Property & Succession

The Section 17 (1)(g) of the Registration Act 1908 added by a state amendment by Kerala stipulates that registration is required for a power of Attorney (PoA) meant for transaction of immoveable property except by those executed by some specified close relatives as stated below.

The law that lays down the rules of distribution of property of a Christian dying intestate (without making a Will), is the Indian Succession Act, 1925 (ISA). The Indian Succession Act, 1865, Cochin Christian Succession Act, 1921, Travancore Christian Succession Act, 1916 etc applicable to Christians in the past were repealed and consolidated into ISA.

There is marked distinctions between a lease and a licence though many would think both have no much differences. At one time it was thought that if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. The exclusive possession considered to be an infallible test to decide whether it is a license or not, is no longer an infallible one. The key test now is the intention of the parties involved.

An heirship certificate serves the purpose of identifying the relationship of the heirs to the deceased person. Legal Heirship Certificate is issued by the revenue officers of the executive government - in Kerala it is the Tahsildar - based on the enquiry made by his junior revenue official – the Village Officer. The certificate can be used for drawing an amount not exceeding Rs five lakh as of now. The Legal Heirship Certificate however has some sanctity in revealing the legal heirs of the deceased.

The term succession refers to the process by which the legal heirs acquire the property of the deceased. A Succession Certificate (SC) however is the one that is granted exclusively in respect of “debts and securities” such as Provident Fund, Bank Deposit, Insurance, Shares etc to which the deceased was entitled to, as per Section 370 read with Section 214 of the Indian Succession Act. Therefore, one can apply for a SC only in respect of debts and securities.

A Will prepared by a testator can be registered even after the death of the testator. The Section 40(1) of the Registration Act, 1908 makes it possible. The Section states that the Will may be presented for registration by the testator or after his death, by any person claiming to be his executor or otherwise under the Will.

The essential conditions of a valid contract are informed consent, consideration and lawful object and such agreements are enforceable under the Indian Contract Act, 1872. Even oral agreements are valid in India, as per the act. The Contract Act does not make stamping of agreements compulsory. It does not make an unstamped agreement/contract thereby invalid or unenforceable. Therefore, an agreement does not require mandatory stamping to make it a legal and valid instrument.

Mutation is the last event in the transfer of property from one person to another. Execution of the transfer deed and its registration are the two events that take place normally before the event of mutation. Mutation indicates the change of the name of the land holder for the purpose of making payment of land tax to the government. Mutation happens on three occasions: when a sale takes place, when an owner dies with a Will, or when an owner dies intestate without leaving a Will.