Query Corner

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FOLLOWING ARE ANSWERS TO QUERIES ASKED BY OUR MEMBERS.

                                                      LAST WILL AND TESTAMENT

Q: MY FATHER BOUGHT A FLAT 20 YEARS AGO IN MUMBAI ON HIS NAME. HE DIED ON 20-1-2013 AND AS PER HIS WILL THE FLAT IS TO BE DIVIDED BETWEEN ME, MY BROTHER AND HIS WIFE IN EQUAL SHARES. HOWEVER, THEY HAVEN’T BEEN THERE FOR HIM THESE PAST YEARS AND THEY HAVEN’T STAYED WITH US ALSO. CAN I REGISTER THE PROPERTY IN MY NAME?

A: As per your father’s Will your brother, his wife and you have equal share in the flat. Thus, even though they haven’t stayed with you and your father or contributed in anyway, they still have rights in the flat as per the Will. If they approach the court they will get their share. You cannot register the house in your name without your brother and his wife’s consent as they now have an equal share in the flat and it would be illegal to do so without their consent.

 

Q: DO WE NEED TO PAY STAMP DUTY ON A WILL?

A: No STAMP DUTY is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.

 

Q: DOES A WILL NEED TO BE REGISTERED?

A: In India, registration of Wills IS NOT COMPULSORY even if it relates to immovable property.

The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.

The non-registration of a Will does not lead to any inference against the genuineness of a Will. Nor a Will can be accepted as genuine by courts even though it has been registered.

Q: MR. X DIED ON 5TH JAN 2014, LEAVING BEHIND A WILL STATING ALL MUTUAL FUNDS AND FIXED DEPOSITS TO BE BEQUEATHED TO MRS.X IN FULL. HOWEVER, IN THE NOMINATION FORM OF THE BANK MR. Y’S NAME HAS BEEN PROVIDED. THUS, WHOM WILL THE AMOUNT IN THE MUTUAL FUND AND FIXED DEPOSIT GO TO? THE PERSON NAMED IN THE WILL OR TO THE NOMINEE?

A: WILL SUPERSCEEDES ANY NOMINATION. Thus, in the above the funds will go to Mrs. X and not Mr.Y. If there is a nomination and no Will, then the nomination rules.

Make sure names provided in the Will match the nominee name stated to reduce confusion and disputes.

Always remember, what is stated in the Will overrides nomination.

                                            AGREEMENT OF SALE AND SALE DEED

 Q. WHAT IS THE DIFFERENCE BETWEEN AGREEMENT OF SALE AND SALE DEED? I AM PLANNING TO BUY A PROPERTY BY PAYING A PART AMOUNT INITIALLY AND REMAINING THROUGH BANK LOAN.

A. AGREEMENT OF SALE constitutes the terms and conditions of sale of a property by the seller to the buyer. THESE TERMS AND CONDITIONS INCLUDE THE AMOUNT AT WHICH IT IS TO BE SOLD AND THE FUTURE DATE OF FULL PAYMENT. Being an important document in the sale transaction, it enables the process of sale to go through without any hurdles. All the terms and conditions included in the agreement of sale must be understood thoroughly by both the parties and obeyed throughout the sale process till the time the sale deed is made. Agreement of sale is the base document on which the sale deed is drafted.

SALE DEED is a document executed at the time of finalizing the sale deal. Once the entire amount is paid and property is conveyed sale deed is executed.

                                                          PROPERTY LAW

Q: CAN A STEP SON/DAUGHTER GET RIGHTS IN THE PROPERTY OF HIS STEP MOTHER?

A: Step son/daughter is not entitled to inherit any share in his/her stepmother’s self acquired property.

 

Q: IF A MAID IS LIVING IN A HOUSE FOR OVER 20 YEARS AND SHE DIES IN THE SAME HOUSE. CAN THE MAIDS FAMILY CLAIM A STAKE IN THE HOUSE? I’VE HEARD OF SUCH CASES HAPPENING IN MUMBAI OF LATE. OWNER OF THE HOUSE DO NOT STAY IN INDIA, THE HOUSE IS LOOKED AFTER BY THE MAID ALL BY HERSELF.

A: No, the maid nor her family can claim stake in the house irrespective if the Owners of the house stay in the house or not. The Supreme Court has ruled that “NO ONE ACQUIRES TITLE TO THE PROPERTY IF HE OR SHE WAS ALLOWED TO STAY IN THE PREMISES GRATUITOUSLY. EVEN BY LONG POSSESSION OF YEARS OR DECADES SUCH PERSON WOULD NOT ACQUIRE ANY RIGHT OR INTEREST IN THE SAID PROPERTY,” the court said.

“False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate.

“Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount.

“This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent,” said Justice Bhandari during the writing the judgement of Maria Margadia Sequeria … vs Erasmo Jack De Sequeria (D) … on 21 March, 2012

For further reference read: http://articles.economictimes.indiatimes.com/2012-03-22/news/31225170_1_caretaker-real-estate-property

                                                  CO-OPERATIVE SOCIETIES ACT

Q: CAN HOUSING SOCIETIES FRAME THEIR OWN LAWS?

A: Recently, we heard of this new law in our society wherein every pet owner had to pay a certain amount in order to keep a pet. We got various queries if this was valid. Legal experts believe that housing societies can frame their own laws. However these laws have to be based on the guidelines framed under the Co-operative Societies Act.

For example, if the housing society has made a rule, stating that tenants need to pay Rs.x in order to keep a pet, then they have every right to enforce it. However, if a tenant believes that a certain rule or charge levied is wrong, then the tenant can ask the society to SPECIFY THE SECTION OF THE MODEL BYE-LAWS OF THE COOPERATIVE HOUSING SOCIETY ACT UNDER WHICH IT HAS BEEN CHARGED. If the society has come up with a rule or charge that the society cannot legally impose, then the tenant can take it further to the court.

Q: DOES A PROMOTER HAVE THE RIGHT TO SELL OR DISPOSE OF STILT PARKING SPACE TO OUTSIDERS, OTHER THAN THE FLAT OWNERS?

A: In a recent case (Nahalchand Laloochand P.Ltd’s case) the promoter set up the case in the plaint that under the agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. The defendant (Society) traversed the claim and set up the plea that the promoter has no right to sell or dispose of spaces in the stilt portion and that the undertakings given by the flat purchasers are not binding being contrary to law and based on such undertakings, the promoter has not acquired any right to sell stilt parking spaces.

The following was concluded by the Supreme Court: The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) of MOFA and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. IT IS, THUS, CLEAR THAT THE PROMOTER HAS NO RIGHT TO SELL `STILT PARKING SPACES’ AS THESE ARE NEITHER `FLAT’ NOR APPURTENANT OR ATTACHMENT TO A `FLAT’.

The following were the findings of the court in the case:

  1. The parking space enclosed or unenclosed, covered or open cannot be a `building’.
  2. It is compulsory requirement to provide for parking spaces under DCR.
  3. It is obligatory on the part of the promoter to follow the DCR. The agreement signed under MOFA between the developer and the flat purchaser must be in conformity with the model form of agreement (Form V) prescribed by the State Government.
  4. The model agreement does not contemplate the flat purchasers to separately purchase the stilt parking spaces.
  5. The rights arising from the agreement signed under the MOFA between the promoter and the flat purchasers cannot be diluted by any contract or an undertaking to the contrary. The undertakings contrary to DCR will not be binding either on the flat purchasers or the Society.
  6. The stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR when the carpet area of the flat is 350 sq. meters It is not an additional premises/area that he is authorized to sell either to flat purchaser or any outsider. It is part and parcel of the Society building and it cannot be a separate premises available for sale. As soon as the Corporation issues the occupation certificate and the Society is registered, the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the Society.
  7. The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration.
  8. The stilt parking spaces cannot be termed as `open/covered garages’ and Clause 2 of the Model Agreement–Form V provides for sale of covered/open garage in addition to the flat/shop.
  9. It is immaterial if the purchase agreement does not include stilt car parking spaces in the common area of amenities. The stilt car parking spaces is part of the common amenities and it cannot be treated to be a separate premises/garage which could be sold by the developer to any of the members of the society or an outsider.
  10. Under MOFA, the developer’s right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor it is assessable for the Corporation taxes.

                                                         

                                                            CONSTITUTIONAL LAW

 

Q: WHAT IS ARTICLE 370 OF THE INDIAN CONSTITUTION ON WHICH ABDULLAH AND NARENDRA MODI ARE DEBATING?

A: ARTICLE 370 OF THE INDIAN CONSTITUTION GIVES SPECIAL STATUS TO THE STATE OF JAMMU AND KASHMIR. THEY ARE TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS WITH RESPECT TO THE STATE OF J&K.

THEY INCLUDE POWERS OF THE PRESIDENT OF J&K TO MAKE OR CHANGE LAWS, POWERS OF JUDGES IN J&K, FUNCTIONS AND PROVISIONS OF COURTS AND PUBLIC SERVICE COMMISSIONS.

IT GIVES POWER TO THE INDIAN PARLIAMENT TO MAKE LAWS FOR THE SAID STATE LIMITED TO CERTAIN MATTERS.

Narendra Modi in his rally earlier this week in Jammu and Kashmir stated that there should be a debate on Art 370 to find out if this article has benefited the common man in Jammu and Kashmir. He further states and as quoted in The Hindu “I assure you that the BJP’s government will transform Jammu and Kashmir into the country’s super State” as although now Jammu and Kashmir is a separate state the people of that state haven’t got anything, further stating that the rights that the Chief Minister of J&K Omar Abdullah gets, his sister doesn’t get the same rights (NDTV).

Chief Minister Omar Abdullah quashed these allegations and stated that either he (Narendra Modi) is ill informed or telling a lie and that “Our state subject laws are our own. The state subject law as it exists now is not even a post-independence product. It is a pre-independence product.” (NDTV NEWS)

 

                                                                  TRAFFIC LAWS

 

Q: WHAT IS THE PUNISHMENT FOR DRUNKEN DRIVING/DRIVING UNDER THE INFLUENCE OF ANY DRUG?

A: If a driver is caught driving a vehicle with alcohol in his blood exceeding 30 mg per 100 ml or he is under the influence of a drug to such an extent that he is incapable of exercising proper control over the vehicle, the following will be the punishments. First offence: imprisonment up to 6 months or fine up to rs 2,000 or both subsequent offence: imprisonment up to 2 years or fine up to rs 3,000 or both

If you commit a fatal accident under the influence of liquor you could be booked under culpable homicide not amounting to murder which is a non-bailable offence.

 

Q: WHAT ARE CONSEQUENCES OF DRIVING UNDER THE INFLUENCE OF LIQUOR?

A: If you are caught driving under the influence of liquor you will be issued a police notice for for the appearance in the Court. There is no provision of paying the fine on the spot. Moreover, you will not be allowed to continue to driving unless you have a partner who is not under the the influence of liquor and has a valid driving licence.

or

You will be advised to hire a cab leaving the vehicle in the police station under acknowledgement till you apear in the court and pay the fine.

YOUR DRIVING LICENCE WILL ALSO BE KEPT WITH THE POLICE TILL THE DISPOSAL OF THE CASE.

 

Q: WHAT IS THE SPOT FINE FOR DRUNKEN DRIVING?

A: There is no spot fine for drunken driving. In each of the drunken driving case, police notice is issued asking the person to appear before the court. Only court is empowered to impose the fine.

 

Q: CAN MY LICENSE BE SUSPENDED BY THE TRAFFIC POLICE AUTHORITIES IF I AM CAUGHT TALKING ON MY MOBILE PHONE WHILE DRIVING IN PUNE?

A: Yes, your license can be suspended. The penalty is Rs. 100, as provided on http://punetrafficpolice.gov.in/index.php/en/traffic-rules/offence-and-fine.html

However, under the Motor Vehicles Act, 1988 and Central Motor Vehicle rules, 1989 the licensing authority can disqualify you from holding a driving licence or revoke such licence.