How could you protect your immovable land property and proof your ownership?
Ownership means you have absolute right over the property that can be exercised at whatever means you like and no one can restrain you in such activities except in accordance with the order of the Court or respective authorities. An ownership may be conditional as well such as lease. An owner means a person who is entitled to use, transfer or confine the ‘subject’ of ownership as per his whims and wishes.Property can be of two types such as movable and immovable. There is another type of property known as intellectual property.This article focuses on immovable land property.A person may become owner of immovable property by the way of sale or purchase, mortgage, lease, exchange, heba, will, gift, charge, succession, allotment, adverse possession, Decree of Courts, power of attorney, agreements or other forms of transfer as stated in the Transfer of Property Act, 1882. All transfer of immovable property must be registered under the Registration Act, 1908.
Succession/ Inheritance: If any person claims ownership through inheritance or succession, He must collect succession certificate from the Succession Court (commonly a Joint District Judge Court empowered to do so under the Succession Act, 1925 and also under the Personal Laws of the communities) and also a partition deed from the concern Court either by filing a partition suit or by depositing compromise deed or solenama signed and executed among the successors or heirs of the deceased. A warisan certificate (to be collected from local government bodies i.e. Pourshava or municipalities, Union Parishad City Corporations etc,.) , a death certificate of the deceased, ID cards of the successors (if any) with photos must be needed in addition to 1% fees of the value of the property must be deposited to the Court for succession certificate and for partition deed registration fees to be paid as per the Registration Act, 1908. There are separate laws on succession regarding Muslim, Hindu, Christian and other Communities in Bangladesh. The successors shall record their name on the property left by the deceased person (propositus) or collect mutation separation paper from land office after receiving succession certificate or registration of partition deed.
Allotment (It is in the format of a lease): For allotment of any land from the Government one must preserve the allotment letter received from the concern authority such as RAJUK, National Housing Authority (jatiyaGrihayanKortripokho), Chittagong Development Authority (CDA) or Rajshahi development Authority (RDA) or Khulna Development Authority (KDA) etc, or Cantonment Board or Wakf Administration or Trust Authority or other government agencies including the Deputy Collector (DC) on khas land or vested land or secretary of concern Ministry or Head of the Department etc,. All payment receipts, application for allotment, sanction letter, gazette publication, registration after allotment, mutation in the name of allotteeetc, are important documents. If any property after allotment is transferred to other than the allottee, the transferee (e.g.buyer) must examine all those papers and documents, take permission from the concern authority in written for transfer of the property, re-allot his name after transfer and pay fees thereof and collect mutation-separation paper to prove his ownership, title and possession over the land property. Registration of a lease is compulsory when it is made by the Lessor (owner of the property who transfers) and lessee (receiver of the property) in excess of one year such as House rent. The allottee is entitled to receive possession after full and final payment of the amount either by installment or at a time. It is common practice that all government owned lands or properties are given in the form of lease not sale such as RAJUK properties.
Caution before purchase: Before purchase any property one must collect No Object Certificate (NOC) and Non Encumbrance Certificate (NEC) from concern land office, Sub-registry Office and search the status of the property regarding any sorts of liability on it such as by mortgage to any bank or financial institutions or lease to any organization which may hamper absolute right over the property after registration of title deed. It is better to check on the respective Courts entitled to try any case on the scheduled land regarding any pending cases/ suits (if any), search to Tahsil office regarding mutation separation of the scheduled land and payment of khajna or revenue to the respective government offices and also to publish in the local and national newspaper of an advertisement on by-na-nama or contract for sale before final contract or sale deed is registered. A buyer must collect all bia-deeds (deeds of previous owners) and Khatians or records of rights to ensure title and ownership of the present owner or proposed seller. A purchaser should collect National ID of the seller and a warishan certificate of the seller and all others who became owner by succession.
Sale deed: A sale deed must be in prescribed form as stated in the registration Rules, 1973 and shall be registered with proper fees (commonly average fees is 9% of the total value). A khatian i.e. CS, SA, RS, BS, Dhaka City Jaripetc, are important for transfer by sale along with mutation separation completed before the A/c. Land and ID Card and Photos of the parties and their signature and thumb impression along with at least two witnesses sign and signature are essential for every transfer. It is further essential to mention chouhaddi or Boundaries and schedule of the property that shall contain mouza no., dag no. or plot no., khatian no., jote no. and also to present the signed and executed document with in 3 months before the registry office. The map of the property and description of 25 years regarding chain of ownership are also essential for transfer of a property. The deed writers or advocates can do the above works and the registration and other fees shall be payable through chalan or bank draft. Hand over of possession is mandatory for sale.
A by-na-nama or contract for sale creates interest and charges over the land until it remains effective and a suit for specific performance of contract under the S R Act 1877 may be filed for executing a sale deed.
Mortgage: There are six types of mortgage. A mortgage must be registered and fees to be payable as stated in the Registration Act. Without permission of the mortgage (section-53D of the T P Act 1882), once a property is mortgaged, it can not be re-mortgaged or transfer by any means. The mortgagee may sale the mortgaged property if the mortgagor fails to fulfil terms of conditions of the mortgage such as a Bank can sale mortgage property to recover default loan amount by auction. The mortgagor may foreclose the property by fulfilling his liability and the mortgagee may redeem the property thereof. In mortgage hand over of possession is not mandatory. Only depositing title deeds may create a mortgage.
Heba: Heba is a way of transfer under Muslim law which is applicable among those who are blood connected. Only 100 taka registration fees are applicable for this type of transfer under the Registration Act, 1908 for declaration of heba. There are hebabilawaz and hebabilshart el ewaz under the Muslim Law. A heba once made can be revoked if conditional. Handover of possession is essential for heba.
Gift: It is very close to heba under Muslim Law but registration fees for gift is high like a sale deed. A gift deed shall be prepared following provisions of the Transfer of Property Act and the prescribed form of sale deed whereas heba deed may follow the prescribed format of sale deed but the Muslim or personal laws to be followed for heba. Any gift under religious provisions of various communities among certain categories of persons as stated in the Registration Act can be executed and registered with a nominal fees of taka 100 only. For gift of RAJUK or other government properties received by allotment, permission from respective authorities may be essential.
Exchange: A property may be transferred by exchange. In exchange value of the property must be reasonable and all other registration formalities to be followed. The registration fees as stated in the Registration Rules, 1973 to be paid for exchange or binimoy.
Decree of Courts/ actionable Claim: A person may become owner by the decree passed by a competent Court in this regard. If any decree is passed in favour of a bank under the ArthaRinAdalat Ain, no registration fees is necessary for registration of such ownership certificate under section 33 (7) of the ArthaRin Ain. There are some other cases when no fees are necessary for registration as stated in the Registration Act, 1908.When a property is transferred by the order of the Court, it is sometimes called boya-nama.
The writer is an Advocate, District & Sessions Judge Court, Comilla.