APARTMENT FLAT OR VILLA CANCELLATION DEDUCTIONS AND PROCEDURES

                                                                  Image Source: Google Images

As per the general practice under the law, if any customer would like to cancel a flat that is liable to deduct 5 to 10% amount on total consideration value or booking amount as per the terms of the contract or agreement. Moreover, exemption of deduction amount towards cancellation flat charges is left to the builder discretionary power in the presence of contract.

However, in the absence of any clause in this regard, you need to verify the application form's terms and conditions which might have been printed in back side. Per contra, if the application's terms and conditions stating favorable to the builder and were totally arbitrary and constituted unfair trade practices and in the absence of agreement executed between the parties, no certainty in this transactions. In case if they didn't mention any clause in this deal that you can issue a legal notice to the builder by saying cancellation of flat and claim refund total amount. Later, the builder may deduct some amount as general practice. Later, you can accept the deduction amount under protest and claim the deducted amount before the Consumer Forum under deficiency in service and unfair trade practice as your legal right had not documented. As per the legal requirement, any money transaction towards service provide under real estate shall be follow minimum legal formalities example: Agreement, Receipts, undertaking letter, Flat booking details etc.,

Moreover, in the event of the builder has not issued receipt for payment made by the customer

that would attract cheating offence committed by the builder under Section 420 of IPC as paid amount was not documented. You can lodge police complaint with respect to the same for future correspondence. And you can highlight this point before the Consumer Forum under Unfair Trade Practice.

For more clarification contact legalravibt@gmail.com

How do I detect "A" Khatha and "B" Khatha by verifying Khatha Documents in Bangalore?

There is no concept of "B" Khatha in the eyes of law. However, some properties will be registered in Form "B" Property Extract Register, when a properties are not eligible to issue Khatha Extract and Certificate (A Khatha as you aware)from the BBMP/BDA by virtue of violation of bye laws and rules and regulations Example: Deviation of Approved Plan, No Conversion of Land etc.,

A Khatha include : Khatha Extract and Certificate ( For legal buildings and sites)

B Khatha include: Form “B” Property Extract(For Illegal buildings and sites)

BBMP LIMITS

Khatha Extract and Khatha Certificate would shows the status of the property is coming under the A Khatha with the below descriptions viz,. You can verify the documents by following methods viz.,

Khatha Certificate

First Heading: BBMP (Kannada Language)

Second Heading: Certificate/Pramanapathra (in Kannada) issued by BBMP AND it shows the Khatha holder name and property number with measurement

Certificate Picture For Your Perusal

Khatha Extract

First Heading: BBMP (Kannada Language)

Second: Revenue Department (Kannada Language)

Third: House and Vacant Site Register Book (Kannada)

Moreover, it shows owner name, property number, khatha number, measurement, Betterment Fee instructions and conditions etc., All the contents have been printed with Kannada words..

Katha Extract: Blurred Image just for your perusal.

'B' Extract Register would shows the status of the property is coming under the 'B' Khatha with below descriptions viz.,

First Heading: BBMP (English Language)

Second Heading: Form "B" Property Extract Register

Moreover, it shows owner name, property number, khatha number and measurement. All the contents have been printed in English language.

B- Khatha Extract - Image not clear (For Privacy Reason)

You can visit the local authority to verify as to whether issued certificate is A Khatha or B Extract if any doubt?

VILLAGE PANCHYATH LIMITS (ANEKAL,BMRDA,DEVANAHALLI LIMITS ETC)

Form No. 9 and Form No.11 will be issued for Genuine and Legally Valid properties

Form No. 11B could be seen in B Khatha( Irregular Properties) which will be issued for illegal properties.

Property owner name, measurement, Schedule, Documents/Title sources, conversion details, owners photo, property photo and property ID number could be seen in form no. 9 and 11 and 11B

For more clarification, send mail request legalravibt@gmail.com

Hindu Women cannot act as Karta of the HUF after the death of her husband but can be considered as Manager.

Image Sources: www.india.com

CIVIL APPEAL NOS.3162-3163 OF 2010SHREYA VIDYARTHI VS ASHOK VIDYARTHI & ORS Decided on Dec, 2015

The court said “While there can be no doubt that a Hindu Widow is not a coparcener in the HUF of her husband and, therefore, cannot act as Karta of the HUF after the death of her husband the two expressions i.e. Karta and Manager may be understood to be not synonymous and the expression “Manager” may be understood as denoting a role distinct from that of the Karta from that of the Karta.  Hypothetically, we may take the case of HUF where the male adult coparcener has died and there is no male coparcener surviving or as in the facts of the present case, where the sole male coparcener (plaintiff – Ashok Vidyarthi) is a minor. In such a situation obviously the HUF does not come to an end. The mother of the male coparcener can act as the legal guardian of the minor and also look after his role as the Karta in her capacity as his (minor’s) legal guardian.”

Handwriting and Contents doesn’t matter as to whether cheque written by Complainant or not

When a person transferred a blank cheque to the creditor for any purpose that amounts to cheque was been issued under the security within the purview and presumption of Section 139 of Negotiable Instrument Act. As per the section 20 of NI act when blank cheque is given by drawer he gives authority to payee to complete the instrument. It is unequivocally established that payee can fill or write over the cheque but it shall be original transaction amount. It has a exception under the Section 87 if the payee failed to prove under the section 20 in respect of authority that amounts of material alteration.  In this regard, the accused can’t take any defence under the grounds that contents of the cheque not written by me and the same filled by the complainant. Therefore, the handwriting and contents in the cheque is immaterial. However, in order to avoid misuse the cheque from the point of original fact that income proof the complainant is mandatory as discussed in earlier post in this blog.

Section 20. Inchoate stamped instruments- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."

Section 87. Effect of material alteration.—Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.

Study Case: Smt. Sunita Dubey vs Hukum Singh Ahirwar

The Builder Has No Power To Sell Car Parking Area

Image Soureces:pbelcity.in

The Hon'ble Apex Court clearly made it clear that the builder has no power to sell any car parking by receiving consideration amount from the customer because of the said area would be treated as common area.

 It was argued in Supreme Court Civil Appeal No. 2544 OF 2010 Nahalchand Laloochand Pvt. Ltd. Versus Panchali Co-operative Housing Society Ltd. that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoter's contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat' by itself within the meaning of Section 2(a-1) of MOFA and in the alternative that it is not part of `common areas'. But we have already held that `stilt parking space' is not covered by the term `garage' much less a `flat' and that it is part of `common areas'. it must be held that stilt parking space/s being part of `common areas' of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat' under Section 2(a-1) nor `garage' within the meaning of that provision is not sellable at all.

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'.

Easement Right is Permanent for Next Generation's Legal Heirs

Image Sources: www.wherewilltheypark.com

(2012) 8 MLJ 379 J. Chandraekaran and Ors Vs V.D. Kesavan

(A)        Common usage – Right to use common passage – Whether plaintiff was entitled to common usage of the suit land – Held, document has to be read as a whole and it’s spirit should be taken note of – In recitals of partition deed, defendant and plaintiff’s father admitted that suit land should be available for both of them – Plaintiff derived his title only under his father even though not by inheritance, at least by compromise as envisaged under compromised deed – Plaintiff had right of common passage in schedule lane.

(B)         Indian Easements Act (5 of 1882), Section 15 – Prescription – Acquiescence – Electric metres of defendants fixed on wall of plaintiff – Whether defendants have right to continue such metres fixed on plaintiff’s wall as latter acquiescence to it – Held, once as per partition deed, specific right is found conferred on plaitniff’s father, cannot exclude his heir from using suit lance by just pleading prescription – Simply because plaintiff tolerated defendants, does not mean that ad nauseam and ad infinitum he should tolerate the same – Plea of acquiescence or prescription pleaded by defendants is untenable – Second appeal and cross-appeal dismissed.

What Law/Act says?

Section 13(e) and (f) provide as follows:

Where a partition is made of the joint property of several persons (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Section 15 of the Easement Act inter alia provides:

where a right of way or any other easement has been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption and for twenty years.... Explanation II. Nothing is an interruption within the meaning of this section unless there is an actual cessation of the enjoyment by reason of an obstruction, by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Conclusion:

An easement cannot be extinguished by virtue of creation of any agreement as to no alternative remedy available to enjoy the same and it it was common usage for all. When the right has been accrued from the ancestral or previous owner by creating an agreement that benefit goes to all apparent legal heir eternally or perpetually. Hence, any one of the next legal heirs or owners or possessor cannot impose any restriction over next generation’s beneficial enjoyment.

DIFFERENCE BETWEEN LEASE AND LICENSE WITH EXAMPLES

Image Sources:www.homeinclarkssummit.com

In Associated Hotels of India Ltd. v. R.N. Kapoor (AIR 1959 SC 1262) this Court referred to the difference between a lease and licence.:

"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor......"

After referring to the definition of licence in Section 52 of the Easement Act, this court held:

"Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington [1952] 1 All E.R. 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155 :

"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."

"...The following propositions may, therefore, be taken as well-established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties - whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease..."

In C.M. Beena vs. P.N. Ramachandra Rao - 2004 (3) SCC 595, this Court explained a Licence thus :

"Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful."

20. Licences can be of different kinds. Some licences with reference to use of immovable property may be very wide, virtually bordering upon leases. Some licences can be very very narrow, giving a mere right enabling a person to visit a premises - say a museum or a lecture hall or an exhibition. In between are the licences of different hues and degrees. All licences can not be treated on the same footing. We may refer to some illustrations to highlight the difference.

Illustration (A):

An owner of a property enters into a lease thereof, but to avoid the rigours of Rent Control legislation, calls it as a licence agreement. Though such a lease is captioned as a `licence agreement', the terms thereof show that it is in essence, a lease. Such a licence agreement which puts the licensee in exclusive possession of the premises, untrammeled by any control, and free from any directions from the licensor (instead of conferring only a bare personal privilege to use the premises) will be a lease, even if described as licence. For example, if the exclusive possession of an apartment or a flat or a shop is delivered by the owner for a monthly consideration without retaining any manner of control, it will be a lease irrespective of whether the arrangement is called by the owner as a `lease', or `licence'. As far as the person who is let into exclusive possession, the quality and nature of his rights in respect of the premises will be that of a lease or a tenant and not that of a licensee. Obviously such a `licensee' cannot be `evicted' or `dispossessed' or prevented from using the premises without initiating legal action in accordance with law.

Illustration (B):

The owner of a land constructs a shopping mall with hundred shops. The owner of the mall earmarks different shops for different purposes, that is sale of different types of goods/merchandise, that is shops for exclusive clothing for men, shops for exclusive clothing for women, shops for hosieries, shops for watches, shops for cameras, shops for shoes, shops for cosmetics and perfumes, shops for watches, shops for sports goods, shops for electronic goods, shops for books, shops for snacks and drinks etc. The mall owner grants licences in regard to individual shops to licensees to carry on the identified or earmarked  business. The licensor controls the hours of business, regulates the maintenance, manner of display, cleanliness in the shops. The ingress and egress to the shop licensed to the licensee is through the corridors in the mall leading from three or four common access points/entrances which are under the control of the licensor. The licensee is however entitled to stock the shop with brands of his choice though he does not have the right to change the earmarked purpose, entertain any clientale or customers of his choice and fix the prices/terms for his goods. He can also lock the shop at the end of the business hours and open it whenever he wants. No one else can trade in that shop. In such a case, in spite of the restrictions, controls and directions of the licensor, and in spite of the grant being described as licence, the transaction will be a lease or tenancy and the licensee cannot be dispossessed or evicted except by recourse of law. Illustration (C):

In a shopping complex or in a mall the owner gives a licence to a person to use a counter to sell his goods in consideration of a fee. The access is controlled by the licensor and there is no exclusive use of any specific space by the licensee. At the end of the day, the licensee can close the counter. The space around the counter is visited and used by customers to the mall and not exclusively by the customers of the licensee. In such a case, if the licence is terminated, the licensor can effectively prevent the licensee from entering upon his premises and the licensee will have no right to use the counter except to remove his belongings. In such a licence it may not be necessary for the licensor to sue the licensee for `possession' or `eviction'. Illustration (D):

A much narrower version of a licence is where an exhibitor of cinematograph films, or a theatre owner permits a `customer' or `guest' to visit an entertainment hall to view and enjoy a movie or a show for the price of a ticket. The licensee is permitted to occupy a seat in the theatre exclusively for the period of the show. Or a cloakroom with toilet facilities in a public building permits a visitor to use the toilet/closet facilities on payment of a fee. The licensee is permitted to use the toilet/closet exclusively to relieve himself. In such cases, the licence is for a specific purpose and for a specific period. The licensee has no other right to enter the premises, nor the right to continue to occupy the seat in the theatre or use the toilet/closet continuously. Such a licensee can be forcibly removed by the licensor if the licensee overstays or continues to occupy the seat beyond the show, or refuses to leave the cloakroom. It is not necessary for the licensor to sue the licensee. Illustration (E):

(For more study: Bharat Petroleum Corp.Ltd vs Chembur Service Station on 2 March, 2011 comprising Judges Mr. R. Ravindran and H.L.Gokale and link: http://indiankanoon.org/doc/761336/)