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Sudhir S   01 April 2016

Consenting witness signature

I am planning to get a property (FLAT) registered. This Flat is a part of the owners share as per the JDA (joint development agreement) between the builder and land owners. Later the Owner has agreed to sell the property to the Builder. Now the Builder has sold the flat to me. A sale agreement was executed between the builder and owner initially however the same was not registered. Now that I am purchasing the flat and registering it, it was informed that the builders will be a consenting witness only. My doubt is will these consenting witness sign on all the pages of the document or will they sign only on the pages where their name is mentioned in the sale deed. Thanking you in advance Regards


Learning

 1 Replies


(Guest)

I think you should have mentioned your State because Property you have to refer central act and state act also .

1) Consenting Witness will signl only on last page mostly as witness. 

2) Again state issue. But many state have started taking scan photo , thumb impression , signature. See to it that Witness , Scan photo , thumb impression, signature is also there. (So he can not say easily my signture is fake) 

3) Pay proper Stamp Duty and Regisratrion Fee and Get document compulsory registered , All people whose name exist on land record, all people who have signed development agreement from builder side /firm (All partners)

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I will try to expalin about your transcation

1) Generally Land use to be owned by land owners, he use to give contract to construct building and he himself use to sell the flats etc.

2) When Builder lobby came , they preferred not to purchase the land because for that they had to pay Stamp Duty and registration fee

3) To avoid Stamp Duty and registration fee, Instead of making agreement of construction of building under Contract act, they started making agreement of development (Changed the word for vested interest) and generally put clause after construction following Flats will be alloted to land owners 

4) To sell flats to third party Builders use to take General Power of Attorney to sell flat and  all things in name of original owner thus avoid stamp duty and after construction they use to sell flat to third person form society and do conveyance

5) There was some Judgement from Supreme Court in 2011 that with General Power of attorney you can not sell immovable property  etc. (I have not read) but  it created some caos to such people. So it seems to avoid caos Power of Attorney was not made .

6) Here your person have made development agreement , so he is constructing building for owner and giving further compensation as flat to him for allowing him to construct building

7) Technically Owner is Land owner only . Whether Builder got any permission to sell flat (via Power of attorney ) No. . So who can do the transaction as owner of Property that is  original Land Owner only. 

8) But Developer have right made twisted development agreement. So to reguralize it he is telling Owner of Property (Land Owner) to sell Flat to you (Which is right) and he is going to be witness.

9) While writing this it came in my mind. Capital gain tax  liability builder is avoiding and quietsilently transfering to oriingal owner .(Now you be silent don't tell anything)

10) So while registering All Land owners on land record, All people who signed the development agreement as builders should be party to Agreement of sale for Flat. Technically Land owner is only owner (So Land Owner will sign as Seller ), You will sign as Purchser. and Make all builders & Partners witness or consenting witness.

11) Middle agreement whch was not registered is 100% not valid 1) I am sure proper stamp Duty  is not paid 2) Nor Registration done properly . 

Such agreement is not admissible as evidence in court. (But again if in Maharashtra there is Maharashtra Flat ownership act which help builder if he is shown as flat purchaser) . So all person who have signed this unregistered agreement (Apart from land owner) too have to be made witness .

12) I said Mahrashtra because I know only my state Flat ownership act. Apart from this check land records, building plan ,etc. 

13) If possible additional to my input try to keep some local good advocate (Who knows property transaction) as your consultant and to check whether all papers are in order . People generally don't keep personal advocate rely on other party , try to save some money which can be fatal

14) Your advocate , only you should pay and he should only take care of your interest . Don't allow opp. party to pay or give anything to him .Such people act from two sides and neither trustworthy for both. So Better you have one advocate who can guide you further in person. (Few thousand is worth spending when investing in lakhs or crores ) 

 

 


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