A Transfer of Property occurs when a person’s rights and interests are transferred to another person. The property’s original owner has the legal right to transfer the property to anyone they want under the terms of the law. The term “Illegal Transfer of Property” refers to when a property is transferred without the approval of the rightful owner. Factors like lack of knowledge of legal intricacies involved, time constraint, inability to travel and rising real estate prices in India attracts complications like illegal transfer of property.
In all property conflicts involving NRIs, Illegal Transfers or Mutations are widespread, and as a result, the number of civil actions filed in India has increased. The legitimate title to assert the claim to ownership must be secured by the actual owner of the property. The ownership of the property or house must be reflected in the name of the current legal owners in all official records to avoid any fraud. In addition, if there is any fraud, the title must be unambiguous to fight the legal battle. Under Section 5 of the Transfer of Property Act of 1882, various prerequisites for legally legitimate transfers are established. Both parties must be alive, and the transfer can take place in the present or in the future. The term “living persons” refers to legal entities such as a corporation, an association, or a group of individuals. A minor cannot transfer property, but he can be a transferee, which means he can buy and receive the property.
There are two basic ways to inherit a property: through a Will document or, if there is no Will, through the law of natural succession. In the latter situation, class I legal heirs inherit under Indian succession laws. If the owner is still alive and willing to transfer ownership, he can do so using a Gift Deed, which is a legal way of transferring ownership in the name of a family member or friend.
Ways of illegal Transfers –
Power of Attorney –
It is the document in which the real owner of the property gives powers to another individual. People provide general, non-restrictive POAs to their friends and relatives in a variety of situations. People misrepresent themselves in many situations, and there is betrayal by even family members or close relatives, who provide proof of complete distrust and have property transferred in their names. As a result, extreme caution should be exercised while giving a POA to anyone. If extra powers are granted, there is always a risk of their being abused by vested interests.
Forging or fabrication of documents
Forging of documents is another popular strategy for transferring property illegally. People falsify facts on property documents, such as fraudulent wills, which are used to transfer property in the names of people to whom it does not belong. This could be done by someone to dispossess the other shareholders of their due share. One of the most prevalent tactics is for the defaulter to take advantage of the absence of the others and provide fictitious ownership to gain control. Any owner who wishes to see a mutation must inform the prior owner of his or her death. For selfish reasons, some business owners choose not to provide such information.
Impersonating implies faking one’s identity and presenting themselves in court as one of the property’s holders in right. They occasionally assert the rights of others.
Doctrine of Fraudulent Transfer
The Illegal Transfer of Property to defraud creditors is known as fraudulent transfer. Section 53 of Transfer of Property Act, 1882 deals with the doctrine of Fraudulent Transfer which it states that every transfer of property, which is immovable in accord with the appropriate section of the Transfer of Property Act, 1882 which is done possessed with an intention aimed to delay or defeat the creditors of the transferor shall be voidable. A fraudulent transfer must be made with the intent to deprive the creditor of his equitable and reasonable rights.
Prerequisites of Fraudulent Transfer under Transfer of Property Act include:
- Transfer of the property done by the transferor
- It should be immovable property.
- Transfer is done without consideration
- Transfer is done with the intention to defraud a subsequent transferee and with intention to defeat or delay his creditors.
- Such transfer is voidable at the choice of the consequent transferee.
Remedies which are available to the owners
Civil Law Remedies
A legal lawsuit for declaration and possession might be filed by the true owner. The court might declare him the owner and give him control of the land. If the property wrongfully transferred is joint property, a civil claim for partition and separate possession may be filed. It is not necessary to file separate cases for each type of remedy. Depending on the facts and circumstances of the case, reliefs can be joined.
Criminal Law – A complaint can be filed to the Police if the facts of the case can make out an offence under Indian Penal Code.
Limitation Period to File the Lawsuit
The statute of limitations for filing a case is three years from the date of the alleged improper transfer. This period begins on the date that the illicit transfer is carried out. Extra time may be claimed after the three-year extension period has expired on extraordinary grounds specified in the Limitations Act.
Our firm specialises in matters pertaining to Non Resident Indians and over a period of 18 years we have the expertise to resolve the matter of similar situations. We ensure that the best suitable advice is given to Clients in their matters. A client who is already suffering at the behest of his relatives/friends needs the right direction and guidance to get back what rightfully belongs to him/her. The objective of the firm is that we provide the most requisite services and resolve the matter in shortest possible time. Contact now for any advice.