How to get your property back?

Property disputes arise when two or more parties have a conflict of interest with regard to the same property.  As a first step to solving the conflict, the parties try and resolve the issue themselves without an advocate, but if the issue is left unresolved, the aggrieved party can always file a case against the other party and proceed with the court proceedings to get justice.

An owner is deemed to have possession of the property as long as there is no intrusion from anyone else.

Generally, illegal possession is carried out in 2 ways

1.    When goons create false documents and occupy the property illegally by use of force. This malafide practice is quite common since some practice this as their profession. Moreover, sometimes some local authorities also help these goons in such malafide practices.

2.    Such an illegal possession can also take place when a tenant does not vacate your property. The best defense used by tenants is that of adverse possession. It is advised to make a proper rent agreement before renting out your accommodation as well as acquire strong measures to avoid getting involved in such situations. These situations mostly arise when properties that are illegally occupied are left unsupervised by the caretakers, tenants with unspecified status, or properties that have been lying abandoned for years which directly makes them an easy target for such notorious people.

Adverse possession is when the owner of a property is deprived of his rights of ownership resulting from non-intervention on his part to get rid of an occupant within a statutory time period from his property. Under the Indian law, the statutory period is 12 years. After the completion of this limitation period for evicting the occupant, the rightful owner is restricted from carrying out any legal proceedings to regain the possession of his property and thus, allows the occupant to get the title to the property by adverse possession.

The main idea behind this article is to show that ownership without possession has no meaning since the owner does not get to enjoy the fruits of the property.

Illegal possession, trespassing cases are most common when it comes to NRIs. The reasons for this are– 

  • They don’t stay in these places which imply they don’t have the possession of the property at all.
  • They don’t make frequent visits to these properties, so they prefer giving the possession of their property to friends, acquaintances, relatives, agents etc.
  • Although they just have the possession of the property, with time many of the occupants, relatives, friends, agents etc. tend to feel they own the place since there is no one to check and supervise the property.
  • The owners of the properties end up getting into oral and unregistered tenancy agreements with tenants/ caretakers resulting in continuing illegal possession by them.
  • Apart from this, properties without caretakers and tenants which are not frequently visited by the owners themselves offer a better opportunity for land mafia to trespass and occupy the properties with malafide intention.

Related Post: Steps to get back your property from illegal possession

What does possession in general imply?

Possession means having the real control over an object, thing or property whether you are the owner or just have the possession of the same. However, even the possessor of the item enjoys certain legal remedies against third-party interference. This protection is only provided against any possible unlawful act of violence against the person having the possession.

The rights of persons with possession come from the fact that the owner– NRIs, in this case- haven’t looked at these properties for years and they continue enjoying rights. Moreover, as mentioned earlier too, trespassers can forge documents making it difficult for them to be evicted.

Related Post: Important considerations in a Lease and Rental Agreement

How can you avoid your property from getting illegally occupied?

The easiest way to take control and restore possession of your property under the law is going to the court and seeking justice. Civil court remedies are easily available where personal appearances required in the court can be maintained through competent and chosen agents/ lawyers. Legal remedies are available under law to regain possession of properties and even protect any third party trespassing or illegal interfering with the peaceful possession.

1. Preventive measures for owners

  • You should create true caretaker contracts and prepare well-defined tenancy contracts. In simple terms, you must always clear the status and/ or duty of the occupant having the possession of the property.
  • You must not let any person retain the possession of your house for a long period of time. You should keep changing occupants on the property to not let it get illegally dispossessed.

2. Legal measures for owners

  • Under Section- 5 of the Specific Relief Act, any individual who is dispossessed of his property can get possession by title.
  • Under Section- 6 of the Specific Relief Act, any individual dispossessed may recover his right merely by proving previous possession and subsequent illegal dispossession.
  • Section- 145 of the Criminal Procedure Code lays down procedure where dispute concerning land or water is likely to cause a breach of peace.
  • Any individual who witnesses trespassing or illegal dispossession has a right to file a written complaint with the police against the same.
  • A written complaint can be sent to the Superintendent of Police (S.P) of the area where the property is situated by way of registered post or by visiting the concerned police station.
  • In case the Superintendent of Police fails to acknowledge the complaint, a personal complaint in the concerned court can be filed through an advocate and the case can then be followed through a Special Power of Attorney when the owner cannot make his presence in the court.

What do you need a lawyer to get your property back?

A lawyer’s duty is to provide full support, competence, and efficiency in court as well as clarity in legal representation to cope up with all such cases. A great number of such dedicated and competent lawyers across the country are available to handle such matters even in case of an NRI who might not be available to be physically present.

Now file DDA complaints on Facebook and Twitter

The Delhi Development Authority’s (DDA) moto is “we think, plan and work for the future of Delhi” and therefore, the DDA has finally made its debut on social media giants with its official Facebook page and official Twitter handle on May 5, 2018 to allow citizens to make their complaints regarding any issue with the authority.

Moreover, ever since DDA’s establishment in the year 1957, it has spearheaded the operation of development in the capital. Delhi’s master plan was prepared by DDA in 1962, which shield a well-balanced development of Delhi by framing new residential additional areas which were independent and provided a reliable and healthy atmosphere.

In addition, the idea was re-evaluated in 1982 and now DDA is all set to meet the challenge of accommodating the needs of the estimated population of 128 lakhs by the conclusion of this decade with its extensive Master Plan of Delhi, 2001.

While updating, a DDA official said, “These platforms will now allow citizens to directly file their complaints on these pages, which will be monitored regularly and effectively.”

“DDA is on Twitter as ‘official_dda’ and on Facebook as ‘dda official’. The latest updates and information will be available on http://www.dda.org.in,” DDA first tweeted recently. These pages allow the citizens to simply send the queries/ feedbacks as comments, tweets, posts, etc. You just need to open the official page on either of the platforms and send in your queries just the way you post something on the social media.

Delhi natives have already bombarded the Twitter page with complaints/ concerns about poor amenities/ living conditions in their areas. Most of the tweets/ complaints have been from the natives of Dwarka.

The good thing about the page is that the DDA has been replying pro-actively to all the complaints related to allotment letters, refund of money and other related issues. Thus, showing the right intention behind the initiating such a social media page for residents to make complaints conveniently with potential effective measures.

A DDA spokesperson explained that these platforms have been brought in following the guidelines of Hardeep Singh Puri who is the Union Minister for Housing and Urban Affairs. “The idea to initiate such accounts had been in the pipeline for quite some time,” the DDA spokesperson stated, adding that now, residents can now effortlessly give their suggestions, feedback or complaints directly to the DDA.

The DDA has distributed the daily management of these accounts to a firm. “They have, therefore, be provided all the numbers of the heads of departments of DDA and they are supposed to coordinate with them. In the event where there is an immediate need to reply to a query, the official reply will be issued by the concerned department and then the firm will post that on the platform,” the official explained.

Now, here are some queries already put forward by many aggrieved residents for you to get a fair idea of what sort of queries can be posted-

Queries

Register complaints related to amenity problems
For instance,

  • My daughter while going to the school took these pictures of nilgai eating garbage in Qutab Institutional Area. The nilgai came out of Sanjay Van from the broken wall. Please fix it. Also, I request MCD & Delhi Government to clear the dump.

Register complaints related to allotment letters of flats
For instance,

  • Natives of Katputli Colony feel they have been cheated by the DDA as they were brought to transit camp 4 years ago with a dream of a house now DDA is treating them as persona non grata and asking them to vacate the rooms allotted to them as promised please help the needy.

Register complaints related to refund of money
For instance,

  • Why has my DDA- 2017 refund not been delayed? How many times will I have to visit just to get my money returned?

Gifting of Property in India

“Gift” is the transfer of property from one person to another, where the transferor gives such property to receiver, willingly, without any compensation/favor in return.

According to Section 122 of the Transfer of Property Act, 1882, you can transfer immovable property through a gift deed. Like a sale deed, a gift deed contains the details of the property, the transferor and the recipient. But unlike a sale deed, it allows one to transfer ownership without any exchange of money.

A gift deed is a legal document that describes voluntary transfer of gift from donor (owner of property) to donee (receiver of gift) without any monetary favor in return. The donor should not be insolvent and should not use this as a tool for evasion of tax and illegal gains.

Registering a gift deed with the sub-registrar is mandatory under the laws in India (Section 17 of the Registration Act, 1908 and Section 123 of the Transfer of Property Act.) If this is not done, the transfer will be invalid. Once a gift deed is registered, only then the change in the title of ownership of property is possible. Also, for the recipient to be able to further transfer the property, a registered gift deed will be required.

 

WHAT CAN BE GIFTED?

The following conditions should be fulfilled for a property to be a valid gift:

1. It should be movable or immovable property.

2. It must be transferable.

3. It should be an existing property and not a future property.

4. It should be tangible or real.

5. The transferor and the receiver should be alive at the time of the gift.

 

ESSENTIALS FOR A VALID GIFT DEED

A gift deed should be specific and must also include all the essential elements for the transfer of property of such nature. This is the reason it is advisable to get the document drafted with the help of a lawyer. The following essential things must be fulfilled for a gift deed to be successfully executed:

1. The gift deed should essentially mention the details of the property that is being gifted.

2. Details of the recipient/receiver are also an essential.

3. The deed must be signed by the donor i.e. the person gifting the property.

4. Both the donor and receiver must be present in the office of Registrar.

5. The document must be signed by at least 2 witnesses.

6. The deed needs to be stamped with an appropriate non-judicial stamp, depending upon the value of the property.

WHO CAN MAKE A GIFT DEED?

A person who owns the property can make a gift to another person. An exception to this rule is the case in which either the donor or the donee is a minor. Minors are not eligible to form contracts; therefore, they cannot transfer property as gift. If a donor is a minor, the gift deed is not valid and becomes void.

In case of donee being a minor, a natural guardian can accept a gift on his behalf. The guardian acts as a manager of the gifted property. If the gift is onerous, it cannot be enforced on donee until he/she is a minor. Once the donee is an adult, he must either accept or return the gift.

The guardians who can receive the gift on behalf of the minor or insane persons are:

1. Father

2. Father’s executor

3. Paternal grandfather

4. Paternal grandfather’s executor

 

PROCEDURE TO GIFT A PROPERTY

The procedure to gift a property can be sub-divided into three steps mentioned below:

1. Drafting the Gift Deed – A gift deed ensures a legal transfer of the gift and should be drafted with the help of a lawyer. It describes what is being transferred, who is transferring the property and to whom. It is a contract between the donor and the donee where the donor is willingly giving his property to donee and he/she is accepts the property. It is essential that a gift must be made by a person voluntarily and not under any compulsion, and without any exchange of money or any other consideration.

2. Acceptance – Acceptance of the gift deed is another important legal requirement and the donee must accept the gift during the lifetime of donor. In case the donee fails to accept the gift, it becomes invalid. The acceptance may be validated by acts of the recipient such as taking possession of the property.

3. Registration – As per Section 123 of the Transfer of Property Act, a gift of immovable property cannot pass any title to the donee unless it is registered. It is mandatory to get it attested by two witnesses during and post registration.

REGISTERING A GIFT DEED

As stated earlier, a gift deed, transferring a property from the donor to the donee is required to be registered. This is to be done at the office of the registrar with the help of a lawyer. Registration validates the transfer. The following are some common steps required for the process of registration: 

1. Valuation of gift property by an approved valuation expert.

2. Stamp duty and transfer duty are to be paid – It varies from state to state and according to the type of property. Stamp duty is also lesser for women than for men. The latest rates of stamp duty can be found on the relevant official/government website.

 

Registration Fee and Stamp Duty for Gift Deed

 

The stamp duty and the registration fee for the gift deed vary from state to state. In order to calculate the stamp duty and the registration fee, it is advisable to consult a local lawyer. The charges for some major cities are listed below:

New Delhi –
In Delhi, the stamp duty and transfer duty is payable @ 4% if the donee is a woman and @ 6% if the donee is a man. Registration fee is 1% of the total market value of the property plus Rs.100/- pasting.
Bangalore –
In Bangalore, the stamp duty and registration charges depend upon who is gifting the property:

1. If the donee is not a family member, then the stamp duty will be payable @ 5% along with surcharge and cess. The registration fee is 1% of the total market value of the property.

2. If the donee is a family member, then the registration fee will be Rs 1000 and the stamp duty:-

  • If the property is situated within within BMRDA/BBMP/ City Corporation limits, the stamp duty will be Rs 5000 along with surcharge and cess.
  • If the property is situated within city/town/municipal/council/town panchayat limits, then the stamp duty will be Rs 3000 along with surcharge and cess.
  • If the property is situated within the limits other than the places mentioned in (i) and (ii), the stamp duty will be Rs 1000 along with surcharge and cess.

Mumbai –
In Mumbai, the stamp duty and registration fee differ as per the type of the property which is gifted, such as:-

1. In case of agricultural and residential land, the registration fee is Rs 200 and the stamp duty is Rs 100, where 1 % is the LBT of the total market value of the property.

2. In case of any immovable property which is given to a family member, stamp duty is  3% of the market value of the property along with 1% registration fees. If a person other than the family member is giving the property, then in that case the stamp duty will be 5% of the market value of the property along with 1 % registration fees.
Chennai –
The registration fee for the gift deed in Chennai is 1% of the property’s market value and stamp duty for the gift deed is 7% of the market value of the property.
Kolkata –
In Kolkata, the values of the registration fee and the stamp duty differ, based upon who is gifting the property.

1. When the gift deed is made by a family member, the stamp duty is 0.5% of the market value of the property.

2. When gift deed is made by a person other than a family member:

  • If the property is situated in the Panchayet Area, then the stamp duty will be 5% of total market value of the property.
  • If the property is situated in Municipal Areas, Corporation Areas, then the stamp duty will be 6% of market value of the property.
  • If the market value exceeds 40 lakh in both urban and rural areas, then additional stamp duty of 1% will be charged.

This fee can be paid through demand draft, cheque or cash at the office of sub-registrar.

 

Documents Required for Registration of Gift Deed

 

Certain documents such as PAN card, Aadhar card, driver’s license, passport, etc. need to be submitted to the Registrar’s office in order to get a gift deed registered.

 

Duration of the Process of Gift Deed

According to Section 23 of Registration Act, 1908 a gift deed should be presented before the officer within 4 months from the date of its execution. The final registration process takes at least 1- 3 weeks of time period.

 

TAX PAYABLE ON THE GIFT

Previously, there existed the Gift Tax Act under which a donor had to pay ‘gift tax’ on the amount of gift. However, this Act has been abolished, and from Financial Year 2004-05, a new provision has been inserted in the Income Tax Act, 1961. According to this, if the gift is received in the following situations, it will not be taxable:

  • When an individual receives a gift from a relative / blood relative
  • When an individual receives a gift from any person on the occasion of that individual’s marriage
  • When an individual receives a gift from any person under a will or by way of inheritance When any person receives a gift from an individual in contemplation of death of donor or payer
  • When any person receives a gift from any local authority, Panchayat, Municipality, or, from any fund or foundation or university, educational institution or hospital, or from any registered charitable or religious trust, etc.
  • When any fund or trust or institution or educational or medical institution receives a gift from any person
  • When members of HUF receive a gift from the HUF on the occasion of distribution of capital assets on total or partial partition of an HUF
  • When a trust (created solely for the benefit of a relative of the individual), receives a gift from that individual

However, excluding the aforementioned exemptions, certain gifts received by any person from another, attracts gift tax. Mostly, if the aggregate of gifts received exceeds Rs 50,000 in a year, the gift will be taxable as income from another source.

FAQS

1. Who is a donor?

The person making the gift, or the transferor is called the donor.

2. Who is a donee?

The person receiving a gift, or the transferee is called a donee.

3. Is there any income tax liability upon a Hindu Undivided Family (HUF) on a Gift made to the HUF by a member of the HUF?

A Gift made to an HUF by a member of the HUF is exempted from the income tax liability.

4. Is registration of a gift deed mandatory?

Registering a gift deed is mandatory as per Section 17 of the Registration Act, 1908 and as per Section 123 of the Transfer of Property Act. A gift deed would be invalid if not registered.

5. Apart from marriage, is there any other occasion in which gifts will not be charged for tax?

According to the Income Tax Act, 1961, if the gift is received in the following situations (apart from marriage), it will not be taxable:

  • When an individual receives a gift from a relative / blood relative
  • When an individual receives a gift from any person under a will or by way of inheritance
  • When any person receives a gift from an individual in contemplation of death of donor or payer
  • When any person receives a gift from any local authority, Panchayat, Municipality, or, from any fund or foundation or university, educational institution or hospital, or from any registered charitable or religious trust, etc.
  • When any fund or trust or institution or educational or medical institution receives a gift from any person
  • When members of HUF receive a gift from the HUF on the occasion of distribution of capital assets on total or partial partition of an HUF
  • When a trust (created solely for the benefit of a relative of the individual), receives a gift from that individual

6. Is revocation of a gift possible?

The deed can be revoked only under following conditions:

  • If there is a mutual agreement between the donor and the donee.
  • If the property transfer was not accepted by the donee.

7. Can a gift be conditional?

Unless the condition is prohibited under any other law in force, there can be a conditional gift. However, the condition should not be based on the mere will of the donor.

8. What is the difference between gift deed and will?

There are various differences between a gift deed and will such as:

  • It is important that the recipient must accept the gift in order to validate the gift deed. However, no such acceptance is required in a will, although a person can relinquish his rights after the execution.
  • Gift deed is registered within the lifetime of the donor and if the donor dies before the acceptance of the gift deed, the gift deed becomes void. A will, however, is executed only after the death of the testator.
  • A will can always be revoked during the lifetime of the testator, but a gift deed once registered cannot be revoked.