Newsletter January - Property lawyers in India



Close on the heels of the Demonetisation wave in India is the talk about ‘Benami Property’ and the severe crackdown that the government is expected to make on it. Benami Property is the property that is not in your name. As per an earlier benami Property Act of 1988, all property that did not match the following criteria was called benami property – Property held in the name of your spouse or child and paid through known and declared sources of income Joint property with a sibling or any other relative and paid with known and reported sources of income Property that someone holds only in a fiduciary capacity – that is, holding an asset in the name of somebody else but not for his benefit. The holding would have been made so more by trust or guardianship. However, according to the new Amendment introduced in November 2016, the government has now not only revised the definition of benami property but has also increased the punishment for such an offense. Additionally, there have been penalties stipulated for the benami transactions and legal authorities set up for the resolution of such cases. The newly revised definition of the Benami Property includes all immovable assets like land, an apartment or house; movable assets like gold, stocks, mutual fund holdings, bank deposits, etc. and in case the benami property has been sold it would include the money so earned from the sale too. (For more on ‘benami property,’ check our website www.nrilegalservices.com) All these steps are being taken to bring in greater professionalism and transparency in the Real Estate Sector. The government is also trying to reduce ownership title risks and the benami transactions in the agricultural sector. Effectively, the country is headed towards cleaner governance, and there is a wave of transparency in the country. In the given scenario, it is imperative that all assets be clearly held and be compliant to the norms set up in the country for ownership. In India, property ownership titles remain ambiguous for many. People inherit property and fail to get the due transfers done in their names. Disputes related to properties are common, and court cases related to ownership rights over property can go on for decades. Such conflicts are more frequent in cases of inheritance. It is in the interest of the owner that the property documents be updated. Post inheritance, you may or may not have to conduct financial transactions till you decide to give your share further to someone – against a payment. In any further action to be carried, it is necessary to go through legal formalities to obtain complete ownership of the property. Legal formalities may differ depending upon the nature of the property, your rights over it, number of legal heirs and other aspects. The following are the documents needed for transfer of property: Registered Will – A legal binding Will is essential. Succession Certificate – In the absence of a Will, the Succession Certificate is crucial. It is vital that the natural successors to a particular property obtain this from the court. To get the Succession Certificate, documents like the death certificate of the deceased, birth certificates of the possible inheritors and other important identity proofs are required. Purchase deed and other registration papers related to the property-if the property is dated and relevant required documents cannot be obtained; then it is important to obtain verified copies of the title deed from the registrar’s office in the deceased’s jurisdiction. Encumbrance Certificate – stating that the property is free from any monetary and legal liabilities/disputes. ‘Khata’ – that is, the proof of the entry of the person’s property in the records of the Municipal Corporation. This would include many details like the name of the owner, type of property, a record of property taxes and their payments and more. For any transfer to be conducted efficiently, it is vital that the Khata is also transferred and the revenue records are updated with the details of the new property owner. All the documents mentioned above are submitted to the concerned authorities for the transfer process to be carried out smoothly. In the case of an NRI, he or she can appoint a Power of Attorney (POA) also – a Special one, to be safe. Such steps should not, however, be taken without consulting any lawyer. Some people continue to enjoy the property without taking the necessary measure of transferring the property. It is always better to exercise caution and get it done as soon as possible. The procedures can be cumbersome but the sooner you tackle the paperwork, the better it is for you regarding the rules of the land.


Settled in the US for the past thirty years, Kulwinder Singh was the recent recipient of a substantial amount of wealth in the form of land, warehouses, and houses after his parents’ sudden death in a road accident. A few concerned friends advised him that it was in his interest, that he be practical and take stock of the property he had inherited as the only child of his parents. Once he started pursuing the matter through the relatives around his village near Phagwara in Punjab, he was totally beleaguered by the sheer volume of paperwork to be handled or the administrative/ legal details to be looked into. By the time he finished the post-death ceremonies and went back to the US to rejoin office, he was completely lost in details of his wealth. Hence his plight when he called the company office was understandable. Legal experts in the office were quick to explain to him that inheriting property does not revolve around just declaring on a simple paper or by word of mouth that the property would henceforth be in somebody’s name. There were proper procedures for property transfer, and it was important to adhere to all these norms and rules. There could be problems illegal transfers, illegal possession or even illegal sale by third parties if he didn’t act on time. Like any other overseas citizen, Kulwinder was also not aware that there are formalities like Transfer Title or Title Deeds. The transfer would not be an automatic process; in fact, it would be a process under the law where proper documentation would be needed to submit to the land revenue or registry departments. No usage of the said property was possible before that. Like all our other clients, Kulwinder too was guided mainly through e-mails or telephonic conversations. Our resourceful online updating system helped him keep track of his particular case and much to his astonishment the entire paperwork was carried out without him having to go through the hassles of frequent visits to India.

They say that when you sit at the ‘ghats’ of Rishikesh, listening to the evening ‘Aarti’; you experience unfathomed, unexplored depths within your soul. Glistening earthen lamps floating in the river Ganges, reflections of the lit up temples in the ever changing flow of water and the resonating sounds of the temple bells – all of this blends together to form that one musical note which overwhelms your soul with wonder, devotion and self discovery. A city famous for its Yoga ashrams and classes, and now also famous for its white-water river rafting and trekking, has been long called the ‘gateway to the Garhwal hills’. Part of its reputation as a home for spiritual seekers comes from being associated with the Beatles tryst with the divine here. Rishikesh is the starting point for the ‘chaar dhaam yatra’ namely, Gangotri, Yamunotri, Badrinath and Kedarnath. The city is a vegetarian city and also an alcohol-free one. Shopkeepers and vendors have also worked towards the ban of plastic bags, thus making Rishikesh one of the pure, clean cities. Amongst the places of interest in this city are the Laxman Jhoola and the Ram Jhoola, suspension bridges which were created as pedestrian bridges and still retain their magnificence as the splendid view-points for the ghats below. Other places of interest in the city are the Triveni Ghat, the Bharat Mandir, Gita Bhavan, the Neelkanth mahadev Temple, the Trayambakeshwar Temple and the Parmarth Niketan which is one of the very Ashrams in India where children can be educated about the Vedas. Also famous is the ‘Swarg Ashram’ or the ‘Heavenly Abode’ which is an agglomeration of many ashrams and temples. This area is known for its purity and sanctity. One finds this mentioned even in the ancient Indian scriptures. Scattered across this area are various ashrams and temples – this area is famous for its healthy living environment. In Rishikesh, when you are not taking a dip in the Ganges or checking into an Ashram to study yoga, meditation and Hindu philosophy, you could put yourself into adventure activities that this holy city is now getting fame for. White Water rafting is one of the better known activities – you could take on an overnight camp on the banks of the Ganges, a trek among the hills and even enrol for a course in rafting. Camping is another activity that has no age limit. The thrill of Rappelling attracts many and the cliff drop that is involved sees a lot of enthusiasts feeding their adrenalin. Rock Climbing, Cliff Jumping, Kayaking, Trekking, Bungee Jumping and nearby excursions. In recent times, Rishikesh has grown to be a unique combination of Spirituality and Adventure. Both the spheres are closely related to Nature and have a feeling of abandonment, freedom and self realisation attached to them. Much as they seem to be at different ends of the experience graph, the truth is that both bring man close to his roots – nature and his natural instincts. Rishikesh offers the amazing blend of both these along with Yoga, and has shot up to be one of the major attractions to anybody visiting India.