Capital gains will accrue if reflected in sale deed

Dear Madam,

I sold my flat which was in my name, in September 2004, and the entire amount was invested in a villa in February 2005. The land for the villa was registered in my name at the registrar’s office. The same developers built the villa with a ‘Joint Development Agreement’ with my son’s name in it as the second one and my name first in the Jt. Dev Agreement. This we did because we wanted a bank loan, and my age did not permit a loan. If I wanted to sell the villa:

1) Will there be any capital gain?

2) When the sale agreement is registered, does it require my son’s signature?
3) Can land and villa have one  agreement?

4) When I pay back loan amount to the bank in full does it require my son’s signature?

G Rau

Dear Madam,

I have purchased a flat by way of a loan and the loan is not yet closed. Is it possible to gift the flat to my father through a gift deed and can I  pay the loan amount. Please clarify.

Wahida

Dear Rau, Wahida,

Capital gains will always accrue if you sell at a profit and if it is reflected in the sale deed.
You can include your son as  a consenting witness.

You can sell the land and villa in one agreement as it is already constructed.

Any repayment to the bank can be supported by a letter from the bank showing such repayment and the loan account number and your son’s signature is not mandatory.

However the formalities of the bank should be verified.

Dear Madam,

My parents lived in a house in Mysore. Till her death my mother kept referring to the house as hers. In August 2005 she died without leaving a will. My father now claims the house is his and has got the khatha changed to his name without obtaining any permission from me or my two sisters. I have requested him for a copy of all papers pertaining to the property but he has refused to send it to me.I find it  hard to resolve this as I am an NRI and not living in India. Is there any legal way I can obtain the copies of papers of the property to see if the house actually belonged to my mother? What are my rights and my sisters rights?

Ashoka

Dear Ashoka,

Since the genesis of the ownership is not clear, you can apply for an encumbrance certificate to see if your mother or father had purchased the property. If your mother had inherited the same, it will not be reflected in the EC. You could try to talk to your mother’s surviving relatives and then trace the parent document, if possible.
Alternatively you have to sue for partition of your share, which will force your father to furnish all the documents under which he is claiming the title.

Dear Madam,

I have booked a flat near Bellandur; it’s a project called Genesis and is a ground + 3 floor project. They say as per floor/area ratio, it does not fall under the BDA’s jurisdiction, so BDA approval is not required. Also, the CMC is authorised to approve the project. They do have CMC approval. Is it safe to go ahead?

Keyur

Dear Keyur,

If the CMC had approved the project, it would have been done before the CMCs were merged with the BBMP. The CMCs were authorised to permit building with ground plus three upper floors.

However the area of the plot which has been given approval should be within permissible levels.

You should contact a lawyer with the documents.

Dear Madam,

My grandfather passed away last year without making any will, he had two sons and two daughters (my father and one of my aunts have expired). He had one commercial property in his name, not on an ownership basis, but on pagdi system for the last 60 years.

This property is under redevelopment currently and the same will turn into ownership property.  My mother (because my father has expired) and my uncle are the legal heirs to the said property.

Kindly advise what documents are required to be submitted to claim that the only legal heirs to this property are my mother and my uncle; after their death we want to mention my name, my sibling’s name and names of my cousins as nominees to this property. Also, does it need to be registered? Also what are the other things required to be executed so that nobody else claims right to this property?

Jasmine

Dear Jasmine,

It is not clear where the property is situated. A family tree is sufficient to claim title from your grandfather, in Karnataka. Sometimes a succession certificate may be required. A simple will made by the owners to whom the property is to be allotted now, will be enough to claim title later. However you are advised to show the papers to a lawyer to establish all the claims that could arise from the deceased children’s heirs and the proper legal position in a case like yours.

Dear Madam,

I purchased a flat in Sobha IRIS and had made an advance payment of the entire amount. The project got delayed by about 18 months. While some owners have been paid compensation according to the agreement many of us who had asked for minor modifications have not been paid compensation on the grounds that the agreement has a clause denying compensation in such cases. The delay is not due to the modifications we have asked for. Also the builder is demanding payment for BWSSB and BESCOM connections, but is refusing to share details of payments made. Can I approach the consumer court for redress?

C N Kumar

Dear Kumar,

Subject to scrutiny of your agreement, you can take your chances with the consumer court or civil court. The merits of your case should be decided by your lawyer, depending on your prayer and the proof available. Thereafter the outcome of the court should be awaited.

Dear Madam,

I am planning to buy land in a green belt. I would like to know whether the house can be constructed for own purposes and not for a farm house. People who are selling said it would later become converted under Corporation land. Is it safe to buy land in the green belt and are there any chances of the green belt getting converted into a residential zone. Kindly advise. 

Deepa

Dear Deepa,

You can construct a house on a farm land.  To determine the land use, you can refer to the CDP which is fixed till 2015. The jurisdiction (BBMP, BDA, Village Panchayat, BMRDA) will be clear if you show the papers to a lawyer. 

You should understand the loopholes being exploited and how legal it is before you proceed.

Dear Madam,

I stay in an independent duplex house comprising G + 1st floor at BSK 3rd Stage, Bangalore. I recently applied for a home loan with another HFC in the wake of my current HFC charging very high interest rates. I am considering to take over the existing outstanding amount of loan from current HFC to the new one. 

However, the new HFC has told me that my building has around 43 per cent deviations that need to be regularised. Now that the sakrama scheme is on hold and the revised guidelines for the scheme are only likely by December 2008, what is the way out to convince the new HFC to grant me take-over of loan?

Will I still have to apply for sakrama? I want to immediately switch over from the current HFC to the new HFC and the only block coming in between is the matter that I have outlined above. 

Kindly let me know your views and advice.

Dr Devendra

Dear Devendra,

The building can be regularised only after the Regularisation of Unauthorized Development and Constructions Act amendment comes into force or the sakrama comes into force. 

Alternatively you could simply get the khata, khata extract and tax-paid receipt from the BBMP and approach another bank.

The author is a practising advocate specialising in real estate matters.

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(Disclaimer:  All the answers  are of a general nature. It is advisable to get specific legal advice after furnishing detailed history of individual case.)