Sunday, December 25, 2011

A challengable question to Christian Women Property Rights.

A petition has been filed in the Supreme Court seeking a review of a 24-year-old judgment that gave Mary Roy and other Syrian Catholic women as much share as their male siblings in their patriarchal property.

The Supreme Court had on February 24, 1986, held that the Indian Succession Act, 1925, which recognises equal succession rights for daughters and sons, would apply to Christians in Travancore and Cochin, also. The erstwhile states of Travancore and Cochin included areas that now stretch across southern and central Kerala.

Before that, the Christian community of these areas was governed by the Travancore Christian Succession Act and the Cochin Christian Succession Act.

Under the Travancore act, a widow or mother shall only have life interest terminable at death or remarriage. A daughter cannot inherit property intestate (when the holder dies without leaving behind a will or a trust) as much as a son can. The daughter will be entitled to only one fourth the value of the share of the son or Rs 5,000, whichever was less. Even this amount she would not get on intestacy, if stridhanom (dowry) was provided or promised to her by the intestate.

In 1986, not only did the Supreme Court rule that the Indian Succession Act would apply to the community, it also clarified that the provisions would apply to earlier property settlements.

Mary Roy, mother of writer Arundhati Roy and a Syrian Christian from Tranvancore, had challenged certain provisions of the Travancore Christian Succession Act as violative of Articles 14 and 15(1) of the Constitution.

Her father had died intestate in November 1959. Roy went to court for a share of his property. She had a married sister and two brothers.

Now, 24 years later, a Syrian Catholic man has filed a review petition against the judgment.

He claims that though, under the customary law, his father gave a huge stridhanom to his sisters when they got married in 1978, they were seeking a share of his father’s property after his death in 1995.

C.J. Simon, 65, from Kottayam district in Kerala, said the Supreme Court ruling did not apply to all Christians in India, although it is generally believed so.

Even in Kerala, the Vaniya Christians of Chittoor taluk of the erstwhile Cochin state are still governed by their customary law, the Hindu Mitakshara law.

The members of the Anglo-Indian community and the Parangi communities of Cochin are also outside the Indian Succession Act.

Similarly, the Marumakkathayam Christians of Neyyattinkara taluk are not governed by their customary laws in matters of succession.

He sought a similar exemption for the Christians of Travancore and Cochin.

Simon said his family had been following the customary law prevailing in the Syrian Catholic community of Kerala where daughters are entitled to stridhanom as a customary right at the time of their marriage.

Hence, he and his community should be exempted from the purview of the Indian Succession Act.

He also objected to the retrospective operation of the Supreme Court judgment in the Mary Roy case. “This has and will unsettle certain intestate succession of properties among the Christians in these former states and the subsequent transactions of such properties during the period beginning April 1, 1951, to the date of the judgment i.e. 24 February, 1986,” he said in the petition.

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The Law of Succession- Expert Opinion

In India, there are a number of different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies.

WHILE RESPONDING to the various queries that have been addressed to this column over the last few months, I have found that a gradually increasing number pertain to issues of succession. People are interested in knowing about the flow of title upon the demise of the person who was the titleholder.

The law of succession in India falls within the realm of personal law. Due to this, we have so many different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies.

You have the Hindu Succession Act, the Parsi Succession Act, the Indian Succession Act (which applies to Christians for the purposes with which we are now concerned), and even a Jaina Succession Act (which has of course now fallen into disuse, since Buddhists, Jains, and Sikhs are all now governed by the Hindu Succession Act). As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia law of succession and the Hanafi law of succession. Both these laws of succession form part of the common law of India and are recognised as having the force of law by virtue of the Sharia't Laws (Application) Act.

The Hindu Succession Act is a striking departure from the pre-existing ancient Hindu law as had been codified by Manu. It provides a very just and equitable set of rules which cover the issues of succession to a Hindu male or a Hindu female who has died intestate, that is to say, without leaving behind a will. There are of course certain points where the pre-existing Hindu law has been codified without abrogation.

The Indian Succession Act is largely a reflection of the British law as was in vogue at the time.

The Muslim law of succession is derived from the Sharia. The primary source of the Muslim law of succession flows from the Holy Koran. Apart from those issues which are directly addressed in the Holy Book, you have the Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned.

I shall now proceed to the basic rules of succession as set out in the Hindu Succession Act. The Act applies to Hindus (and this includes Buddhists, Jains and Sikhs as well). It includes also cults and sub-sects such as Arya Samaj, Ramakrishna Mission and the like. The Act deals with succession to a Hindu male separately and succession to Hindu females separately.

The coparcenary property of a Hindu male who dies after the commencement of the Act without leaving behind him any female heirs (or male heirs who claim through certain female relatives) will devolve upon the remaining male coparceners equally. This is something called survivorship. It is an exception to the general rule of succession.

The female heirs whose presence would result in survivorship not taking place are the widow, the mother, the daughter, the daughter of a predeceased son, the widow of a predeceased son, the daughter of a predeceased son of a predeceased son and the widow of a predeceased son of a predeceased son. The existence of certain specified male heirs who claim through such female heirs would also result in this rule of survivorship not applying.

The female heirs who have been listed above are known as `Class 1 female heirs'. There are certain male heirs who also fall into this category known as `Class 1' and they are the son, the son of a predeceased son, the son of a predeceased daughter, and the son of a predeceased son of a predeceased son.

Clubbed together, all these heirs are known as `Class 1 heirs'.

If one or more Class 1 heirs survive a Hindu male, such heir or heirs would succeed to the property, to the exclusion of all other relatives.

It is interesting to note that an en ventre sa mere (child in the womb) also has certain rights of succession which are recognized under the statute. The statute provides that if a person dies and an enceinte child would be his heir (had he been alive at the time of its birth), and if such a child is born alive, then, it would succeed to the property of the deceased person as though it had been alive at the time of death.


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WILL- An Outlook

The Indian Succession Act provides for every person of sound mind, not being a minor, to dispose of his/her property by will. It is mandatory that the testator possesses the capacity to make such a will.

A foreigner who owns immovable property in India should preferably make a will, because intestate succession can take a long time for settlement. A local will made in India can be granted probate comparatively easily. The foreign owner of immovable property in India however, is not required to make will in India. A will made outside India is also valid.

A will must be in writing, signed by the testator (or by someone at the discretion of and in the presence of the testator). The will must be attested by two or more witnesses.

A will need not be in legal language, and it is not necessary to use technical terms. At the time of interpretation of the will, regard must be taken, not only to the actual words used, but also to the evident intention of the testator. It is therefore essential that the testator makes very clear his/her intention to dispose of property in a will.

Probate may be granted on a copy or draft of a will which has been lost or mislaid since the death of the testator, or if the same has been lost in an accident.

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Hindu Succession Formula

The following is an outline of the orders of succession and the shares of inheritance for heirs in different groups in India:

If the deceased is a Hindu male (including Buddhists, Sikh, Jain, and all those who are not Christian, Muslim or Parsi):

Class I heirs of a male Hindu who shall simultaneously inherit are:
Mother being alive (1 share)
Widow (1 share)
Living sons (1 share each)
Living daughters (1 share each)
Predeceased son having the following relations (1 share)
widow
sons
daughters – each to be equally divided.

If a predeceased son of this predeceased son leaves a widow, the living sons and living daughters each shall equally share the share of the predeceased son of the predeceased son who has one share with living sons and daughters. Predeceased daughter (1 share) to be equally shared by sons and daughters of the predeceased daughter.

In case there is none in the class I schedule, the property shall go to the class II based order. The earlier order is preferred over the later, (i.e. if an earlier order is present, the later orders would not inherit):

Order I: Father (whole in the absence of anybody in class I)
Order II: Son’s daughter’s son; son’s daughter’s daughter, Brother, Sister ( all in equal proportion)
Order III: Daughter’s son’s son, daughter’s son’s daughter, daughter’s daughter’s son, daughter’s daughter’s daughter (equally)
Order IV: Brother’s son, brother’s daughter, sister’s son and sister’s daughter
Order V: Father’s father, Father’s mother (equally)
Order VI: Father’s widow, brother’s widow
Order VII: Father’s brother, Father’s sister
Order VIII: Mother’s father, mother’s mother
Order IX: Mother’s brother, mother’s sister
If the deceased is a female Hindu dying intestate:

Entry A: Sons (1 share each), Daughters (1 share each), husband (1 share), son and daughter of predeceased son (equally together 1 share), son and daughter of predeceased daughter (equally together I share).

Entry B: Heirs of Husband:
Entry C: Father and Mother
Entry D: Father’s heir
Entry E: Heir’s of the mother
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Equal rights for women in anchestral property

There is disparity in inheritance by the Hindus so far as females are concerned. Prior to enactment of Hindu Succession Act 1956 Hindus in India were governed by Shastric and customary laws which varied from region to region and sometimes it varied on caste basis. The multiplicity of laws in India diversed in their nature; made the property laws even more complex. A Hindu wife was not capable of holding any property separate from her husband. In fact the wife was considered to be a cattle and property of her husband and she could not own property herself. Of the two types of property women were to hold - Streedhan and women’s estate, the holder of the later enjoyed the right during her lifetime and she could not alienate the same. In the constitution of India equality to women was guaranteed for the first time. To secure equality of status to improve Hindu women’s right to property, Hindu Succession Act 1956 came into force.

At the time of enactment of this Act, daughters could not become members of the co-parcenery and the Act did not afford right of natural inheritance to daughter because of the very concept of right by birth and by reason of sex as only males can be coparcener. To do away with this obstacle in achieving equality right of inheritance for women and to give right to the women by birth as coparcener was demanded in order to bring equality before law as a fundamental right.

Since the women in India started occupying major offices the rights of women and their protection gained more importance. Right from the President to other offices which were considered that such offices can only be occupied by male has remained an imagination and the women have occupied the same and therefore new Acts have been enacted by the egislature. And in order to lay down a uniform law and a comprehensive system of inheritance; the Hindu Succession Act came to be amended which applies to any person who is a Hindu by religion in any form or developments including Veershaiyva, Lingayat or follower of Brahmo, Prarthana or Arya Samaj or a person who is a Buddhist, Jain or Sikh by region wherein the daughter shall have the same right as that of a son and she shall be considered as a coparcener of the joint Hindu family. Due to this amendment, the discrimination between the male and female has been removed due to which the imbalance in the ratio of male and female could be curtailed.

From July 2005 the new Act has come into force and the daughter is allotted the same share as is allotted to a son. The daughter shall have a right to claim partition in the joint family properties as well as the right to claim right of partition in the dwelling house of the joint family and she shall also have a right to claim partition during the lifetime of her father. This privilege is only given to Hindu women. The laws applicable to Muslims & Christians do not give equal status to women.

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Tight laws in regulating Real estate: Aview of real estate regulation bill

The realty industry is up in arms over the draft real estate regulation bill ... they don't want it, at least in its present form. They fear it will be the thin end of the wedge, a tool for the government to harass the realty industry, and that it will hit the sector — already impacted by the economic downturn, higher interest rates and spike in construction costs — hard.

The government doesn't think so: it feels the industry needs regulation if consumer interests are to be protected. It says that while the real estate and housing industry has been growing at a CAGR of over 20-30 per cent in recent years, this growth has been largely unregulated. Unscrupulous practices by some developers have led to widespread complaints with consumers lacking an effective grievance redressal or adjudication machinery, the Ministry of Housing and Urban Poverty Alleviation says.

Consumer groups have welcomed the bill; they say the real estate industry is subject to little or no oversight.

What exactly is the bill? The government's draft real estate (regulation & development) bill, 2011 seeks to establish a regulatory oversight mechanism to enforce full disclosure, fair practices and accountability in the real estate sector and to provide for speedy dispute redressal.

Power of the Bill

The bill will establish a 'Real Estate Regulatory Authority' in each state to promote orderly and planned growth, make it mandatory for registration of developers / builders, with the Real Estate Regulatory Authority as a system of accreditation.

Also mandatory public disclosure norms, including details of developer, project, land status, statutory approvals and contractual obligations are included in the bill.

The authority will also establish mechanisms for settling disputes between promoters and allottees/ buyers.

The bill will ensure obligations of promoters to adhere to approved plans and project specifications, and to refund moneys in cases of default and obligation of allottee to make payments and other charges agreed to under the agreement and payment of interest in case of any delay.

The bill also envisages the setting up of a 'Real Estate Appellate Tribunal' by the Centre to hear appeals and to adjudicate disputes, to be headed by a sitting or retired judge of the Supreme Court or Chief Justice of a high court.

The bill also has penal provisions to ensure compliance with orders of the authority and tribunal; and will bar civil courts from hearing matters which the authority or the tribunal is empowered to determine.

The new bill will make it mandatory for builders to specify the area of an apartment in the sale agreement, with a clear breakdown of what the builder is charging for the apartment and a separate calculation for charges levied for common spaces like corridors, parking and lifts.

The bill will also ensure that homebuyers don't get a raw deal by way of arbitrary pricing, and as a first step, the bill has a provision to cap property rates by fixing location-wise circle rates.

The regulator will ensure compliance with these rates.

The government says the Bill will be a game changer, and begin the process of long term cleaning up of the real estate and land sectors.

Adverse impact

However, the industry body, CREDAI (Confederation of Real Estate Developers Associations of India), feels that it will have an adverse impact on the realty sector and the government should bring transparency in its own functioning.

Builders are also concerned over the penal provisions such as three years' jail and penalty of 10 per cent of the project cost. T. Chitty Babu, Secretary, CREDAI and President of Akshaya, Chennai says, “Project launches are delayed as approvals take up to 18 – 24 months and we need to get sanctions from 48 different agencies so unless the statutory authorities are bought under the bill the time delay and hike in cost will not be ended.”

CREDAI National President Lalit Kumar Jain says the bill in its current form is nothing but “a Developers Harassment Bill.”

He told the CREDAI Conclave-2011 at New Delhi that developers faced multiple problems.

The government should cut red tape and take action for a single window clearance system so projects can be speeded up.

Though CREDAI says it has its own mechanism to address grievances, consumer groups say most of the complaints are against builders and developers — such as delayed possession, and a failure to keep commitments.

N.L. Rajah, Trustee, Citizen Consumer and Civic Action Group, Chennai while questioning whether it makes sense to add a new regulatory authority, says the bill should pay special attention to recurring problems that it does not address sufficiently in its present form.

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TEAM Daniel & Boaz
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Apartment Owners Problem

Apartment associations have a long list of dos to deal with. First, there are the meetings that need a quorum, then the yearly and day-to-day accounts that need to be dealt with, apart from constantly looking out for better options with regards to security, pest control and more.

An integrated portal to satisfy real estate services and apartment management, CommonFloor (CF) has a long list of free services for apartment owners. “CF provides a complete private portal for home owners' association to run their society online. Earlier, people joined e-groups but this makes it simpler. Associations benefit immensely, because they can communicate through e-mail and SMS, opt for services related to home (like getting in touch with security agencies, pest control) and manage accounting, complaints and day-to-day activities online,” says Vikas Malpani, Co-founder, CommonFloor.

Started in December 2007 by Lalit Mangal, Sumit Jain and Vikas Malpani in Bengaluru, it also has a database of over 2,000 gated communities from Chennai. “Started with the idea of E-enabling residential communities (apartment complexes, gated layouts, villas or colonies), CF is now serving more than 28,000 gated communities across 100 plus cities in India (and is establishing its presence internationally too). About 2,000 communities are from Chennai alone; we have Twin towerz, Olympia opaline, VGN Minerva, Ceebros, Sunnyvale and Atrium as our members,” explains Vikas.

Through this website, home owners can also let their house out for rent or even sell it. “For someone seeking a home, CF provides the best information on the available properties along with buyer reviews, and helps the seeker connect to the seller. We also act as a sourcing and marketing channel for the property agents, developers, service providers, brands and businesses to offer their services to the target audience.” The name stands for a common platform as it provides a virtual apartment experience. “CF is the first consumer-centric real estate portal in India and we are constantly innovating to cater to all that the consumer needs around his home. We have got fabulous feedback from across the country. We even have active communities from smaller cities like Vishakapatnam, Coimbatore and Kochi.”

Communication, information, management and accounting; the four solutions that CF provides. “Through our offering and with thousands of hours spent on CF by the users we have learnt that it is a very important need that we serve. Our website is a tool to empower the committee and the owners for better and transparent management. In short, we act as enablers who empower the Apartment Associations,” says Vikas.

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Team Daniel & Boaz
Chennai Law Firm
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Will skywalks measure up to soaring expectations?

Within a few years, the city's skyline is set to change dramatically. A lot of attention has been devoted to one component of this transformation – the Monorail and Metro Rail projects. But the many proposals to build pedestrian walkways in the air, broadly termed as skywalk projects, have gone largely unnoticed.

The Highways Department will commission five foot overbridges next year that will have “elements of skywalk”. The CMDA has floated a plan to connect the Chintadripet and Chepauk MRTS stations with a 1-km-long skywalk. The Metro Rail project also has its fair share of skywalks.

These skywalks would provide an island of safety for pedestrians trying to cross busy traffic intersections. Access to mass-transit stations would be more convenient. At least, that is the plan.

But what really are the costs and benefits of devoting urban spaces to build skywalks? Would pedestrian safety improve when a few such facilities come up? The term ‘skywalk' may sound swanky, but are there better solutions available?

Take the example of the skywalk that is slated to come up between the underground Chennai Central Metro station and the Park Town MRTS station. Once passengers climb up from the Metro station located nine metre beneath the ground, they would be expected to ascend a further eight metres to reach the elevated walkway. It would be somewhat similar to climbing a six-storied building at one go.

A similar arrangement would play out at the underground High Court Metro station, where a skywalk is expected to provide inter-modal integration with the Fort MRTS station. Experts term such a setup as nothing more than symbolic attempts to address pedestrian issues.

In response, Chennai Metro Rail Limited officials say that the skywalk near the Central station, estimated to cost Rs.36 crore, is a temporary measure. Efforts would be made to provide an at-grade (ground level) enclosed walkway. “Escalators would be provided wherever possible,” a senior CMRL official said. “However, it is true that providing facilities for pedestrians on the road surface itself is the best solution,” he added.

To highlight this point, a look at Mumbai's experience is instrumental. With its 36 skywalks, built in just three years at a cost of over Rs.700 crore, the city is home to one of the largest skywalk networks in the world. But poor usage of the facilities has pushed the government to halt construction of any more skywalks.

Sudhir Badami, an urban transportation consultant for the government of Maharashtra, said: “The skywalks have not been useful. They were primarily built to disperse crowds from the suburban stations towards taxi stands, bus stops and commercial areas. But surveys show that only 12 per cent of the train commuters transfer to a skywalk.” Terming the ‘yellow caterpillars', which is the street-name for the yellow tinted skywalks, as a blot on the urban landscape, he said people prefer to use the road where there is social contact and eateries as well as shops.

“Besides, climbing nearly 10m is equivalent to walking 100m in terms of energy expenditure. That is why people risk crossing the road and even jump across medians. The only lasting solution is to make the design of our roads pedestrian-centric,” Mr.Badami said.

“Skywalks are just an expensive half-measure aimed at covering up the failings of city administrations that are still unable to provide safe, walkable environments on our roads,” he added.

Mr.Badami also argues that skywalks do work in some specific cases. At least three of the 36 facilities in Mumbai have been successful and they receive a considerable amount of pedestrian flow.

“The point is it cannot be a blanket solution. Escalators do help, but they increase cost. The priority has to be to improve pedestrian facilities on the road, which can be done at a fraction of the cost.”

H.M. Shivanand Swamy, project director of the Ahmedabad Bus Rapid Transit System, said: “It is possible to have a safe pedestrian crossing at the ground level every 250 metres without greatly affecting the interests of vehicle users.” Such crossings are available all along the BRT route.

“It is unfair to make someone climb up 7-8 metres to cross a nine-metre wide road. Urban roads belong to people. The interest of vehicles should be secondary. Mumbai's experience must teach lessons to other cities.”

TEAM Daniel & Boaz
Chennai Law Firm
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Saturday, December 24, 2011

Can metrics help clean Indian property market?

E Jayashree Kurup
I have been writing over the past two weeks about the India Apartment Index that magicbricks.com has launched.

I have received several comments from users in different cities asking why I have not focussed on affordable housing as well as corruption in the property markets.

The only way, I believe to counter corruption is to bring transparency into the deals. That is best effected by having clearly usable tools such as current property capital and rental values, using which you can compute yields etc.

The important thing to remember is that every buyer has a different reason for buying property. If you are an end user, any time is a good time. But if you know how markets have behaved over the last couple of quarters you may be able to adjust the time when you put in your money. It also helps in negotiating prices.

Similarly the more the metrics are used in the market, property purchases become more structured. We are very far away from structured property markets like the US and UK but small first steps are always welcome.

As far as affordability goes, it is a complex problem. Did you know that this sector is taxed and then retaxed. Of the price we pay, 35-48% goes in taxes. Prices of affordable homes will become realistic when the policy makers start reducing taxes at least in that segment. This is what happened in housing finance too. There is differential rates for affordable and other housing.

Many developers who have experimented with affordable housing of Rs 5-10 lakh say the demand is tehere but the finance mechanism cannot cope as the buyers do not have all the income on payslips. Unless that is fixed we will not have the private sector building in this segment.

These are random thoughts to answer your comments. Please keep those comments coming. We will try and create metrics to suit your needs.

Chennai Property Lawyers
@ Daniel & Boaz
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DOCUMENTS NEEDED FOR REGISTRATION.

Duly stamped signed and Executed document

By Notification issued in the Tamilnadu Government Gazette No.6 dated 14.2.2001, under Part II Section 2, the Registration Act, Amendment No.28/2000 has been notified:

It requires the claimant of the Sale Document also to sign in the sale deed and also appear before the registering officer for registration of the sale deed.
Copy of document in the registration copy form (In STAR Offices, this is not required)
NOC from local bodies concerned for the registration of document conveying Land converted as house site without the approved layout.
Patta Transfer application with court fee of Rs.5/- duly filled and signed
Form 60 Statement in case PAN/GIR Number not provided in the document , if the value of the property exceeds Rs.5/- lakhs.
Required registration fees, duplicate registration fees, sub-division fees etc.,
Receipts shall be given by the Registering officer for all amounts received
Patta Pass Book - for agricultural property in Notified 9 Districts.

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A hindu girl who converts her religion can still claim share in father’s property

In a matter where a Hindu woman converted to Islam after marrying a Muslim man and renounced Hindu faith, does not disqualify her to inher...