Can Adopted Child Claim Right In Biological Father’s Property?

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Can Adopted Child Claim Right In Biological Father’s Property?

Mumbai-resident Nandgopal Radhakrishnan had three sons, Nikhil, Anay and Vivek and a daughter, Manjula. Since his best friend Ashok Kumar was childless, he decided to give his eldest son Nikhil in adoption. In the course of time, Radhakrishnan’s two sons passed away and he married off his daughter.

When it was time for Radhakrishnan to give his moveable and immoveable assets to his only daughter, Nikhil threw spanner in the works to claim his share. He filed a partition suit but lost the case. MakaaniQ tells you why Nikhil’s contention didn’t hold much water.

According to Hindu Adoptions and Maintenance Act, 1956, after adoption, the adopted son/daughter lose all the rights of a son/daughter in their biological family, including the right to claim any share in the estate of the biological father or relations, or any stake in the coparcenary property. The only exception where an adopted child is not entitled to the full rights of a biological child in the adoptive family were if he/she was adopted by a disqualified heir.

The child is entitled to inherit from his adoptive father and other lineal descendants, like a biological heir. At the same time, the adoptive father and his relations too are entitled to inherit from the adopted boy. A child can only be adopted if he/she is Hindu, not previously adopted, unmarried and has not turned fifteen yet.

The property rights of an adopted son/daughter are limited only to inherit the property of his/her adoptive parents. But, at the same time, if the natural parents want to give their property to their natural child, they may do it by way of gift or will.
Thus, it can be inferred that for all intents and purposes, the adopted child is treated like a biological child into the family into which he/she has been adopted and is considered the descendant of the family.

Documents To Check To Avoid Property Fraud

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With our lifetime savings, we all plan to buy our dream home. While the cost of the property and the means to fund it are important, it is equally critical that you don’t end up becoming the victim of a fraud. Hence, it is essential to know which documents need to be checked when you buy a property.

Sale deed

This is the core legal document, a proof of sale as well as the transfer of ownership from the seller to you. A sale deed should be registered, apart from ensuring that the property has a clear title.

Mother deed

This is the parent legal document which helps trace the antecedent ownership of the property. You will need this document to sell your property in future. One has to ensure that the mother deed has recorded the references to previous ownerships in a continuing sequence until the current owner.

Approval plan of your building

A property owner must obtain an approval plan either from the jurisdictional commissioner or any other officer authorised by the commissioner. To obtain a building approval plan, one has to submit the following documents. These include:

Title deed

City/panchayat survey sketch

Latest tax receipts

Foundation certificate

Land-use certificate

Property assessment extract

Property PID number

Earlier sanctioned plans

Drawings of the property

Conversion certificate

As a large part of the land in India is still farmland. This is why revenue authorities issue a conversion certificate, stating the change in land use from agricultural to housing. A no-objection certificate should be obtained from the tehsildar’s office for this conversion.

Encumbrance certificate

This means a change in the ownership on property that has been held against a home loan. In other words, this document will give you proof of mortgages, title transfers or any legally registered transaction against your property.

Power of attorney

A power of attorney is a document that legally given an authority to an individual to rent, sell or mortgage the property on his behalf. But, this document, too, should be registered.

Tax receipts

Take a detailed look at all the receipts to ensure that taxes have been paid until the date of sale. Ask for the latest original receipts in order to establish the credentials of the owner. If your seller does not have the tax receipts, you can contact the municipal body by using survey number of the property in order to confirm the ownership. Other regular bills such as water and electricity bills should also be checked.

Completion certificate

A completion certificate by municipal authorities states that a building is in compliance with the rules and is built according to approved plans.

Occupancy certificate

To ensure that the building is meeting all the required norms, an inspection will be performed by the authorities when the developer applies for this certificate. In a nutshell, the certificate certifies that the project is ready for occupancy.

It is important to hire a lawyer who will vet all these documents and guide you through the process.

Can Resident Indian Buy Property Abroad

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Can Resident Indian Buy Property Abroad

The provisions related to owning of an immovable property outside India by a resident Indian, are governed by the Foreign Exchange Management Act (FEMA).

Owning an immovable property

The FEMA restricts Indian residents from owning any immovable property outside India, without a specific or special permission from the Reserve Bank of India (RBI). However, this restriction is not applicable to two types of resident Indians, who are allowed to own an immovable property. The first category consists of people, who are not Indian citizens but reside in India and own an immovable property outside India. The second category includes residents of India, who acquired the property on or before 8th July 1947.

Fresh acquisition of immovable property by an Indian resident

The RBI has given permission to certain categories of people to acquire immovable property outside India. The immovable property can be acquired either through gift or inheritance, or it may be purchased for a consideration. All residents of India are allowed to receive the immovable property, either through gift or by way of inheritance, from a person who has purchased it on or before 8th July 1947. Similarly, a resident is also allowed to receive an immovable property from a person, who had either acquired such property while he was resident outside India, or had inherited the same from a person who was resident outside India at that time.

Indian residents are also allowed to purchase immovable property outside India, subject to certain conditions on the payment of the consideration. The consideration for the purchase can be paid by the Indian resident, from the balance held in his Resident Foreign Currency (RFC) account. A resident Indian is also allowed to buy an immovable property of any value outside India and remit the consideration, within the limits laid down under the Liberalised Remittance Scheme (LRS). The quantum of remittance under the LRS should not exceed USD 2.5 lakhs, every year. This limit is applicable to all the transactions taken together, like overseas education, travel, maintenance of relatives outside India, expenses on medical treatment outside India, etc., and includes the purchase of immovable property.

See also: Dos and don’ts for NRIs Investing in Indian Realty

Lease and other avenues

A resident of India is also allowed to acquire an immovable property outside India under a lease, for a period that does not exceed five years at a stretch. The property so acquired by a person who is resident in India, can be gifted to any of his relatives, including spouse, brother, sister and any lineal ascendant or descendant of the person. If your case does not fall in any of the above categories, you can still buy an immovable property outside India by taking a special permission from the RBI.

Who is a resident of India?

The definition of a ‘resident’ under the FEMA is different from that in the Income Tax Act, 1961, where the period of actual stay determines your residential status. In the FEMA, the intention to stay is the determining factor. A person becomes a non-resident on the day he leaves India, if he leaves for the purpose of employment, business, or for any other reason with an intention to stay outside India for an uncertain period. Likewise, a person coming to India will become a resident, irrespective of his citizenship, if he comes for the purpose of employment, business or for any other reason with an intention to stay for an uncertain period.

Tips – Verify Your Flat Purchase Documents Without a Lawyer

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Tips - Verify Your Flat Purchase Documents Without a Lawyer
Tips - Verify Your Flat Purchase Documents Without a Lawyer

Due diligence and awareness of your rights can certainly protect you against unscrupulous practices by developers. In an industry that still lacks transparency, it is best to physically inspects all documents before buying any property. First and foremost, drafting a sale agreement should be done with the utmost care. A property buyer should fully understand its contents; if necessary recruit a lawyer, and make a clear note of all the deliverables the developer has agreed to.

Anuj Puri, chairman and country head of JLL India, cautions that “Developer’s sales teams will usually present a buyer with a readymade agreement, and a buyer must ensure that this captures every relevant detail.” He continues, “If it does not, the buyer is fully entitled to ask for missing details to be included and potential grey areas to be clarified. A copy of the final agreement must be retained under any circumstances, as this will serve as the primary evidence in a legal action filed for agreement violations.”

Here is what you need to watch out for when checking purchase documents:

1. Personal details

The agreement must capture the seller’s complete details. This includes father’s name, address, PAN number and bank account information. It must also provide exact details of the property’s location and municipal, tehsil (administrative division) or collector’s land record number. The agreement ought to be witnessed by two people, each from the buyer’s and seller’s side.

2. Title documents

“The seller must confirm the authenticity of the title documents and ownership transfer in the agreement,” explains Puri. “He must also state clearly that the transfer and handing over of possession, is happening in a legal and fully-attested manner. The agreement must reflect the fact that all dues related to the property, have been cleared up to the date of transfer.” Further, the agreement must fully indemnify the buyer from any disputes related to title and possession of the property.

3. Date of possession

“The date of possession of a flat is important to the purchaser, for the purpose of transfer of the flat from the builder. It is the date on which the purchaser is to get possession of the premises and binds the developer to hand over possession by the date set out in the agreement. If possession is not given by such date, the purchaser has a right to sue,” informs Anirudh Hariani, solicitor of Hariani and Company.

The ‘time of essence’ clause in an agreement lays down the contractual deadlines for the parties to perform their due obligations.

4. Payment schedule

“The clause which sets out the payment schedule, lays down the total amount to be paid and the time frame within which it is to be paid,” details Hariani. “In cases where the payment is made in instalments, the payment schedule specifies details of each instalment. This helps avoids any ambiguities which may arise in the future,” points out Hariani. The agreement must provide complete payment details by the buyer, including that of the mortgage, if any.

5. Termination

The termination clause defines the consequences imposed on the parties in case of deviation from the code of conduct expected to be adhered by them. The agreement may contain either a ‘termination by convenience’ clause where either party can end the agreement.

6. Dispute resolution

The dispute resolution clause sets out the mechanism by which the parties can resolve their disputes. This is alternative to settling the matter through litigation. Besides this, other processes used to settle commercial contracts include adjudication and mediation.

7. Amenities

The amenities clause helps the purchaser know the additional benefits he will be entitled to and mentions the supplementary amount towards maintenance charges. In case of any default on the amenities sought to be provided, the purchaser may consider it as a breach of contract.

8. Penalty

A penalty clause should be incorporated in the purchase agreement, clearly specifying milestones and the penalties in case of failure from both, seller and buyer.

Finally, registering a legal purchase agreement, is of benefit to the buyer, since it offers protection from legal complications at any stage of ownership or eventual resale. No change can be made once the purchase agreement is drafted and registered. If any change needs to be made, the consent of the buyer must be obtained and an addendum will be made in the agreement.

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