Process of protecting immovable land property and proof ownership
Advocate Shoaibur Rahman Shoaib:
Ownership means you have absolute right over the property that can be exercised at whatever means you like and no one can restrain you in such activities except in accordance with the order of the Court or respective authorities. An ownership may be conditional as well such as lease. An owner means a person who is entitled to use, transfer or confine the ‘subject’ of ownership as per his whims and wishes.
Property can be of two types such as movable and immovable. There is another type of property known as intellectual property. This article focuses on immovable land property.
A person may become owner of immovable property by the way of sale or purchase, mortgage, lease, exchange, heba, will, gift, charge, succession, allotment, adverse possession, Decree of Courts, power of attorney, agreements or other forms of transfer as stated in the Transfer of Property Act, 1882. All transfer of immovable property must be registered under the Registration Act, 1908.
Succession/ Inheritance: If any person claims ownership through inheritance or succession, He must collect succession certificate from the Succession Court (commonly a Joint District Judge Court empowered to do so under the Succession Act, 1925 and also under the Personal Laws of the communities) and also a partition deed from the concern Court either by filing a partition suit or by depositing compromise deed or solenama signed and executed among the successors or heirs of the deceased. A warisan certificate (to be collected from local government bodies i.e. Pourshava or municipalities, Union Parishad City Corporations etc,.) , a death certificate of the deceased, ID cards of the successors (if any) with photos must be needed in addition to 1% fees of the value of the property must be deposited to the Court for succession certificate and for partition deed registration fees to be paid as per the Registration Act, 1908. There are separate laws on succession regarding Muslim, Hindu, Christian and other Communities in Bangladesh. The successors shall record their name on the property left by the deceased person (propositus) or collect mutation separation paper from land office after receiving succession certificate or registration of partition deed.
Allotment (It is in the format of a lease): For allotment of any land from the Government one must preserve the allotment letter received from the concern authority such as RAJUK, National Housing Authority (jatiya Grihayan Kortripokho), Chittagong Development Authority (CDA) or Rajshahi development Authority (RDA) or Khulna Development Authority (KDA) etc, or Cantonment Board or Wakf Administration or Trust Authority or other government agencies including the Deputy Collector (DC) on khas land or vested land or secretary of concern Ministry or Head of the Department etc,. All payment receipts, application for allotment, sanction letter, gazette publication, registration after allotment, mutation in the name of allottee etc, are important documents. If any property after allotment is transferred to other than the allottee, the transferee (e.g.buyer) must examine all those papers and documents, take permission from the concern authority in written for transfer of the property, re-allot his name after transfer and pay fees thereof and collect mutation-separation paper to prove his ownership, title and possession over the land property. Registration of a lease is compulsory when it is made by the Lessor (owner of the property who transfers) and lessee (receiver of the property) in excess of one year such as House rent. The allottee is entitled to receive possession after full and final payment of the amount either by installment or at a time. It is common practice that all government owned lands or properties are given in the form of lease not sale such as RAJUK properties.
Caution before purchase: Before purchase any property one must collect No Object Certificate (NOC) and Non Encumbrance Certificate (NEC) from concern land office, Sub-registry Office and search the status of the property regarding any sorts of liability on it such as by mortgage to any bank or financial institutions or lease to any organization which may hamper absolute right over the property after registration of title deed. It is better to check on the respective Courts entitled to try any case on the scheduled land regarding any pending cases/ suits (if any), search to Tahsil office regarding mutation separation of the scheduled land and payment of khajna or revenue to the respective government offices and also to publish in the local and national newspaper of an advertisement on by-na-nama or contract for sale before final contract or sale deed is registered. A buyer must collect all bia-deeds (deeds of previous owners) and Khatians or records of rights to ensure title and ownership of the present owner or proposed seller. A purchaser should collect National ID of the seller and a warishan certificate of the seller and all others who became owner by succession.
Sale deed: A sale deed must be in prescribed form as stated in the registration Rules, 1973 and shall be registered with proper fees (commonly average fees is 9% of the total value). A khatian i.e. CS, SA, RS, BS, Dhaka City Jarip etc, are important for transfer by sale along with mutation separation completed before the A/c. Land and ID Card and Photos of the parties and their signature and thumb impression along with at least two witnesses sign and signature are essential for every transfer. It is further essential to mention chouhaddi or Boundaries and schedule of the property that shall contain mouza no., dag no. or plot no., khatian no., jote no. and also to present the signed and executed document with in 3 months before the registry office. The map of the property and description of 25 years regarding chain of ownership are also essential for transfer of a property. The deed writers or advocates can do the above works and the registration and other fees shall be payable through chalan or bank draft. Hand over of possession is mandatory for sale.
A by-na-nama or contract for sale creates interest and charges over the land until it remains effective and a suit for specific performance of contract under the S R Act 1877 may be filed for executing a sale deed.
Mortgage: There are six types of mortgage. A mortgage must be registered and fees to be payable as stated in the Registration Act. Without permission of the mortgage (section-53D of the T P Act 1882), once a property is mortgaged, it can not be re-mortgaged or transfer by any means. The mortgagee may sale the mortgaged property if the mortgagor fails to fulfil terms of conditions of the mortgage such as a Bank can sale mortgage property to recover default loan amount by auction. The mortgagor may foreclose the property by fulfilling his liability and the mortgagee may redeem the property thereof. In mortgage hand over of possession is not mandatory. Only depositing title deeds may create a mortgage.
Heba: Heba is a way of transfer under Muslim law which is applicable among those who are blood connected. Only 100 taka registration fees are applicable for this type of transfer under the Registration Act, 1908 for declaration of heba. There are heba bil awaz and heba bil shart el ewaz under the Muslim Law. A heba once made can be revoked if conditional. Handover of possession is essential for heba.
Gift: It is very close to heba under Muslim Law but registration fees for gift is high like a sale deed. A gift deed shall be prepared following provisions of the Transfer of Property Act and the prescribed form of sale deed whereas heba deed may follow the prescribed format of sale deed but the Muslim or personal laws to be followed for heba. Any gift under religious provisions of various communities among certain categories of persons as stated in the Registration Act can be executed and registered with a nominal fees of taka 100 only. For gift of RAJUK or other government properties received by allotment, permission from respective authorities may be essential.
Exchange: A property may be transferred by exchange. In exchange value of the property must be reasonable and all other registration formalities to be followed. The registration fees as stated in the Registration Rules, 1973 to be paid for exhange or binimoy.
Decree of Courts/ actionable Claim: A person may become owner by the decree passed by a competent Court in this regard. If any decree is passed in favour of a bank under the Artha Rin Adalat Ain, no registration fees is necessary for registration of such ownership certificate under section 33 (7) of the Artha Rin Ain. There are some other cases when no fees are necessary for registration as stated in the Registration Act, 1908.
When a property is transferred by the order of the Court, it is sometimes called boya-nama.
Power of attorney: The realtors or developers in Bangladesh started this malpractice to take power from the land owner and develop the property by construction of flat or apartments and to sign on an agreement regarding sharing of the flat or apartment among the land owners and developers. It was with an object to dodge government taxes. It is still in practice and now become lawful under the Power of Attorney Act, 2012. The realtors taking irrevocable power of attorney (RIGPA) registered to the Sub-Registry office along with an agreement on sharing and selling. Under an irrevocable power of attorney, the attorney or relators or developers has given lots of rights which shall remain in force even after the death of the executor or cancellation of the power. The lay out plan, permission from respective authorities, construction design etc, are also important for flat or apartment construction.
Agreement/ Tri-parte agreement: An agreement regarding land development or construction is commonly made under the Contract Act, 1872 that creates rights and interest over land if registered.
A Triparte agreement is allowed under the Contract Act 1872 and also under section 59 of the Transfer of Property Act 1882. Regarding Banking transaction, a tri-parte agreement may be held among the buyer, seller (developer or Realtors Company) and the bank. An individual may not enter into a tri-parte agreement with the bank and Bank can not sold/ sale any property unless the borrower remains defaulter or the borrower desires to do so with full payment of loan outstanding amount.
The maximum ceiling of land is 100 bigha under the Order of 1972 for those becoming owner by succession and for those who purchase property can not purchase more than 60 bigha in one’s own name. This ceiling of land provisions is not applicable for certain types of business and for companies such as in respect of tea garden.
Mutation Khatian: A mutation khatian shall be collected from the A/c land office with the production/submission of a deed such as sale deed, boyanama, exchange deed, succession certificate, partition deed etc,. The A/c land shall register a mutation-separation case and insert name of the new owner with a new khatian, jote no. and dag no. following previous CS/ SA/RS records and schedule of land stated in the title deed.
The A/c lands collects revenues during such mutation-separation with a Duplicate Carbon receipt (DCR). The order in a mutation separation case may also be collected for future references.
Record of Rights/ CS, SA or RS, Dhaka City Jarip or BS khatian or Porcha: If any property is recorded as usual there must have a chain of CS (Cadestral Survey, upto 1920), SA (state acquisition upto 1960), RS (Revisional Survey upto 1990), BS (Bangladesh Survey upto 2010), Dhaka City jarip (from 2009) in the name of the owner. If the record is in the name of the government or others, it is a fatal defect to the chain of ownership.
During survey, a case may be filed before the Settlement Court for correction of records known as a case under section 29, 30 and 31. When final gazette is published, a person can file a case before respective Civil Courts for corrections of records under section 31 or 36 or 39 or 40 of the Specific Relief Act, 1887 as applicable.
Filing Case/ suits for defending title: One can file a case under section 144 and 145 and also under section 133 of the Code of Criminal Procedure, 1898 before the Executive Magistrate for defending ones possession. However, a decision of Civil Courts shall supersede the decision of a criminal court on property related disputes. No Court fees are necessary for filing a criminal case.
A person can file a title suit under the Specific Relief Act, 1877 (section 8 read with section 42) or an injunction suit under Order 39, Rule 1 and 2 of the Code of Civil Procedure, 1908 for defending his ownership and possession. Court fees are mandatory for filing a civil suit.
To retain possession against an individual one can file a suit under section 9 of the S R Act, 1877 known as suit for khas possession.
A writ is sometimes provides extraordinary remedy to defend ownership and possession under articles 32, 42, 44 and 102 of the constitutions when no other equally efficacious remedies are available.
A person may become owner of land property by adverse possession i.e. if he can enjoy and retain possession for more than twenty years without any interruption. Regarding government land one can claim ownership by possession after a period of continuous enjoyment of sixty years such as khas land or vested property or abandoned property or property owned by alluvion and dilluvion.
In short, the above are most common ways in Bangladesh to own land property.