As children are the natural legal heirs there would be no problem in inheritance. Once he property can be transferred through inheritance the children could sell it if they want to. Therefore joint ownership of the property is no problem.
My wife and I are planning to buy a plot of land in Siliguri, West Bengal jointly. This property may eventually go to our children or we could sell it. However, the issue is that I belong to general category but my wife falls in tribal category. I am aware that land belonging to tribals cannot be bought by a non-tribal or can the ownership be transferred to a non-tribal. Our children will not be tribal as they have my surname or if we choose to sell the property, the potential buyer may not be a tribal too. My question - 1.Can we own/purchase the property on joint ownership and be able to will it to our children or sell it later on ? 2. Will there be any complication regarding ownership due to issues mentioned above?
During purchase, what is the best way to verify if the land being sold is unencumbered, genuine and safe for purchase?
As children are the natural legal heirs there would be no problem in inheritance. Once he property can be transferred through inheritance the children could sell it if they want to. Therefore joint ownership of the property is no problem.
A due diligence has to be done which means that all the records have to be checked the statement of the ownwr taken on affidavit and also check whether any litigation is pending on the property. Engage a lawyer.
Don’t purchase tribal land in joint names
2) in many states like Jharkhand , Orissa on-tribal marrying a tribal woman will have no right over the land acquired by her nor can it be transferred to their children after the death of the woman. After death, the property will go to the family from whom the land had been purchased
3) better option is to purchase non tribal land
Section 42 (b) of the Indian contract Act provides that the sale, gift or bequest by a khatedar tenant shall be void, if such sale, gift or bequest is by a member of scheduled caste in favour of a person who is not a member of scheduled caste, or by a member of scheduled tribe in favour of a person who is not a member of scheduled tribe.
Meaning thereby, a member of scheduled caste may transfer his interest in whole or a part of his holding only to the member of the scheduled caste and a member of scheduled tribe may to a member of the scheduled tribe only.
The emphasis of Section 42 is to maintain rights of a member of scheduled caste/scheduled tribe in their own category.
The transferee should be a member of scheduled caste, if the transferor is from scheduled caste, and same will be the position in the caste of scheduled tribe also.
As a matter of fact Section 42 does not permit transfer of interest in a land holding by a member of scheduled caste/scheduled tribe even to a person who is not having any caste.
The sole emphasis of the provisions of Section 42 is to protect scheduled castes and scheduled tribes from social injustice and to ensure their economic rights.
For this purpose land holding rights of these sections are kept intact in their own category. In the above circumstances it is not advisable to purchase the land jointly especially under the circumstances prevailing at your end.
Instead you can purchase the land on your name alone if you have any idea of selling the same at a later stage, alternately you can transfer the property to your spouse's name by executing a Will.
In the case of Balu Vs. Birda reported in 1982 RLW 391 it has been held by a learned Single Bench of this High Court that even a compromise by way of which an agriculture land belonging to a scheduled caste or scheduled tribe is transferred to a person who is not a member of such class is hit by the provisions of Section 42 and such transfer by way of compromise is void.
According to learned Single Bench the word transfer includes all direct and indirect methods.
In the case Ramchandra Vs. Om Prakash reported in 1978 RLW 442, the learned Division Bench of this High Court has held that the sale in contravention of the provisions to Section 42 of the Act which categorically forbids the sale by a member of the scheduled caste or scheduled tribe in favour of person who is not member of that class is forbidden by law within the meaning of Section 23 of the Indian Contract Act and it is well settled that where a contract, which a party seeks to enforce, expressly or by implication is forbidden by any law, no Court will lend its assistance to give it effect.
In the case of Chhail Singh Vs. State of Rajasthan reported in 2008 WLC (Raj.) UC 733 it has been held that even if a transfer of an agriculture land belonging to a member of scheduled caste/scheduled tribe comes about in favour of a person, not a member of such category, consequent upon a decree passed by a competent court whether exparte, or by contest, by compromise or fraudulent, is also hit by the prohibition enacted by Section 42 of the Act, and consequently void ab-initio and invalid and no khatedari rights can be conferred on the decree-holder on the basis of such decree.
In the case of V.A. Freindship Solar Park Pvt. Ltd. Vs. State of Rajasthan reported in 2012 (1) WLC (Raj.) 216 Hon'ble Division Bench of this High Court has held that even transfer of land in favour of a juristic person like a company is void if it is made in contravention of Section 42 (b) of the Act. In the case of Amrendra Pratap Singh Vs. Tej Bahadur reported in AIR 2004 (SC) 3782
Hon'ble Supreme Court has held in an immovable property belonging to a tribal, title could not be acquired by invoking the doctrine of adverse possession by a non-tribal. Now you can decide about changing your proposal to buy the proeprty jointly based on the judgments cited above.
It is always advisable that any person desirous of purchasing an immovable property should firstly obtain a legal opinion from a lawyer in the local by producing the copies of all relevant documents pertaining to the property proposed to purchase.
The legal opinion will let you know about the genuineness of the property and may recommend the purchase if it found to be genuine and worth purchasing.
Therefore to doubly sure about the genuineness of the property, you may better obtain a legal opinion from a local lawyer and proceed only if recommended.
It is always advisable that any person desirous of purchasing an immovable property should firstly obtain a legal opinion from a lawyer in the local by producing the copies of all relevant documents pertaining to the property proposed to purchase.
The legal opinion will let you know about the genuineness of the property and may recommend the purchase if it is found to be genuine and worth purchasing.
Therefore to be doubly sure about the genuineness of the property, you may better obtain a legal opinion from a local lawyer and proceed only if recommended.
Dear Sir,
1) Transfer From tribal to non tribal is not allowed but inheritance of land is allowed, thus inheritance of property to your children will not be a problem, but the transfer of tribal land by way of selling might become a problem, as tribal buyer will be required for legal transfer.
2) You should verify the following documents before buying land-
3) Visit the land revenue office to find out details of the land.
Thank you
- As per law, a tribal land holder can only sell his land to the tribe person. if any person buy a land from a tribal by hiding facts, he can go behind the bar , and government will return back the land to original land owner at anytime if he approaches authority.
- Further for selling the plot to non tribe person , permission is required from the office of the DM /Collector , and the said office will grant approval after getting the recommendation from the Tribal Advisory Committee under the clause (b) of Sub-Section 1 of Section 187 of the said Act.
- Further , before granting permission by the advisory committee of the Tribes , the Collector shall make an inquiry as well.
1. Since you wife is tribal , then she can purchase the land and even in joint names , and further mother can write WILL in favour of her children.
to verify that the land is free from encumbrances and has a clear title, engage a local lawyer and ask him to do a title search for you and furnish a report to you along with NEC certificate and other docs.
1. All properties in West Bengal including Siliguri are not restricted to be sold to non-tribal.
2. You shall have to verify from BLRO/Registration Office whether the said property can be sold to a non-tribal or not.
3 If there is a restriction, then you should not go for buying the said property.
1. Collect copies of all the Link Deeds and check it with their originals held by the seller.
2. Conduct title search from the Registry Office for last at least 12 years.
3. Engage a local lawyer for the said purpose.
I am assuming you are buying non tribal land.
Because you can not buy tribal land.
you wife is tribal hence she can purchase the land. No problem in buying in joint name but it will be problem in selling it. There is no problem for children to get that property.
So if you want to buy only for future of children then buy in joint name.
If you believe you might sell it for any circumstances then buy on your name.
the only way to verify the land being sold is unencumbered, genuine and safe for purchase is by getting the documents verified by local lawyer.
even the joint ownership will not work as it will be a loop hole. The only way is to sell it to tribal or keep it with you and your children all your life. Possession is not a problem under law for tribal land. Your wife can file affidavit and state that she has raised her children as as per tribal customs and will the same to them