Certificates - Legal, Encumbrance

Death, Heir Certificates.

When an owner of property expired intestate, his/ her ownership over the property shall devolve on his/ her legal heirs as per the succession law of his/ her religion which is dealt in this book separately.  All of his/ her legal heirs shall become the owner of the property and it also may be noted that successors (legal heirs) cannot acquire more right than what their predecessor had over the property.

While reading a deed, in the event that the executant claimed that he acquired the ownership by succession, following facts are to be ensured to determine the veracity of his claim.

o        The predecessor is died

o        The predecessor is surviving on only the executant of deed on hand.

o        The previous owner has not made any arrangement.

To confirm the above, the death of the previous can be ensured by the death certificate issued by the authority concerned. On perusing the death certificate, the name, age, father/ husband of  deceased, address last resided or the place of death are to be verified and compared with those details available in the legal heir certificate and other documents. It may be noted that reason for death is not revealed in the death certificate. If any extraneous matters like the reason for death are available in the death certificate, the proplawyer shall ring his vigil brain as it might be fabricated one.

The next is the legal heir certificate, which enlists and depicts all the legal heirs of deceased person. The certificate also reveals the names of pre

deceased heirs. If any person listed in the legal heir certificate is not included as a party of the deed on hand/ under scrutiny, the reason for exclusion of himself/ herself from the side of executants is to be checked. Sometimes, the left heir might have deceased after getting the legal heir certificate and his heirs shall become the co-parceners of the family and joint owners of the family property.

In the events of deceased and predeceased heirs, their death certificates and legal heir certificates are to be brought and scrutinized. All the direct heirs and heirs of deceased heirs are to be made as parties of the deed on executant side. If the deed is not made so, it is to be advised to get ratification deed executed by those missing heirs. Ratification deed is one whereby the absented parties give their consent to the principal deed.

In the event of any heir relinquished his or her share in the property, the release deed has to be perused and scrutinized for its genuineness. The release deed is nothing but a document whereby one or more of coparceners relinquish/es his/ her/their undivided share over the ancestral property in favour of other coparcener/s. Release deed is also made in favour of co-owners, but, non-family members.

Encumbrance certificate

Encumbrance means the charge or liabilities created on any property . the charge may be in the form of security for a loan advanced to owner of the property or his nominees which has not been discharged.  The Encumbrance certificate, popularly known as EC, for any particular property can be obtained from the jurisdictional SRO or through internet official portal of the registration department.

The EC lists out the transactions affecting the property registered in the SRO for a particular period. However, some documents are not required to be registered, but optionally registered as per Registration Act. These include lease, mortgage, equitable mortgage, sale deed for value less than Rs.100, etc. The partition deed, though compulsorily registered, was not registered and kept as a koor chit as an usage.

In addition to listing out the document, the EC reflects details about each transactions such as name of document (sale, partition, settlement, release, etc), date of execution, date of registration, name of executant, name of claimant, document No. and year, consideration, previous document and schedule of property.

Sometimes, a document in question or under scrutiny may not be reflected in EC. The reason for the non reflection may be

1.     The document registered in outside jurisdictional office and the endorsements is not made in the SRO concerned.

2.     Error crept in SRO

3.     The description of the property as mentioned in the EC application may not match with that available in the deed.

4.     Not a registerable one and hence not registered.

5.     The document under scrutiny is fabricated one and not a genuine or not a registered one.

For the reasons 1, 2 or 3, the matter may be intimated to SRO and a fresh EC is to be obtained.

After studying all the transactions and details of each deed, the property lawyer shall ensure that all the title deeds are reflected in EC and the link is perfect.

The EC shall cover a period from the date of root document or 30 years whichever is maximum.