Scrutiny of deeds

Methods of scrutiny, Area of focus, Etc

Scrutiny of deeds

1.     Name of deed

There are various deeds available whereby an immovable property could be transferred.  One may think what is significance in verifying the name of the deed that is being scrutinized.

There are possibilities of errors in mentioning the name of deed. It may be typographical error or inadvertent one due to copy and paste or oversight error. These errors shall not change the intention of the deed.

When the deeds are prepared fraudulently by impersonation or any other deceits, there is a possibility in committing mistakes called psychological mistakes, which may include wrongly entering the name of the deed.

As an expert, the lawyer can identify the nature of error or mistake and the knowledge for the same he could gain by experience.

2.     Place of execution

It is the place where the executant has signed all the papers/ pages of the deed and acted as per the deed.   

If the address of the executant differs from the place of execution, the solicitor has to place some vigil on the scrutiny as there is a possibility for impersonated execution.

3.     Date of execution

     The date of execution by the parties is to be noted. If the deed is executed by many persons at different times all the dates are to be noted by the lawyer. (Registration Act, Section-26 permits the execution at different times)

4.     Date of registration

Normally, the executed document has to be registered within four months of time from the date of execution. If the deed is executed by several persons at different times, the deed can be presented for registration within four months from the date of each execution.

Here the solicitor has to verify whether the document has been registered within the stipulated period.

5.     Name of executant(s)

Normally, it is expected that the executant acquires the right over the property through its previous deed.  So the in order to ensure the link, the solicitor has to verify the name of claimant in the previous deed. If the name, expansion of initial, father name and the identity of the executant of present deed perfectly match with that of claimant of previous deed, one can say the title of the property passed from previous deed to present deed.

If any change in the name of executant in the deed on hand from the name of claimant in the previous deed, the lawyer has to scrutiny the deed with a view to find the reason for the same.

Generally, in the event of death of claimant of previous deed, his legal heirs would execute the present deed on hand which is being scrutinized. In such events, death certificate of the claimant of the pre-deed and his/ her legal heir certificate are to be studied and scrutinized. It is also to be checked whether all the heirs executed the present deed on hand. In rare cases, where Court Decrees might have put the executant in possession of the property, the decrees have to be scrutinised. In any cases, the reason for change has to be scrutinized and a convincing fact to be found.

6.     Age of executant(s)

Like the name, the age of the executant in the present deed is also to be compared with that of the claimant in the previous deed. In normal case, it may not affect the title of the property much. However, it may be noted that in the deeds prepared fraudulently and registered by impersonation, the age of fraudulent executant shall be mentioned. If any abnormality is found, that is wide difference with the age of original owner, that has to be investigated.

7.     Address of executant(s)

If the address of the executant differs from the place of execution, the solicitor has to place some vigil on the scrutiny as there is a possibility for impersonated execution.

If the address of the executant of present deed and that of claimant of previous deed are same but it is outstation, now also the lawyer has to place more vigil on the deed, as there is more possibility of fraudulent and impersonated execution without the knowledge of the original owner. Already we have discussed what impersonation is?

8.     Identity of executant

Like the name or address of the executant, the identity card is also play a very good role in finding the genuineness of the document. Hence, the proplawyer has to scrutinize the deed in comparison with the details found in the identity card. Readers are advised to read importance of perusal of identity card given in Various frauds found by identity card details. The lawyer has to scrutiny the identity card, expansion of initial, address and all comprehensively.

Example

On seeing two driving licenses on two deeds, got suspicion as one person can’t have two licenses and advised the client accordingly.

9.     Name of claimant/s s (Verify with successive deeds)

The name of the claimant and his father/ husband also has to be noted and to be verified with the executant of successive documents. If the convincing reason to be found on any difference from successive executant, one can proceed further. Otherwise, the process of scrutiny and thus the proposal of purchase by the client may be made a halt.

10.            Age of claimant/s (Compare with successive deeds)

For the reasons stated above under the heading “Age of executant”, the age of claimant also has to be compared with the successive deeds.

In a search, it is observed that the age of claimant is subsequently reduced after some years in a sale deed when he sold the property. On further scrutiny, it is found that the deed is a forged one and the person has represented as claimant of previous deed.

11.            Identity of claimant

For the reasons stated above under the heading “Identity of executant”, the identity of claimant also has to be compared with successive deeds.

12.            Witness

The proplawyer shall have good knowledge about witness, their role during execution of document, importance of witnesses.

Details of the witnesses, attesting and identifying, shall be legible and readable from the document. It shall contain name, father/ husband name, clear and full address of the witness such that the witness shall be easily identifiable, traceable and approachable in order to prove the execution of the document and also the possession of the by the executant in case of any challenge, claim or dispute. As such, the witness shall not be a ‘on the spot’ or ‘caught’ witness, who are usually available on the verandah/ payal of the sub registrar office.

13.                           Whether executant has absolute marketable right/ title?

Now, the proplawyer has to find whether the present owner has absolute right of ownership over the piece of property and it is marketable and clear.

For which, investigation has to be made to ensure that the property is properly devolved as per succession or transferred as per Acts on the executant and the uninterrupted continuous possession to be ensured.

It is advised to read the matter regarding title to have knowledge about Marketability and clearness of title

14.            Whether he is in exclusive possession?

Actual possession means a right to have and retain the property until it is challenged and the contrary is proved. To know about possession, separate article given in previous pages may be read.

15.            Devolution of property

Now, the proplawyer has to find how the executant got the property?

By any act of the parties viz., SD, Will, settlement, release, partition, succession, gift, assignment, decree, adverse possession or by the operation of law, the present owner might have got the ownership. To find whether the property has properly devolved on or transferred to the executant, the present deed and its previous documents are to be scrutinized.

16.            Reason for/ Circumstances behind transaction

The proplawyer shall ensure that the circumstance behind the transaction is/ was clearly spelt out in the deed. In the absence of mention or the ambiguity or non clarity about the reason for transaction, one may expect some challenges.

For example, wife of the executant may challenge the document that it was made to get executed by his husband by the influence of alcohol.

If the document is settlement deed in favour of only one heir, the reason for exclusion of other heirs must be spelt out, otherwise those other heirs may challenge that the deed was got executed due to influence.

If it is a sale and the reason is found that family loan or to meet the family expenditure, to the possible extent, the deed shall tell the loan account number, bank, etc or the detail of expenditure. Otherwise, the other members of the family shall raise problem on the ground that they had no loan at all or they were not in a position to meet any expenditure and the reason for sale as mentioned in the sale deed is invented for the purpose of the document.

As such, the lawyer shall see the sound reason for transaction, if it is not clear, he may ask his client to find or clarify with the seller the reason and no challenge over it. If  the deed was executed long back, it may not be taken so seriously as the possibility of challenges got distinguished.

17.            Consideration

Consideration is the price of property in case of sale deed. It might be paid or promised to pay or partly paid or promised to pay the remaining. The unpaid seller has lien over the property. The consideration may be made before execution of (sale) deed, or at the time of execution of deed or at the time of registration of deed in presence of registering authority.

Consideration is the essential part of a transfer of property. However, the release deed may or may not have consideration in money form. The Gift and settlement has love and affection as its consideration.

The prop-lawyer has to ensure that the consideration is rightly calculated and paid fully and there is no further demand from the executants. If the consideration is paid in presence of registering official, the lawyer has to verify whether the Sub Registrar has made endorsement to this effect.

Though the amount of consideration is to be decided by the parties, it becomes the duty of the lawyer in order to safe guard the client from the future nuisance challenges by the heirs of the executant that the lower value has been fixed by the claimant and the claimant was made to accept by force or false representation or by influence of alcohol.

18.            Exclusion of possible executants

If the property is ancestral one, the root is remote and involves many branches the devolution of title has to be perused according to succession law and quantum of share in property to each branch has to be carefully calculated, otherwise it will steer to the problem of facing the dispute by possible coparcener.

In addition to this, the facts discussed in reason for transaction and importance of witnesses is also to be kept in mind while perusing the documents.

19.            Convince on non availability of certain data

Sometimes, some miscellaneous documents like death certificate, legal heir certificate may not be produced by the client or the present owner of the property and may not be available even after making search in relevant offices.

In such a situation, solicitor may make a decision, depends on the time passed, circumstance and also strength of other available documents, whether the non availability of such certificates/ documents would touch the clearness or marketability of title or not.

20.            Endorsement by SR

While registering the deed/ document, the registering authority (Sub Registrar) usually endorse details about the following.

                   i.      Presentation, the person who presented the document for registration and the time and date of presentation.

                 ii.      Execution admission, the person who admitted the execution of document.

              iii.      Claim admission, the person who claimed the property under this deed.

              iv.      Witness (Identity), the details about the identifying witnesses.

                 v.      No. of copies registered along with the original deed.

              vi.      Scan, doc. No, book no., volume, page no. no.of pages.

The proplawyer has to calculate the stamp duty, registration fee in relation to the value of the property. Mostly, stamp duty is paid vide non judicial stamp papers, but in some cases, the duty might be paid in cash or through demand draft at the time of registration, which the sub registrar would certify the same under section 42 of Registration Act.

The purpose of calculating and verifying the stamp duty is to ensure that the document is a genuine one and not forged or fabricated one. The cheaters would create the document fraudulently with lower valued stamp papers, wherein the exact wording of the registered document is reproduced making the reader to believe that the document is original but in fact the original document might have been deposited to any bank thus created equity mortgage or lien. The fake document might also be produced without changing the names of parties but with additional facts which are not available in the original deed, thus the document would be reflected in the encumbrance details.

The number of copies also to be verified, because the duplicate copy is also similar to original and as such, the one can create charge or lien with the help of duplicate copy.

21.            Schedule of property

The property must be described in schedule of the deed as advised in the Registration Act. The details how to describe a property is already dealt in previous pages of the book.  If any inadvertent errors is noticed on comparison with recital of the deed or with any other documents, and it touch and alter the very root of document, the error has to be corrected.

The schedule is to be verified with drawings, field measurements, maps and boundaries. Any inaccuracy is to be corrected by rectification deed. The rectification deed is one which corrects the inadvertent ministerial errors found in previous document. The error includes negligent clerical error, typographical error or C&P (Copy and Paste) error.