Before You Pay the Token: A Title Check-list for Buying Property in Gujarat

The advance that becomes a suit

Almost every property litigation this office handles began with money paid before the papers were seen. The token was paid because the rate was good and somebody else was interested. The satakhat (સાટાખત, agreement to sell) was signed on a printed form. Four months later the buyer discovered that the land was navi sharat, or that a boja nondh in favour of a bank was sitting on the record, or that the seller was one of five heirs and the other four had never signed anything.

A title search costs a small fraction of one year of litigation. What follows is the sequence we actually work through, in the language the records are kept in.

Start with the revenue records: 7/12 and 8-A

For non-city-survey land, the two basic records are the saat-baar utaro (સાત-બાર ઉતારો), being Village Forms 7 and 12 read together, and the aath-a (૮-અ).

The 7/12 shows the survey number or block number, the area, the assessment, the name of the kabjedar or occupant, the tenure, and any charges or other rights entered against the land. Village Form 12 records the crop, which is why an agricultural entry on land the seller describes as a plot should be examined rather than ignored. The 8-A is the account of a particular khatedar and shows all the survey numbers held by him in that village, which is useful for catching land the seller has not disclosed and for confirming that the person named on the 7/12 is the person sitting in front of you.

Both can be viewed on the AnyROR portal, but a printout from the portal is not a certified record. Take a certified nakal (નકલ) from the e-Dhara Kendra at the Mamlatdar's office and compare the two. Discrepancies between the online record and the certified copy are common and they matter.

For land within a city survey area, the corresponding record is the milkat patrak (મિલકત પત્રક) or property card, obtained from the City Survey Superintendent.

Trace the chain through the ferfar nondh

The 7/12 tells you who holds the land today. It does not tell you how he came to hold it. That history sits in Gaam Namuno 6 (ગામ નમૂનો ૬), the hakkapatrak or register of mutations, where every change is recorded as a ferfar nondh (ફેરફાર નોંધ) with a running number.

Ask for certified copies of all entries for at least the last thirty years and read them in sequence. What you are looking for is the kind of entry each one is. A vechan nondh records a sale. A varsai (વારસાઈ) entry records inheritance, and it should be checked against the death certificate and the list of heirs, because an heir left out of a varsai entry is the single most frequent source of later litigation. A hayatima hakk dakhal entry records rights entered during the holder's lifetime. A boja nondh (બોજા નોંધ) records the creation of a mortgage or charge, and the absence of a corresponding entry cancelling it means the charge is still alive on the record whatever the seller says about having repaid the bank.

Check whether each entry is certified and by whom, and whether notices under Section 135-D of the Gujarat Land Revenue Code were issued to interested persons before certification. An uncertified or disputed entry is not title, and an entry certified without notice is vulnerable.

Tenure: juni sharat and navi sharat

This is where transactions in Gujarat fail most often, and it is not visible to a buyer who does not read the tenure column.

Land held on juni sharat (જૂની શરત), old tenure, is freely transferable subject to the general law. Land held on navi sharat (નવી શરત), new tenure, or new and impartible tenure, carries restrictions. It is usually land that came to the holder through a tenancy or grant statute, and it cannot be transferred without the prior permission of the Collector and, ordinarily, payment of premium.

Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, as applicable in Gujarat, restricts transfer of land purchased or deemed purchased by a tenant under that Act without previous sanction. A transfer made in breach is not merely voidable between the parties. It is invalid, and the land is liable to be treated as sharatbhang (શરતભંગ), breach of condition, with proceedings for forfeiture to the State. A buyer who has paid the full price and taken possession is left arguing about restitution against a seller who has spent the money.

Where the seller says the land has been converted to juni sharat, ask to see the Collector's order and the premium receipt, and confirm that the conversion has been carried into the 7/12 by a ferfar nondh.

Two categories that cannot be bought at all

Land held by a member of a Scheduled Tribe is protected by Section 73AA of the Gujarat Land Revenue Code. Transfer to a person who is not a member of a Scheduled Tribe requires the previous sanction of the Collector, and transactions in breach of the section are invalid. A power of attorney and a possession letter do not cure the defect.

Gauchar (ગૌચર) land, village grazing land, sim talav, and government waste land vest in the State or the panchayat and are not private property at all, whatever construction may be standing on them. Land belonging to a public trust cannot be sold without the sanction of the Charity Commissioner under Section 36 of the Gujarat Public Trusts Act, 1950, and a sale deed executed by trustees without that sanction is liable to be set aside.

Agricultural status, khedut and binkheti

Only a khedut (ખેડૂત), an agriculturist within the meaning of the Bombay Tenancy and Agricultural Lands Act, may purchase agricultural land in Gujarat. Section 63 of that Act renders a sale to a non-agriculturist without the required permission invalid. A buyer who is not an agriculturist should have his status examined before, and not after, the satakhat.

For non-agricultural use the land must be converted. Binkheti (બિનખેતી) permission is granted by the Collector under Section 65 of the Gujarat Land Revenue Code, and is followed by a sanad (સનદ) setting out the conditions, the permitted user, the setbacks and the time within which construction must begin. Read the sanad. Land granted binkheti permission for residential use and then put to commercial use is in breach, and the breach travels with the land to the buyer.

Town planning: original plot and final plot

In areas covered by a Town Planning Scheme, the survey number described in the seller's documents is the original plot, and what he is entitled to hand over is the final plot allotted in its place after deduction. Obtain the F Form and the scheme records from the Ahmedabad Municipal Corporation or the concerned authority, and check the status of the scheme, whether draft, preliminary or final. A buyer who pays for the area of the original plot and receives the area of the final plot has paid for land that no longer exists.

Registered documents and the search at the Sub-Registrar

Take Index No. 2 entries from the Sub-Registrar's office covering the property for the last thirty years. This shows registered transactions and is the check against the revenue record, because a document may be registered and yet never mutated, or mutated and never registered.

Registration in Gujarat is now processed through the GARVI system, which makes verification of a document's registration particulars considerably easier. Check that the sale deed relied upon by the seller was properly stamped under the Gujarat Stamp Act, 1958, because an inadequately stamped instrument creates problems of admissibility for everyone who comes after. Compare the consideration with the jantri (જંત્રી), the Annual Statement of Rates, since stamp duty is payable on the higher of the consideration and the jantri value and a shortfall will be recovered later with penalty.

Encumbrances, litigation and possession

Search the CERSAI records for registered security interests. Ask for a no dues certificate and the original title deeds if a bank loan has been repaid, and if the seller says the originals are with the bank, that is a mortgage that has not been discharged.

Search the records of the civil courts and the High Court for pending litigation concerning the property. Section 52 of the Transfer of Property Act, 1882 makes a transfer during the pendency of a suit subject to the outcome, and a buyer takes the litigation with the land.

Then go and stand on the property. Check the boundaries against the measurements, check for a ganotiyo (ગણોતિયો) or any other occupant, check for encroachment, and check whether the kabjo (કબજો) the seller promises is a kabjo he actually has. Where a third party is in occupation, take advice before proceeding rather than assuming that the Gujarat Land Grabbing (Prohibition) Act, 2020 will provide a quick solution afterwards. We have written separately on that statute.

Publish a jaher notice (જાહેર નોટિસ) in two newspapers, one of them a Gujarati daily circulating in the area, inviting objections to the intended purchase, and preserve the tear sheets.

If you are buying a flat rather than land

Much of the above still applies to the land under the building, and to it are added the promoter's obligations under the Gujarat Ownership Flats Act, 1973 and registration of the project with the Gujarat Real Estate Regulatory Authority. Verify the RERA registration number on the authority's portal and read the disclosures. Ask for the approved plans, the building use permission and the completion certificate, and check whether the land has actually been conveyed to the society or association or whether the promoter still holds it. For a resale, ask for the share certificate, the society's transfer no objection, and proof that maintenance dues are clear.

Paperwork and payment

Pay through banking channels only, and record each payment in the document. Where the consideration is fifty lakh rupees or more, deduct tax at source under Section 194-IA of the Income Tax Act, 1961 and issue the certificate, since the failure surfaces years later when the buyer sells.

Be careful with a seller acting through a power of attorney. Verify that the power is registered, that it is subsisting, that the executant is alive, and that it actually authorises sale rather than merely management. Sale through an unregistered general power of attorney does not convey title.

Execute the vechan dastavej (વેચાણ દસ્તાવેજ), register it, and then complete the last step that buyers routinely postpone: apply to the Talati-cum-Mantri (તલાટી-કમ-મંત્રી) for mutation, follow the entry until it is certified, and confirm that your name now appears on the 7/12 and the 8-A, or on the milkat patrak for city survey property. Until that entry is certified, the record still shows somebody else as the holder, and the record is what the next purchaser, the next bank and the next court will look at.

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Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. For specific legal issues, you should consult a qualified lawyer.