What the law says
The Transfer of Property Act, 1882 defines the transactions themselves. Section 54 deals with sale and provides that a sale of immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. Section 58 deals with mortgage and Section 105 with lease. An agreement to sell, by contrast, does not itself transfer any interest in the property.
The Registration Act, 1908 decides what must be registered. Section 17 makes registration compulsory for instruments that create, declare, assign, limit or extinguish a right in immovable property, and Section 49 provides that a document required to be registered but not registered cannot affect the property or be received in evidence of the transaction. Section 23 requires a document to be presented for registration within four months of execution, with a limited power to condone delay.
Where a seller has agreed to convey but has not, the buyer's remedy is specific performance under the Specific Relief Act, 1963. The Specific Relief (Amendment) Act, 2018 changed the footing of that remedy, making specific performance a matter of entitlement rather than of the court's discretion in the cases to which it applies. Limitation is short: Article 54 of the Limitation Act, 1963 allows three years from the date fixed for performance, or from the date the plaintiff had notice that performance was refused.
For possession based claims, Article 65 of the Limitation Act gives twelve years, running from when the possession of the defendant became adverse to the plaintiff. In Kerala the Kerala Land Reforms Act, 1963 and the Kerala Survey and Boundaries Act, 1961 apply additionally, the latter governing survey, demarcation and objections to a resurvey.
How these matters run
Title and partition disputes are brought as civil suits and follow the ordinary procedure of the Code of Civil Procedure, 1908. A partition suit is decided in two stages: a preliminary decree declaring the shares, and a final decree dividing the property by metes and bounds, usually after a commissioner reports on how a division can be made.
Boundary disputes often begin outside court, through the survey authorities, and an objection to a resurvey has its own procedure and timeline under the Kerala Survey and Boundaries Act, 1961. Mutation, that is the change of the revenue record to reflect a transfer, is done at the Village Office. Mutation records revenue liability and is not by itself proof of title, a point courts repeat often.
Where a dispute is likely, an injunction restraining alienation or construction is usually sought at the outset under Order XXXIX of the Code of Civil Procedure, because a property that changes hands during the case complicates everything that follows.
What to bring to the first meeting
Tick these off as you gather them. The list stays ticked on this device, and the page prints cleanly if you would rather carry it on paper.
Where these matters are heard
Civil suits over property go before the Munsiff Court or the Sub Court according to the valuation of the suit, and appeals follow that hierarchy. Claims under the Kerala Land Reforms Act, 1963 go before the Land Tribunal, and survey objections follow the procedure under the Kerala Survey and Boundaries Act, 1961.
VERIFY WITH ADVOCATE — the current pecuniary limits separating the Munsiff Court and the Sub Court in Kerala, and the courts and Land Tribunals serving Thiruvananthapuram, Neyyattinkara, Nedumangad and Kattakada.
Common questions
I have a registered sale deed but someone else is in possession. What is the remedy?+
A registered deed conveys title but does not by itself deliver possession. The remedy is a suit for recovery of possession, and where the person in possession claims a right of their own the suit will also have to establish title. Article 65 of the Limitation Act, 1963 allows twelve years from when the possession became adverse, so delay in taking action has consequences.
Is mutation the same as ownership?+
No. Mutation changes the revenue record so that tax is demanded from the new holder, and courts have repeatedly held that it does not create or extinguish title. It is useful evidence of possession and of who has been dealt with as the holder, but title has to be traced through the deeds.
Can property be bought on a power of attorney and an agreement to sell?+
In Suraj Lamp and Industries v. State of Haryana (2011) the Supreme Court held that transfers by way of sale agreement, general power of attorney and will do not convey title, and that immovable property can be conveyed only by a registered deed of conveyance. Transactions structured that way leave the buyer without title, whatever the parties intended.
The family property has never been divided. How is that done?+
It can be done by agreement, through a registered partition deed signed by all sharers, which is the quicker and cheaper course where everyone agrees. Where they do not, a partition suit is filed, and the court determines the shares by a preliminary decree before dividing the property by a final decree.