I was introduced with Fedora back in the year 2012. My laptop was formatted and since then I am using Fedora.
Initially I was hesitant to use Fedora. Being from a complete non technical background I had this idea that Linux and other free software things are very difficult to use, one has to have a very sound technical knowledge and above average technical intelligence to understand it. And as I considered myself I had none of the aforementioned. So I have kept a safe distance from it.
On 28th January 2012 my life took a turn. The then onward I got reintroduced with Linux and other free software things and was introduced with Fedora. To my utmost surprise saw that it was rather easy than difficult. I started my journey with Fedora 16 and now I have Fedora 20 running on my laptop. In these two years I not only am comfortably using Fedora I am also suggesting people to use it cause its easy, first, user friendly and moreover a free software. Meanwhile I have attended some of the events and conferences related to open source such as Pycon Bangalore.
I wrote my dissertation for Master of Laws using Spinx and restructured text. The result came awesome my dissertation looks superb just like a law book fresh out of printing. Some of my classmates thought that I have printed the whole dissertation (which is almost 1000 pages) none of them actually believed that I have done it in my laptop, siting at the corner of my room using two super amazing tools called Spinx and restructured text. This made me realize that this will be as helpful to my fellow Advocate friends also as it is to me.
I want to contribute to the community. This year during FOSSASIA in 2014 I have attended talks given my Gonkii on Fedora A-Z and How to contribute to fedora among other talks. I have also attended the workshops on the same. I realized that I found my way to contribute to the community. I have applied for the Ambassadorship in Fedora and Tuanta is my mentor. Right now I am reading the wiki to understand the different parts of the project in a better way.
I was introduced with Fedora back in the year 2012. My laptop was formatted and since then I am using Fedora.
According to The Black’s Law Dictionary the term ostensible owner means “apparent owner”.
Benamidar , benami property has a special sigificance today specially with respect to the scams we are having these days.
Meaning and definition:
The word ‘Benami’ has been originated from Persian vocabullary and it literally means ‘property without a name’.
Section 2(a) of the Benami Transactions (Prohibition) Act, 1988 states , “‘Benami transaction’ means any transaction in which property is transferred to one person for a consideration paid or provided by another person.”
Under Section 2(c)of the Benami Transactions (Prohibition) Act, 1988 states,” Property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.”
The word benami property means the property which has purchased in the name of some person other than the person who has financed it. The person who has rendered the required money for the said purchase has not purchased it in his name but in the name of some other person’s neme. The person who financed the property has not really purchase and/or purchased it to the benifit of the person on whose name he has purchased it.
The person on whose name the proerty has been purchased is called the benamdar and the property so purchased is called the benami property and the person who has financed the said purchased is referred to as the real owner.
Legal Significance :
1.The beneficial ownership vests on the real owner.
2.The benamidar bears the ostensible title as described in the Tranfer of Property Act,1882.
3.There is no intention to benefit the person in whose name the transaction is made by the person who has financed the purchase of the said benami property.
4.The name of that person, benamidar, is an alias for that of the person beneficially interested the real owner.
Purpose of holding the benami property:
There are several purposes generally most of those are illegal ones and only to fulfill the illegal intentions of the people :
1.The benami transactions were made in order to find a way with the land ceiling laws, so the real owner can have more landed properties than provided in the abovementioned laws.
2 The abovementioned transactions are made to transfer the property in the name of the relatives of the real owner or some other’s name to evade taxation as provided by the tax laws.
3.Benami transactions were also used as a way to conceal black money obtained through corrupt practises.
Intoduction of the Benami Transactions (Prohibition) Act, 1988:
To irradicate the malpractices prevailent due to this practice Government of India introduced the Benami Transactions (Prohibition) Act, 1988.It is a piece of prohibitory legislation which has introduced to illucidate and/or to reduce and/or to prohibit the malpractices of this benami ,furzee transactions.
The Act allowed deals in the name of wife or unmarried daughter.
Punishment under the Act:
Section 3 of the Act penalise the person who has proved to be guilty under the with the imprisonment of a term which may extend upto three years or fine or both. The section prohibits the benami transaction. The section goes as follws:
” Section : 3. Prohibition of benami transactions-
(1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974), an offence under this section shall be non-cognizable and bailable.“
Burden of proof:
According to the Benami Transactions (Prohibition) Act, 1988 the burden of proof lies o the persoon who is claming and/or asserting that the transaction is the kind of aforesaid transaction i.e benami transaction. While initially the person aeerting the same has established his contentions in the Court of Law the burden of proff shifts on the person on whom it has alleged that he has been part of benami transactions. The rules of onus probandi applies here.
Deficiencies in the aforementioned Act :
Due to lack of proper machianary the provisions of the Act could not be properly and/or strictly implemented.The scope of the Act was quite restricted for this restricted scope the Act was unable to solve the problems,render justice and security to the people who were distress as a result of the benami transaction.The Act was also unable to able acquire the properties which were in hands of benamidar and therefore the Government could not been able to use those lands in fovour and/or for the benifit of the people at large. Though Section 5 of the Act had the clear provision for acquisition of the benami proprties.Section 5 of the Act states as follows:
“Section 5: Property held benami liable to acquisition:
(1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed.
(2) For the removal of doubts, it is hereby declared that no amount be payable for the acquisition of any property under sub-section(1).“
It is nearly 2 and a half decade since the Act was passed, but it has made absolutely no impact or a very less impact which the Act has been able to create in the minds of the common people. The benami transactions are still excessively prevalent in the society. These widespread deals are one of the prime cause for proliferation of black money. Though the Act provides penalty and strictly prohibits the benami deals no such strong action has been taken against persons resorting to such deals freely ,to deter others from entering into the benami transaction.With passage of time it has become a curse upon the society.Now a days it is quite a common practice among the which has invoked a cause of concern for the concerned authority, the Government and the society as a whole.
Introduction of the Benami Transactions (Prohibition) Bill 2001:
The aforesaid Act was not enough to eradicate the issues which were prevalent due to the practice of benami transaction. Various concerning authorities were making various recommendations and keeping these recommendation in mind the Government has introduced Benami Transactions (Prohibition) Bill, 2011. The Legislative Assembly introduced a new bill to eradicate this problem from its root The Benami Transactions (Prohibition) Bill, 2011 was introduced by the Ministry of Finance in the Lok Sabha on August 18, 2011 to enact a new legislation to prohibit benami transactions. This Bill replaces the existing Benami Transactions (Prohibition) Act, 1988.
This new Benami Transactions (Prohibition) Bill 2011 offers a wider scope. With its wider scope the new bill will be a great help to deal with this social fallacy i.e. benami properties. Due to the narrow and ambiguous scope of the Act many such cases regarding benami properties could not be solved.But now with the wider and specific scope of the said such cases can be easily proved in the court of law.
Ostensible Owner : Section 41 Transfer of Property Act , 1882: The relation between ostensible owner and benamdar:
Meaning and introduction:
The word ostensible , according to Mitra’s Legal and Commercial Dictionary means ” Able to be seen ; apparent ; assumable ; avowed ; deceptive ; pretended ; delusive ; delusory ;…
The word ‘ostensible’ has two meanings – a) that the object bears a certain from or appearance without suggesting that it is or is not that of which it has the superficial appearance , and
b)that the object bears a certain appearance but is not really that of which it bears the appearance. [case law : Debi Singh v/s Jagadish Saran AIR 1952 All 716 ].
Ostensible owner is the person who is though not the real owner but has all incidents and/or characteristics as the real owner.The person on the face of it i.e apparently looks like the real owner but in fact he is not the real owner.Though he owns the property and all the property documents, papers and records are on his name on a minute scrutiny it can be found that he has never the intention to own the property.The ostensible owner only fulfills and/or carries somebody else’s wishes and/or aims. As per the wishes of the ostensible owner puts his name as an owner on the records of the property although his has the intention to own the property. The money required as the consideration of the property is funded by the real owner i.e. the person whose wishes are carried on by the ostensible owner,that person who had the intention to buy the property.
1.Kannashi Vershi v/s Ratanshi Nenshi AIR 1952 Kutch 85 :-
It was held in the above mentioned case that an ostensible owner is one who has all the indicia of ownership without being the real owner.
1.Jamanadas v/s Uma Shankar (1914) 36 All 308 ,25 IC 158.
2.Seshumull M shah v/s Sayed Abdul Rashid and ors AIR 1991 Kant 273 , 278.
3. Muhammad Sulaiman v/s Sakina Bibi (1922)44 All 674 ,69 IC 701 , AIR 1922 All 392 :-
It was held in the above mentioned cases that the possession of a manager cannot be treated as an ostensible ownership with the consent of the real owner and it was held to be so even in a case where the manager’s name had been entered in the Municipal House Register as the real owner.
Real test for tracing whether a person is ostensible or not :
For determining whether a person is ostensible owner or not :
- Firstly, we have to search the source of money which was needed for the purchase of the property concerned whether it is the same person whose name is there in the property documents or some other person’s name is there in those documents.
- Secondly, whether the person having his name in the documents of the property in question has any intention to purchase the same or not.
- Thirdly, it is the most important test for determning whether a person is ostensible owner or not that who is the person who is really enjoying the property so purchased or some other person is enjoying the same on his behalf. If the person aho is the owner as per the records and the documents of the proerty so concerned the chances of being ,it a property of an ostensible owner or he being an ostensible owner is quite less. And if the person whose name is there in the property documents is not similar then it enhances the chances of it being a property of ostensible owner who is fullfiling the wshishes of the real owner. Enjoying the property here does not only mean the mere enjoyment of the property being in the possesion of the property but includes the saling rights ,right to lease out the said property and get the consideration from the same , to enjoy the benefits out of the said proeprty etc. Enjoyment has been given a broadr aspect in this aspect and perticular case.
- Fourthly , the reason behind it being given the aspect of ostensible ownership , i.e the reason why the real owner has not purchased same in his own name .
For the purpose for performing the real test the person has to take the reasonable care as a man of ordinary prudence.
In my last post I was discussing about the documents that has to be produced at the time at th time of taking the loan to the bank and now today we will be discussing about those documents seperately :
Title deed :
Title Deeds are those documents which are Conclusive Legal proof that aperson owns a particular property.
According to Wikipedia , “A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed.”
General Clauses Act,1897 “Document” shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose or recording that matter.
The Law Commission Report states -
“Deed – a written document which is executed with the necessary formality, and by which an interest, right or property passes or is confirmed, or an obligation binding on some person is created or confirmed. A common example is a conveyance or transfer of land.”
Para 2.6 of The Law Commission defines the Deed as – “A deed may be defined as a written instrument which is executed with the necessary formality, and by which an interest, right, or property passes or is confirmed, or an obligation binding on some person is created or
Kinds and/or of Deed:
There are two kinds of Deeds as the following :
a. Deed Poll:
Deed Poll are those in ehich there are one party only and are so called because they wre at one time polled or cut level at the top.
Eg : Power of Attorney where there is only a party granting the power.
Indentures are Bilateral contracts.There are two or more parties in the indenture. Indenrutes were so called as at one time they were indented or cut with an uneven edge at the top, this was an old practice.
Parts and/or Divisions o the Deed:
A deed of transfer generally as prctice divied into the following parts :
- Description of the Deed,
- Names and or name Parties
- Operative Words
- Exceptions and Reservation (if any)
- Covenants (if any),
- Signature and Attestation.
Each of these parts are discussed below :
1.Description of the Deed :
At the inception of the deed it describes the nature of te deed such as-” THIS DEED OF MORTGAGE” , “THIS DEED OF SALE” , THIS DEED OF LEASE” .
After the nature of the deed is described then the deed states the date of excution of the deed. The date of the registration is written is teh date of execution such as ” The Second day of April Two Thousand and Twelve (the 2nd April 2012).
After the date is mentioned then the names of the parties whether he is a third party,Firm, Government, Juridical person, Idol, Minor, Trustee, Insolvent, Hindu Copercenary, Insolvent, Mentally disabled person, Persons with disability etc and there particulars such as- age(where applicable),address etc are mentioned. It should also be mentioned that whether he is a transferee or transferor.
Recitals can be divided into two parts are as follows:
- Narative Recitals:
This part of the deed states the histrory of the property trasferred and/or the subject matter of the deed. It staes the transfer flow of the property.
- Introductory Recitals:
It explains the reason and/or motive behind the preparation and execution of the deed.
Generally The Recitals starts with the word “Whereas”.
This is the operative part of the deed.This part begins with ” Now this deed witnesses”.
6. Consideration : quid pro que:
Section 10 of the Indian Contract Act,1872 states ” What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in 1[ India] and not hereby expressly repealed by which any contract is required to be made in writing 2[ or in the presence of witnesses, or any law relating to the registration of documents.” Therefore according to the section in every deed consideration should be there. Section 27 of the Stamp Act states that consideration should be truly and fully stated. The penalty of such omission to comply with this requirement will be charged with a fine which may extend to Rs.5000. The consideration should be written both in words and in number.
Acknowledgement of the receipt of the consideration may be embodied in the deed itself instead f passing a separate receipt. It generally starts as follows:
“Now this deed witnesses that in pursuance of the aforesaid ageeement and in consideration of Rs in words (in number) paid by the purchaser to the vendor before the execution hereof , the receipt of which the vendor hereby acknowledges”.
8. Operative Words :
After receipt real operative words follow. The operative words explains the real nature of the transaction .
This is the technical expression meaning description of the property transferred and it follows the operative words.
10. Exceptions and Reservations:
All the exceptions and reservation should me mentioned in the deed.Unless all the exceptions (something existing at the date of the execution) expressly excepted in the deed it would pass with the property as described in the parcel.
Reservations are something relating to the subject property which are not there at the date of execution but is newly created by the rant etc.
Habendum is Latin word which means “to have and to hold”. The deed will expressly mention the property which the transferee will have and hold . This confers the whole right in the property to the transferee.
12. Covenants and Undertaking :
Covenants and Undertaking must be entered after Habendum.
13. Testimonium :
This is not an mandatory part of the deed but this is general tradition to mention the testimonium . Testimmonium sets forth the fact that the parties have signed and sealed the deed in presence of the witnesses as named in the deed.The companies,firms etc use their seal in the deed. It states as follows: “In the witness whereof the parties hereto have hereunto set their respective hands and seals the day and year first above written”.
14. Signatures and Attestation:
The Parties must put their signature and the date of the same.
The witnesses must do the attestation by putting their signatures attesting that the parties have put their signatures and seals in the presence of the witnesses as named in the deed.
The most common question which arises while dealing with mortgage for the practical purpose as in while taking loan from banks and financial institutions that what are the document which should be produced to the bank or the financial institutions . The documents which are gernerally required by the banks at the time of taking home loans are as follows:
- The Title Deed of the property to be mortgaged which bestows the ownership upon the person whishes to take mortgage the same
- The Agreement for Sale with the present owner with the previous owner in respect of the property to be mortgaged.
- The Prior Deed and/or Deeds of the property to be mortgaged ( at least of the previous 15 years).
- The Title Deed of Municipal tax receipts and/or the Property Tax Bill paid by the owner of the propety (in respect of the property to be mortgaged) .
- The Mutation Certificate in the name of the ownerof the property to be mortgaged.
- Assesment Registration Copy ( from the municipal authority)
- . Record of Rights (porcha) ( if any).
- Khajna receipts (if any).
- The Posssession Certificate from the concerned authority (if any).
- Certificate an/or Permission from the Land Acquisition department (where applicable).
If the registration of the concerned property has not been taken place yet :
- The Agreement for Sale between the present owner and the person willing to mortgage the poperty.
- The Title Deed of the present owner .
- Along with the other necessary dicuments as abovementioned.
In case of a Joint Property:
- Where the property is owned by the person who whises to take the loan along with other co-owners i.e. the property is a joint property thefore the permission from the other owners.
- . The property to be mortgaged must be demarked .
- Deed of Partition demarkating the subjct property (if any).
- Deed of Declaration demarkating the subject property (if any).
These aforesaid documents are the necessary documents (photocoied) which need to be submitted at the time of application for the loan . At the time of disbursement of the loan the bank will require some dicuments to submit the documents in original.
MORTGAGE a common but ambiguous term in today’s loan oriented society. The popular term mortgage carries with it various vague ideas .We the common people know that we need to mortgage our property in order to get loans such as house building loans, car loans, educational loans and so on.
Generally speaking when a person wishes to buy some movable or immovable property for which he is in need of money , then he can take loan mortgaging his movable or immovable property. In case of mortgage the banks or financial institutions give loan by securing the repayment of the loan with the interest in a specific movable and/or immovable property transferred by the person who has taken the loan. Mortgage works as a security of the loan amount . It is way to secure profit for the bank and/ financial institutions and it is the way of getting loans for the common people, builder and/or company, firm etc.
Mortgage is French term which means ‘death contract‘.The term death contract means that the pledge
(promise, bailment, guarantee ) ends only when the loan is repaid , the obligation is fulfilled or when the borrower takes over and/or sells the collateral, the mortgaged property by way of foreclosure.
Kinds and Definitions of Property:
Property is of two kinds movable and immovable.
Immovable property is a kind of property tat can not be moved i.e the property attached to earth.
The following acts have given several definitions of the term ‘immovable property’ :
Section 3(26) of the General Clauses Act, 1897 states that “ immovable property ” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
According to Section 2(6) in The Registration Act, 1908 ” immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.
Section 3 of the Transfer Of Property Act, 1882 states “ immovable property ” does not include standing timber, growing crops or grass:”
All other kind of property which is not immovable property is movable property.
The following Acts give the definitions as under mentioned:
Section 3(36) of the General Clauses Act states that” movable property” shall mean property of every description, except immovable property.
According to Section 2(13) of the Civil Procedure Code ,1908 “movable property includes growing crops.”
Section 2(9) of the Registration Act , 1908 states that” movable property includes standing timber growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.”
According to Section 22 of the Indian Penal Code 1860 “movable property are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.“
The way of providing loan :
In case of movable property loan is given through hypothecation i.e. Pledging of something as security without delivery of title or possession (Black’s Law Dictionary 8th edition) by the banks and/or financial institutions.
In case of immovable property loan is provided by way of mortgage.
The Acts which deals with mortgage in India:
In India The Transfer of Property Act, 1882 deals with mortgage of immovable property. Chapter IV , Sections 58 – 104 of the said Act deals with mortgage .The Transfer of Property Act deals with the substantive part of mortgage of immovable property on the other hand The Civil Procedure Code ,1908 deals with the substantive part of it. Chapter XXXIV of The Civil Procedure Code, 1908 Suits relating to the mortgage of immovable property deals with the procedural part of it.
The general principles of mortgagecontract is guided by the Indian Contract Act ,1872.
Definition of the term Mortgage:
According to the Section 58(a) of the Transfer of Property Act 1882 “A mortgage is the transfer of interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan , an existing or future debt or performance of an engagement which may give rise to a pecuniary liability.”
The transferor is called the mortgagor , the transferee is called the mortgagee, the principal money and interest of which payment is secured for the time being are called the mortgage -money, and the instrument (if any) by which the transfer is effected is called a mortgage deed.”
The Black’s Law Dictionary (7th) Edition defines the term “mortgage”:
- ” A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon performance according to the stipulated terms.
- A lien against property that is granted to secure an obligation (such as debt) and that is extinguished upon payment or performance according to stipulated terms.
- An instrument (such as a deed or contract) specifying the terms of such a transaction.
- Loosely the loan on which such a transaction is based.
- The mortgagee’s right conferred by such a transaction.
- Loosely any real- property security transaction , including a deed of trust.”
Therefore by way of mortgage deed the mortgagor transfers his interest in a specific immovable property ,the mortgaged property for securing the payment of mortgaged mortgaged money to the mortgagee.
Legal significance and/or essential elements of the term mortgage:
- There must be a transfer of interest
- The interest transferred must be some specific immovable property.
- The purpose of the transfer must be to secure the payment of any debt or performance of an engagement which may give rise to a pecuniary liability.