3. Movable Immovable
Tangible Intangible
Movable Property - Sale of Goods Act 1930
Immovable Property - Transfer of Property
Act 1882
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4. Sale of Immovable Property ( S. 54)
Mortgage of Immovable Property ( S. 58)
Lease of Immovable Property ( S. 105)
Exchange of Immovable Property ( S. 118)
Gift of Immovable Property ( S. 122)
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5. Sale is a transfer of ownership for a price paid
or promised or part-paid or part-promised as
a consideration
Essentials of Sale
Competence of Parties to sale
Sale consideration
Passing of the title
Handing over possession
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6. Mortgage is a transfer of an interest in specific
immoveable property for the purpose of securing
the payment of money advanced by way of future
debt
Essentials of a Mortgage
Specific immovable property
Consideration
Transfer of an interest
Competence of Parties
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7. Simple Mortgage - The possession of the mortgaged
property is not transferred from mortgagor to mortgagee
Mortgage by Conditional Sale - The mortgagor apparently
sells the property to the mortgagee on certain conditions
Usufructuary Mortgage- The possession of the mortgaged
property is transferred to the mortgagee. Mortgagee
receives rent, profit, interest, etc
English Mortgage - Mortgagor binds himself to repay the
borrowed money on certain date and transfers the property
Mortgage by deposit of Title Deeds - The mortgagor
delivers the title document of the property to the Mortgagee
Anomalous mortgage – Mortgage not by any of the above
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8. Lease is transfer of right to enjoy such property
made for a certain time in consideration of a price
paid or promised
Essentials of Lease
Competence of Parties
Details of property
Duration of lease
Consideration / Security Deposit / Rent
Sub – lease / Assignment
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9. Exchange is a mutual transfer of property by
two persons
Essentials of Exchange
Ownership of one property for the ownership of other
There must be two persons involved in the transaction
The ownership is transferred not in exchange of money,
unlike a transaction of sale
The principles applicable to sale transactions are also
extended to property exchange
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10. Gift is transfer of certain existing property
made voluntarily without consideration
Essentials of a Gift
Transfer to be voluntary and without consideration
Gift is to be from donor and accepted by donee
Acceptance of the gift to be made during the life time of
donor
The donor and donee must be living persons
Subject matter of gift must be certain existing movable or
immovable property
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11. Land
Flat/Office in a Co-Operative Society
Flat / Office from a Developer/ Builder
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12. 1. Check for encumbrances at the office of
Sub-Registrar of Assurance
Legal ownership document such as 7/12 extract, mutation entries is in
the name of the owner, issued by the Revenue Record Department
A title report of land for last 30 yrs without encumbrances from a
reputed lawyer & public notice
Property be transferable and heritable & not forest land
Transfer is between competent parties
Object or consideration for the transfer is lawful
Transfer has been made and completed in the manner prescribed by
law
Documents with regard to payment of taxes and other bills
If the seller is a Company search is required in the office of the
Registrar of Companies to verify whether there is any charge on the
property /if a firm thenLaw Partners of firms
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13. ¬ Drafting &Execution of the final sale deed
i Payment of Stamp Duty on the final Sale
Deed after adjudication by stamp office
i Registration in the office of Sub-Registrar of
Assurances
t Application to the Land & Survey Office for
mutation of the sale of the property
s A board resolution is required effecting the
Sale for company as party and with the
name of the authorised signatory
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14. 1. Procedure and perusal of documents before
Purchase
Seller’s share certificate issued by the society
Previous chain of the Conveyance deeds in original
Certificate of Title from an Advocate and public notice
Receipt of the sub registrar of assurances where the conveyance has
been registered
A NOC from the society for the transaction and induction of the
purchaser as member in the society
A set of transfer forms duly filled by the parties in accordance to the
bye laws of the society
Last receipt for the out goings bill paid to the Society and electricity
bills
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15. Member shall give 15 days notice of his
intention to the Secretary of the Society in
the prescribed form
Meeting of the Committee after the receipt
of the notice to check eligibility to transfer his
shares and interest u/s 29(2)(1)
In event of ineligibility/eligibility secretary of
the Society to inform the member within 3
days
16. To submit an application for transfer of his/her
shares and interest in the capital/property of the
society, in the prescribed form, along with the Share
Certificate
To submit an application for membership of the
proposed transferee in the prescribed form
To give valid reasons for the proposed transfer
To discharge all the liabilities of the society
To pay the transfer fee
To remit entrance fee payable by the proposed
transferee
17. To pay the amount of premium at a rate to be
fixed by the general body meeting not
exceeding Rs. 25,000/- whichever is less
No additional amount by way of donation,
etc. will be taken unless it is paid voluntarily
by the member
18. Settlement of dispute between society,
committee, secretary, members etc has to be
instituted in Co-operative court u/s 91 of the
Co-operative Societies Act
Party aggrieved by the decision/order of the
Co-operative may within two months from
the date of decision appeal to Co-operative
Appellate Court u/s 97 of the Act
19. Procedure and perusal of documents before
Purchase
A legal opinion certifying that the land owner, builder or developer has a
clear marketable unencumbered title to the property and public notice
The original deed of conveyance of land conveying the undivided interest
in land, common areas and facilities
A 7x12 extract
A copy of the latest tax paid receipt
A completion certificate and occupation certificate
The sanctioned building plan/license
Verify draft agreement for sale
Ensure the conveyance is executed in favour of society/company
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20. M. Rent Control Act applies to any premises
let or given on license for residence or
business purpose
Excluded premises are of govt. local
authority, banks etc.
Act will not apply if the premises let or sub let
to banks, PSU’s, MNC’s and Pvt. or Public
Ltd. companies having paid up capital of Rs. 1
cr. or more
21. License has been defined in Section 52 of the
Indian Easement Act 1882
Section 7(5) of the Maharashtra Rent Control
Act, 1999, defines a "licensee"
Licence is mere right to use and occupy the
premises for a limited duration for a paid
consideration
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22. A license is a personal right granted to a
person to do something upon immovable
property of the grantor and does not amount
to the creation of interest in the property
itself
It is purely a permissive right and is personal
to the grantee
It creates no duties and obligations upon the
persons making the grant
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23. Essentials of a License
A license is not connected with the ownership of land / property but
creates only a personal right or obligation
A license cannot be transferred or assigned
License is purely permissive right arising only by permission, express or
implied, and not by adverse exercise or in any other way
It only legalize a certain act which would otherwise be unlawful and does
not confer any interest in the property itself
Decisions of the Supreme Court in Associated Hotels of India
Ltd. vs. R.N. Kapoor summed the concept of License as
above
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24. A lease gives an exclusive interest in the
property whereas license does not
A lease can be assigned to a third person
while a license being a personal right cannot
be so assigned
A lessee can bring an action for trespass in his
own name but a licensee cannot do the same
Licensee must do so in the name of the
licensor after obtaining his permission
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25. Transferability is a feature of lease whereas a
License is not transferable
A license is revocable unlike a lease
Death of either party does not affect a lease
& legal heirs of the leaseholder can step into
shoes of the lessee
A license is terminated by death of a party
A leasehold creates a heritable right but not
the license
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26. In the case Delta Int. Ltd. Vs S.S Ganeriwala the
Supreme Court has held :-
In order to find a license or a lease the real test is to
ascertain the intention of the parties from the
document
If absence of document a person being in exclusive
possession, a lease is construed
Prima facie in absence of any rights or interest for
the premises it would be held as license
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27. U/s 33 of the Act court of small causes
Mumbai has exclusive jurisdiction over the
matters relating to the Rent Act in Mumbai
Elsewhere the court of the Civil Judge Junior
Division have the jurisdiction to entertain
suits relating to Rent Act
Appeal u/s 34 of the Act shall lie from a
decree or order made by court of small
causes Mumbai to a division bench of the
same court
28. U/s 38 (a) of the Rent Act a suit or
proceedings shall be heard and disposed
expeditiously within a period of 12 months
from the date of service of summon
U/s 38 (a) of the Rent Act an appeal against a
decree or made by the court shall be heard
and disposed of within a period of 6 months
from the date of service of notice of appeal
29. In case wherein a tenant is in breach of the
lease agreement or expiry u/s 16 of the Rent
Act a landlord may recover possession of the
premises
On expiry or on valid termination a licensor is
entitled to recover possession of premises
given on license u/s 24 of the Rent Act
provided agreement should be in writing and
shall be a conclusive evidence
30. A practice prevalent that a Leave & License
Agreement was/is entered for a period of 11 months
Bombay Rent Act (old) did not provide for giving a
residential premises on Leave & License basis prior
to 1.2.1973, however the same were executed
Lease of immovable property for a term of one year
& more is required compulsorily registered under
Section 17 (d) of the Indian Registration Act.
31. Bombay Rent Control Act of 1947, has been
repealed and replaced by the Maharashtra
Rent Control Act, 1999
Article 36 A dealing with stamping of Leave
and License was inserted in Bombay Stamp
Act w.e.f. 01.05.01
Amendment was carried out in Article 36 A
of Bombay Stamp Act wherein 11 months
was substituted to 12 months and 33 months
to 60 months w.e.f 07.05.2005
32. Maharashtra, Gujarat, Karnataka, Kerala and
Rajasthan have their own Stamp Act
Rest of the states are governed by Indian
Stamp Act 1899
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33. Bombay Stamp Act Schedule 1
Article 25 – Conveyance (approx 5%)
Article 36 Lease -(depends on term, deposit
and rent – approx 5%)
Article 36 A – Leave and License
The terms of the Leave and License Agreement
should not exceed 60 months with or without
renewal clause
If the terms exceeds 60 months with/without
renewal clause stamp duty for a lease is payable
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34. For the purpose of calculation of stamp
duty
Any consideration in the form of premium,
advance, security deposit or by whatever
name called, shall for the purpose of market
value, be treated as consideration passed on
The renewal period, if specifically mentioned,
shall be treated as part of the present lease
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35. Non-payment of stamp duty does not make
the document void or otherwise invalid
The consequences of under stamping as per
the Stamp Act are:
the document can be impounded for enforcing the
payment of full stamp value.
Penalty @2% per month but not exceeding twice
the amount of duty
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36. Section 17 of the Indian Registration Act 1908 deals
with documents that require to be compulsorily
registered
Other non testamentary instruments which
purports to operate create, declare, assign, limit or
extinguish any right, title & interest in immovable
property of value Rs. 100 or upwards
Under Section 4 of the Maharashtra Ownership
Flats Act, 1963 promoter is responsible to execute a
written agreement and to get the agreement
registered under the Registration Act 1908
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37. Section 55 (1) of the Maharashtra Rent
Control Act, 1999 - any agreement for Leave
and License or letting should be in writing
and registered under the Registration Act,
1908.
Section 55 (2) imposes the responsibility on
the landlord of getting such agreement
registered
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38. Any contravention to the provision of Section 55 of
Rent act will attract a imprisonment of 3 months or
fine of Rs.5000 or both
Effect of Non – Registration u/s 49 of Registration
it makes the document inadmissible in evidence
before any authority capable of receiving evidence
or before any public authority.
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39. To facilitate a smooth deal
Check title documents
Clear terms of appointment, exclusivity / brokerage
Check time to show premises and be on time
Advise client to consult lawyer and CA
Meet client’s requirement in a timely manner
Check stipulated stamp duty and provide proper
registration to the instrument
Be humble
Don’t forget to congratulate
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