Property & Succession

When a person approaches a court for specific performance of an agreement in regard to a sale of immoveable property, the person must have performed or has been ready and willing to perform his obligation as a buyer as part of the agreement, under Section 16 of the Specific Relief Act, 1963 (SRA).

Attachment creates no charge or lien upon the attached property. It merely prevents and avoids private alienations. It does not confer any title on the attaching creditors. There is nothing in any law which makes the attaching creditor a secured creditor or creates any charge in his favour over the property attached. A charge on the other hand creates no interest in or over a specific immovable property, but is only a security for the payment of money.

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Christian Succession Act, 1921, Travancore Christian Succession Act, 1916 etc applicable to Christians in the past were repealed and consolidated into ISA.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.

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.