Laws For everyday life
Look before you purchase land
S. M. Masum Billah
RIGHT to property is predominantly revolved around owning landed property. One of the means by which a person owns property is purchasing of land. Given the context of our country an intending purchaser of land is put in a perplexed situation and is bewildered by the congruities of law and the provocation of the go-betweens. At times, taking possession of the purchased land becomes a remote possibility on the buyer's part due to the reason that the said land is not free from encumbrances. Precisely for this reason a buyer of land should have to be diligent in order to avoid the post-buying hazards. There are some points which can help a prospective buyer in purchasing a piece of land.
1. How the seller (owner) had owned the land? In case he is an owner by purchase the connectivity with previous ownerships should be scrutinized. In case he had become owner through inheritance the partition deed may be inquired of to see his share in the holding.
2. In applicable cases, the CS (Cadastral Survey) khatiyan, the SA (State Acquisition) khatiyan and the RS (Revisional Survey) khatiyan or the latest khatiyan whatever, should be examined. In an area where a land survey is going on the field porcha may be inquired into. In case if it is discovered that there is a dispute on this land, the buyer is to be sure about the settlement of the dispute from the settlement office.
3. The documents shown by the seller should be compared by the buyer going to sub-registry office. If the papers do not resemble with the records kept in the relevant Register it should be presumed that the papers are forged.
4. The mutation porcha and the repayment receipt of land development tax should also have to be examined by the purchaser. Failure of this may render a purchaser liable to pay the land revenues due by himself. The duty of the buyer is to examine the consistency between the latest document and the earlier one (popularly known as baiya dalil) in terms of the amount of land, holding number, khatiyan number etc
5. The purchaser also needs to be sure that the land which he is going to buy is free from all encumbrances. Free from encumbrances means that the land is not a mortgaged one or is not a subject matter of a legal dispute, or is not a government khas land or not a declared vested property land or land decided for acquisition. This information can be found from union tahshil office, upazilla land office or district DC office. If there is a certificate case or there is a litigation pending, the land is not worth buying. Sale of a land during the pendency of a proceeding is prohibited and hence void.
6. The purchaser also should be aware that the intended land is also not subject to prohibitory land area. The Government at times forbids selling of land in particular locality for development or environmental purposes.
7. There is a cardinal principle of land transfer, 'no person can hand over a better title than he himself has'. If the seller's title to the land is faulty, he has no authority to sell the land. His transfer would be void. So, an intending buyer should be aware of this aspect. If he buys the land from the authorized person of the owner the power-of-attorney should be verified in order to see his extent of authority to sell the land.
8. A co-sharer by inheritance has a right of pre-emption i.e. priority right of purchase in case of land transferred by other original co-sharer. The purchaser may face legal challenge if such pre-emption right is overlooked by the seller. So, in case of valuable property it is better to bring notice to all that he (the buyer) is going to buy such and such property.
These all seem to be a big order. But to avoid further complexities such precautions are important. Great loss can be avoided by a reasonable due diligence in purchasing of land. In transfer of property law there is a well recognized principle known as caveat emptor. The doctrine of caveat emptor implies that 'let a purchaser exercise proper caution who ought not to be ignorant of the amount and nature of the interest which he is about to buy.' It is true that the seller also owes a major legal responsibility to ensure all the formalities of transfer of land and convincingly proof that he has the legal authority to sell the land. But prevention is better than cure. It is equally important that the buyer should make the seller disclosing all the material facts affecting his property.
S. M. Masum Billah teaches law at Northern University, Bangladesh.
