after the efflux of time with the consent express or implied of the owner. It is a creature to bilateral consensual act. It is not created by unilateral intendment.
Q7. Is it correct that whenever the rate of rent is altered, a fresh tenancy comes into being ? If a landlord accepts enhanced rent during the period of the tenancy, does the earlier tenancy comes to an end and a new tenancy begins. What does law say on this ?
A. It is not correct to say that whenever a rate of rent is altered, a fresh tenancy come into being and the old tenancy stands surrendered by implication. Landlord accepting an enhanced rent during the terms of tenancy say at 18th year when the tenancy was for 20 years, it cannot be said that the earlier lease has not been surrendered by implication. The old lease subsists and the end of the term the tenancy comes to an end by efflux of time.
Q8. I am the co-owner of a property which is on rent. The tenant is not paying the rent for the last four months, but the other co-owners of the property are not interested in filing any case for the recovery of the arrears. Can I file a case for recovery of my share of the arrears of rent ?
A. In a Co-owner's suit for recovery of proportionate rent and splitting up of tenancy, it is open to a co-owner to pray for a decree for his share of arrears of rent by filing a suit on the basis of unified and integral tenancy and without making any effort to split up the same. It cannot be said that a co-owner must sue for the entire arrears of rent and if he does not do so he cannot maintain an action.
Q9. A Notice by predecessor of interest ejectment suit by successor A notice to terminate tenancy was issued by the Estate Manager of the Bombay Port Trust (constituted under the Bombay Port Trust Act 1879) on behalf of its Board of Trustees to the tenant occupying the building owned by the Port Trust. Before the expiry of notice period there was a change in law and the successor of Board to Trustees instituted the ejectment suit. Is such a suit legal and valid in law ?
A. The right to eject tenant acquired by the erstwhile Board of Trustees acquired by giving notice to quit ensured for the benefit of the successor of the Board of Trustees. Therefore the suit for ejectment filed by the successor Board was competent. It is no doubt true that per se Section 109 of the Transfer of Property Act does not apply to the facts of the instant case. It contemplates transfer of lessor's right inter vivos. But when right, title and interest in immovable property stand transferred by operation of law, the spirit behind s. 109 per force would apply and successor in interest would be entitled to the rights of the predecessor.
Q10. I let out one floor of my house to a tenant but the lease was not registered. have been accepting rent from him. Is the lease for the period mentioned in the lease deed. Is a notice necessary for evicting my tenant ?
A. When a tenant continues in possession after expiry of the term contemplated on an unregistered deed of lease, and pays rent, he is a tenant by holding over from month to month, the unregistered lease deed being inadmissible and term of lease being not a collateral purpose. For his eviction notice under Section 106 of the Transfer of Property Act Act is mandatory.
Q11. What is the difference between a joint tenant and tenants in common ?
A. The basis distinction between joint tenants and tenants in common is that in case of joint tenants there is unity of title and possession, while in the case of tenants in common, though there is a unity of possession there no unity of title.
Q12. I have filed a suit for vacation of my rented property. The tenant has challenge the validity of the notice I served him under Section 106 of the Transfer of Property Act. What is the legal requirement for such a notice ?
A. What s. 106 requires is that a lease from month to month is terminable on the part of either the lessor or the lessee by 15 days' notice expiring with the end of a month of the tenancy. A legal termination of the monthly tenancy thus requires two conditions to be fulfilled viz. That there must be a notice terminating the tenancy giving 15 day's notice and it must be expire with the end of the tenancy month. A notice giving mere 15 days' time by itself will not answer the requirement of s. 106 but it must also indicate that the 15 days' period must expire with the end of the tenancy month.
Q13. My uncle had taken a property on rent where he is carrying on certain manufacturing of goods. The landlord has served a notice for ejectment on the basis that the property was let out for residential and not manufacturing purpose. What is required to be shown by us to prove that the tenancy was for manufacturing purpose ?
A. The tests for determining if a lease is for manufacturing purpose are (1) that it must be proved that a certain commodity was produced, (2) that the process of production must involve either labour or machinery, (3) that the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words the commodity so transformed as to lose its original character.
Q14. My father owned a premises which were on rent with a tenant. During the tenancy since my father required some money, the property was mortgage to the tenant. Now my father has repaid the amount to the tenant. Would it mean that the tenancy is automatically surrendered by the tenant ?
A. When a landlord mortgages the premises to his tenant, then no redemption of the mortgage the landlord does not ipso facto get the right to eject the tenant. When mortgage is executed the question whether the tenancy stood impliedly surrendered or not is the yardstick. If it is, the landlord gets the right to evict. There is no question of merger of the two rights, for neither of them is a higher or lesser estate.
Q15. My Landlord is disputing that my tenancy is nit a lease but a license. There is no written agreement between us. How does one differentiate whether it is a lease for a license?
A. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease, if it is does not it is a license. In determining whether the agreement creates a lease or a license the test of exclusive possession though not decisive is of significance.
Q16. A was inducted as a tenant in the premises, but the rent was always paid by the firm in which A was a partner. Is it not that the partnership firm becomes a tenant under such circumstances ?
A. A relationship of landlord and tenant is created by contract. Mere payment of rent does not necessarily establish relationship of landlord and tenant. A was found to be the tenant, the fact that a firm made payment of rent on behalf of A who was partner of that firm would not make the firm a tenant.
Q17. I am living in a rented premises with disputed ownership the pay monthly rent to "B' Is mere acceptance of rent sufficient to make `B' the landlord?
A. Landlord is the person who has the right to receive rent. Mere acceptance of rent does not make `B' the landlord unless he has the legal right to receive the rent.
Q18. What is a Standard rent? How is standard rent fixed? When can I make an application for fixation of standard rent?
A. Standard rent is the rent which the land lord is expected to receive from the tenant. Standard rent is only provided if the property is under Rent Control Legislation . Under Section 6 the Standard rent to be fixed. Under the provisions of Delhi Rent Control Act the application for the fixation of Standard Rent Act can be moved within two years of the creation of the tenancy. Delhi Rent Control Act will be applicable only if a the rent is less than Rs. 3,500/-
Q19. I have sub-let the house where I am presently living. Does it constitute a ground for eviction?
A. If the rent is less than Rs. 3,500 then subletting a one of the grounds for eviction u/s 4 ( d) Rent Control Act. If the rent is more than Rs. 3,500 then there is no formal condition agreed upon between the landlord & tenant about the subletting in that eventuality . The landlord has the right to make the lease on account of subletting. Under the termination of lease the landlord has the ground to file a suit for possession.
Q20. I am a tenant under a valid lease agreement. I have not been receiving electricity bills for the meter installed in the premises under my occupation. However, the said meter is in the name of my landlord. Suddenly, one day NDMC officials informed me that my meter is to be disconnected on account on non-payment of bills. Can I seek any relief from the Court as the meter is in the name of my landlord?
A. There is no privity between tenant and the NDMC and as such no relationship could be established between them . It is better to obtain duplicate bills from the NDMC and pay the same to avoid disconnection.
Q21. We are tenant of a house . We have not given rent for the month of March & April we are old tenant since 1994. We don't have the new agreement & our landlord want us to vacate the house. We are already fighting in the court. Can he take us out without any notice? Can we stay there for longer?
A. You have not specified in your question as to what is the monthly rent of the premises and as to whether the Agreement under which it was taken was in writing and was registered and what was the duration of the tenancy. Further you have also not mentioned about the nature of the litigation pending in the Court. In any event in case the monthly rent is below Rs. 3,500/-, the provisions of Delhi Rent Control Act, would be applicable, wherein you can be evicted only under certain specified grounds which includes not payment of rent , subletting of the premises, bonafide requirement of the landlord etc. In case the monthly rent is above Rs. 3,500/- and agreement is registered (if over one year) then the terms of the lease would prevail. The landlord under such circumstances is liable to serve you with a notice under Section 106 of the Transfer of Property Act giving 15 days time on the expiry of the tenancy month for terminating the tenancy. Thereafter, he has to file a suit for ejectment which will be tried by the Court. The landlord cannot forcibly evict you from the premises and the procedure before the Court will take few years to be decided. The strength of your case can only be told on having details of the case. You should however, pay the rent to the landlord either by sending the same by money-order or by depositing the same in court in the litigation already pending.
Q22. I am a tenant of 2 separate tenements, one shop and one float, but I have only one rent receipt for both. The entire building is now being redeveloped by a private developer who says that since I have only one rent receipt I can get only one tenement viz., a flat of 750 sq. ft. How do I verify the user (residential/non residential)?
A. If you have sufficient proof to establish that two properties, i.e. one shop and one flat, are absolutely separate from each other, then it will be taken as two different properties. This can be proved by way of evidence of various persons who have visited the shop and the flat. As you have stated that there is only one receipt, the question is whether in the receipt two rents are mentioned or a single rent is mentioned ? If two rents are mentioned in a single receipt that by itself is a proof that there are two different properties. If there is single rent mentioned in the rent receipt, then it has to be seen if two properties are anywhere indicated in the receipt, which will help you to prove your case. Further, whether the shop is separable from the residential portion, the same is also a fact to prove that there are two different properties, i.e. a shop and a flat. In your case the different users, itself proves that there are two separate properties and you can always claim compensation for two properties.
Q23. "Sufficient cause", as required by rent controller for non deposit of rent within statutory period, if shown by the tenant that he could not deposit the same as advocate did not take necessary steps and he later changed the advocate and also informed the controller his willingness to pay the arrears, if no affidavit of the previous advocate was submitted but Rojnama entries do suggest that on 2 previous occasion the advocate was not personally present and tenant himself had to submit the Vakalatnama of his advocate, can the controller rule that tenant has not shown sufficient causes?
A. While construing as to what is a 'sufficient cause', the courts normally look into various aspects of the case. The matter is solely at the discretion of the court concerned and if a good cause is shown, the courts normally condone any irregularity or default by a party. It is but obvious that in the situation mentioned by you, the previous advocate who has defaulted in depositing the arrears of rent, would not give his affidavit admitting his default. In such case you should file your own affidavit and further bring the proofs which would show that you had given the amount of arrears to the advocate for being deposited and it was on account of the default of the advocates that the needful could not be done. If the same is done the court would construe the same as a sufficient cause.
Q24. "Sufficient cause" , as required by rent controller for non deposit of rent within statutory period, if shown by the tenant that he could not deposit the same on medical ground i.e. suffering slip disc and submits also medical certificate from Government hospital and also from specialist private doctor, can the rent controller reject the certificates outright as the tenant was personally present in the court on prior occasion to file Vakalatnama of advocate where the matter was adjourned to a further date, although the tenant has pleaded that he was present in the court disregarding medical advise and with great difficulty as his advocate was not present in the court on that day?
A. The ground mentioned by you in the query for being construed as a sufficient cause, may not hold good before the court. The same might be rejected on the ground that if you are unwell, some other person could have been deputed by you to deposit the arrears or to engage an advocate to do the needful. The medical certificate may just help you to seek condonation of delay in depositing the arrears only for a few days, but not for any longer time. Further, if the tenant was present in the court and the order was passed and the tenant was aware of the same, it is immaterial that he was present there against the medical advice. If he could be present to attend the hearing, there can be no justification for not depositing the arrears on the said date.
Q25. We had given one floor of our house on rental basis for two years. Our tenant had neither given rent from past one & half years nor he is willing to vacate it. Now tenancy time of 2 years is going to over in this month. We had also made a simple agreement on affidavit witnessed by property dealer BUT NOT A LEGAL ONE BY COURT. WHAT SHOULD I PROCEED ?
A. You should issue legal notice to the tenant for the non payment of rent and also terminate the tenancy by way of notice, which should be of 15 days expiring at the end of the tenancy month. After the expiry of notice period, if the rent is more than Rs. 3,500/- p.m. you can file the suit for recovery of possession along with arrears of rent. You can also file an application for deposit of future rent in the court, If the rent is below Rs. 3,500/- p.m., you can file the petition for eviction on non payment of rent. If it is a newly constructed property and the letting is first letting then you can file the suit for possession irrespective of rate of rent. In such a case the Rent Act is not applicable.
Q26. During pendency of eviction proceedings if there are arrears of rent should the controller direct the tenant to pay such arrears if the tenant wants to contest further proceedings?
A. If the eviction petition is on the ground of non payment of rent then the Rent Controller is under duty to pass an order for deposit of rent u/s 15 (1) of Delhi Rent Control Act. If the eviction petition is on any other ground then you have to make an application under Section 15 (2) of Delhi Rent Control Act for direction to the tenant to deposit the rent. If no rent is deposited as per order of the court, the court has the right to strike off the defense of the tenant.
Q27. What do the term "sufficient cause" and bonafide payment mean?
A. The term "sufficient cause" means a good and reasonable cause which will satisfy the court about the conduct of a person being genuine and "bonafide payment" means payment tendered genuinely and in good faith generally with the actual belief that the person to whom payment is being made is the actual owner or has valid right and title tot the particular thing/property.
Q28. What are the grounds on which delay can be condoned for non deposit of rent within the statutory time?
A. As such there are no written grounds for condonation of delay for deposit of rent. U/Sec, 15(7) of Delhi Rent Control Act., "Sufficient Cause" is the only ground which further depends from to facts of the case and the Court may if convinced, condone such delay.
Q29. What should I do to make sure that if I rent my property to someone, as to make it safe. The rent would be around Rs.15,000/- per month.
A. The Delhi Rent Control Act, 1988 was primarily in acted to safeguard the interest of the tenant . However after the amendment made in the Delhi Rent Control Act, in the 1988 the provisions was made that in case the tenancy is over Rs. 3,500/-, the provisions of the Delhi Rent Control Act, 1958 would not to be applicable. In the eventuality the person is governed by the normal loss relating to the contract between the party and in a tenancy said law is defined under the Transfer of Property Act. There can be no provision or term in a lease deed which can secured you 100%. However the violating of the property if the would be appropriating better if the rent is kept above Rs. 3,500/-, so that the tenant is not entitled to the protection under Delhi Rent Control Act. If the lease is to be executed for a more than a period, the same is bound under law to be register under Indian Registration Act. and if your are executing a lease over one year you should get the register otherwise the terms of the lease cannot be led as evidence in the court . Even if you write all the request terms, the tenant can still refused to vacant at the end of the tenancy in which eventuality you will have no option but to proceed to the court for eviction of the tenant which normally take a few years, however the precaution which can be taken if that is a good amount can be kept as security and further a clause should be incorporated in lease deed specifying a huge amount as damages in the even talk the tenant willing to vacate the premises.
Q30. If premises are rented to a partnership firm and subsequently the firm is dissolved and the 2 partners continue to occupy the premises for their individual businesses, if the landlord files eviction proceedings against only 1 partner and manages to get a decree of eviction, is the other person also bound by that decree and in case he is not can he obtain a stay from the executing court or what are the other options for him?
A. If the decree is against the one partner then the partner who had been left, has the right to be heard and he may get the stay from the executing court. In your case if the landlord had made the firm also a party and there is a decree against the firm in that case the decree against the firm means decree against all the partners
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Q1. I want to institute a suit with respect to two properties. One of the properties is situated in the local limits of Delhi and another in Faridabad. Whether I can institute a suit in the courts at Delhi.
A. Yes, the suit can be instituted in the courts at Delhi. Since, one of the properties is situated within the jurisdiction of the Delhi Court, in terms of Section 17 of the Code of Civil Procedure, the courts at Delhi will be fully competent to try the suit relating to both the properties.
Q2. I am the registered owner of a house and the same stands in my name by virtue of a sale deed executed and registered in my favour. One of my cousin brother is now challenging the ownership of the said house and is stating that the house was purchased benami in my name and he is the actual owner of the same. What should I do in this regard ?
A. Your cousin brother cannot challenge your ownership and title in the said property since the same is now specifically barred under the provisions of the Benami Transaction Act. It is only under certain given circumstances that a transaction can be challenged as a benami transaction, but your case does not fall under the said category. As such any challenge made by your cousin brother would be dismissed forthwith and your title is fully secured.
Q3. I had leased out my premises under a duly executed contract / lease deed. The lease was made for a period of three years but the same was not executed on a stamp paper nor was registered. One of the terms in a lease mentioned about the payment of house-tax by the tenant during the period of lease. Can I file for recovery of the house-tax from the tenant who has refused to pay the same.
A. Since the lease executed by you is for a period of over one year, the same is bound under law to be registered. Since, the said lease deed has not been registered it cannot be looked into and as such the terms regarding payment of property tax cannot be enforce by you in law. The filing of suit by you in the court of law would be meaningless since you will not be able to achieve a desired result. In a pending suit before a court he has entered into a compromise contract with the other party.
Q4. One of my friend who is a Muslim wants to gift his property. He has been told that under Muslim Law even an oral gift can be made. Can a Muslim make an oral gift and how the same can be lawfully done ?
A. A Mohamdean can gift an immovable property by making an oral gift provided three ingredients are satisfied. These ingredients are (a) there must be a declaration of gift, (b) there must be acceptance of the gift by the donee, and (c) the possession of the property which is the subject-matter of the gift must have been delivered to the done. For the purpose of law, even if actual possession is not given, possession which the property is capable of being given would satisfy the requirement. Unless these three valid requirement s of declaration, acceptance and possession are satisfied, an oral gift under Mohamadean Las is not valid.
Q5. My friend mother owned a property along with her son which she sold when the son was a minor. On becoming a major the son challenge the sale and a court decided that the sale was improper. Subsequently the son died and his mother inherited the son's share also since, there was no other legal heir. Now the person to whom the earlier sale was made is asking the mother to give the half share of the son required by her to this person and has filed a suit for the sale. What is the likely outcome of such a suit ?
A. Mother selling property on her behalf as also on behalf of her minor son, minor son on attaining majority challenged the alienation on his behalf successfully and got a decree, but thereafter the son died, his mother inheriting son's share, the vendee cannot succeed to bring home in respect of entire share of son sold the doctrine of feeding the grant of estoppel, for after the suit filed by the son was decreed successfully challenging the sale of his share by her mother the contract originally entered or the sale deed effected did not subsist and the provisions of section 43 could not be attracted to the case. The suit of vendee thus could not succeed in entirety. As far as ½ share of land sold by the mother the vendee would be owner thereof.
Q6. My grand father during his life time gifted this properties to various persons, some of whom were living and some were yet to be born. He died immediately after making the Will. What right do the persons who were not born at that time and were born subsequently, have in the property of the grand father.
A. It is true that in case of unborn persons the whole of the remaining interest must be transferred. But where a gift is made to a class or serious of persons some of whom are in existence and other are not, the gift is valid with regard to persons who are in existence at the time of death of the testator and invalid as to rest.
Q7. I want to enter into a benami transaction. That benami property is to be purchased by me in the name of my son and my unmarried daughter . Is it legally permissible to do so?
A. Benami transactions are prohibited under the law. However, you can purchase of benami property for the benefit of your wife or unmarried daughter but not for your son.
Q8. I am an NRI. I lost my job in June 1992. I was in Gulf. There I meet with a tragic accident in May 1997, since then I am handicapped and living on my wife's income. While I was in gulf in my own younger brother forged my signature on the fake power of attorney and took a loan from Bank against my house at Delhi, and now he claims that the house belongs to him not only that. As I have small farm and the papers are on my wife's name, he has stolen it from my house, which he claims as his. He has to owe us some good amount of cash which I had sent it to him in 1998 Aug. to buy some property but he has swallowed the amount, how do I fight myself to get my money and my property?
A. With regard to the forging of your signatures by your younger brother for creating a fake Power of Attorney and taking a loan from Bank, against your house at Delhi, it is not understood as to on what basis your brother is claiming ownership of the said House. If the loan has been obtained in your name against collateral security of the House owned by you, the House can not become the ownership of your brother. You can always challenge the action of the Bank in granting loan without ascertaining the authenticity of the Power of Attorney. There must be other discrepancies also on the part of the Bank in disbursing the loan and in completing other formalities while granting the loan. These need to be checked and appropriate action can be initiated in the court of law against the same. You can further initiate criminal proceedings against your brother (by lodging an FIR) for having committed acts of forgery and cheating etc. In the event of the FIR being registered, the police can also arrest your brother, if prima-facie case of forgery is made out. Regarding the Farm House belonging to your wife, if the documents of ownership are registered, a certified copy of the same can be obtained from the office of the Registrar, even if the originals are not available. In any event an FIR must be lodged by you against your brother for stealing of documents. Your brother can not claim ownership of the said Farm House, without any proper documentation in this regard and without showing appropriate consideration having been paid for purchase of the same. Your wife can file a suit for declaration, claiming the ownership / title of the said Farm and in the said litigation you can further seek interim orders restraining your brother from in any manner dealing with the said property till the disposal of the case. With respect to the cash money sent by you to your brother, it would be very difficult for you to prove the said fact, as there would be no documentary or other proof in this regards. As such the chances of success in the court of law in that regard are very remote.
Q9. I want to know about THE DISPLACED PERSONS COMPENSATION AND REHABILITATION ACT OF 1954.
A. Here is a brief note on the said Act :Displaced Persons Compensation and Rehabilitation Act, 1954. After the partition of the Country, negotiations were carried out with the Government of Pakistan for more than six years with a view to arrive at an equitable solution of the problem of immovable evacuee property. The Government of India had been of the view that the immovable evacuee properties including agricultural land in India and Pakistan should be exchanged in lump sum on Government to Government basis, whereby the debtor country should pay to the creditor for the difference between the values of such properties in the two countries. The proposals made by the Government of India form time to time were, however, turned down by Pakistan. There was a persistent demand from displaced persons that these properties should be transferred to them on permanent ownership basis. The properties were fast deteriorating and many of them were declared unfit for habitation or had crumbled down. To prevent further deterioration and to facilitate the rehabilitation of displaced persons from West Pakistan, this said Act, namely Displaced Persons Compensation and Rehabilitation Act, 1954 was enacted which provided that the right, little and interest of evacuees in evacuee properties in India would be acquired by Government. It provided that the compensation to be paid to displaced persons will be confined to the utilization of the acquired evacuee property in India as well as any amount realized from Pakistan on account of the difference between the values of evacuee properties in the two countries. The loans so far advanced to displaced persons from West Pakistan, the properties built by the Government for their rehabilitation and provision made till May 1953 for their rehabilitation for the future under the Five Year Plan or otherwise was decided to be utilized for rehabilitation by giving grants. The said Act provided for the payment of rehabilitation grants. The said Act provided for the appointment of Chief Settlement Commissioner, Settlement Commissioners and Settlement officers who were to determine and pay the amount of compensation and rehabilitation grant payable to persons after having verified their claims. Managing officers and managing corporations were entrusted with the custody, management and disposal of the assets in the pool. The Act further provided for the setting up of the Displaced Persons Welfare Corporation for the purpose of providing educational and medical facilities to displaced persons from West Pakistan and rendering assistance to institutions engaged in such activities. The payments due to educational and medical trusts with verified claims were placed at the disposal of the said corporation along with other properties for being utilized for the above mentioned purpose.
Q10. I wish to buy a property near my location. Actually this property is built within the same complex. It splits into two portions. One portion belongs to us. And the other belongs to X. The person (X) escapes from the house due to some family and financial problems. The entire family was escaped .The house is now locked for more than 6 months, but the thing is that their relations are here and they are solving this financial problems ( I mean his elder brother (Y) and some big leaders of our caste. X also has some bank loans on behalf of this property it seems. That too nearly 2 lakhs + interest (nearly 3 lakhs). Now what Y says is he wants to sell the property. He gives security and surety on behalf of his brother. He too is a well know person and family friend for us for the past 15 years. The original value of the property is more than 8 lakhs. Now Y decided to sell the land for 5.5 lakhs. What Y says to us is that you take the property and clear some interests in bank and then keep continuing to pay bank. After all the settlements (within a short period only) and the arrival of his brother X he gives all the documents signed and all other formalities will be issued to us. Y also agreed to write all these formalities in a bond paper too. The property is in the name of X wife. So kindly please send me your opinion regarding this and also tell me what to do in this case. It will be quite helpful and grateful to us. This property will be much useful for us.
A. As explained by you the property sought to be purchased by you is owned by the wife of X. As such no other person, except the wife of X can sell the said property to you, unless the said person holds a Special Power of Attorney on behalf of that person (preferably duly registered) to sell the same. Y has no power to enter into any kind of Agreement for sale of the said property and as such any document (whether on Bond Paper or otherwise) executed by him would be meaningless and will not transfer any title to you. There would be no purpose for depositing or paying any amount by you to the Bank on behalf of X, since you will not get any benefit from the same and it will on
