In a redevelopment project, it is highly recommended to verify and clear the property’s title first before formally deciding on and appointing a builder.

While a builder can be tentatively selected (e.g., via a Letter of Intent or a resolution in a Special General Body Meeting), formalizing the development agreement and starting the actual project activities (like demolition or construction) without a clear and marketable title creates significant legal and financial risks.

Why Title Clearance is Crucial First

  • Legal Requirement: For a builder to obtain necessary municipal approvals and a Commencement Certificate (CC) to begin construction, the society must generally have a clear and marketable title to the land. This is often achieved through a registered conveyance deed or “deemed conveyance”.
  • Risk Mitigation: Unclear land titles are a common source of delays and litigation in redevelopment projects. Title disputes can halt the project indefinitely, leaving both the builder and the society members in a precarious situation (e.g., displaced and without their new homes).
  • Financial Safeguard: A clear title ensures the project is legally sound and makes it easier for the builder to secure project financing and for future buyers in the free-sale component to get home loans. This financial stability is a key factor in a project’s success.
  • Transparency and Trust: Conducting thorough legal due diligence, including title verification, at an early stage demonstrates transparency and helps build trust between the society members and the chosen developer.

Recommended Order of Operations (General Steps)

  1. Initial Decisions & Structural Audit: The society discusses redevelopment and conducts a structural audit to determine feasibility.
  2. Appoint Professionals: An architect/Project Management Consultant (PMC) and a legal advisor are appointed to guide the process.
  3. Title Verification/Conveyance: The society’s legal team conducts comprehensive title verification and works to obtain a clear conveyance deed or deemed conveyance for the property.
  4. Builder Selection: Once the title is confirmed, a transparent tendering process is used to select a reputable builder with a proven track record, financial stability, and relevant experience.
  5. Formal Agreements: A detailed Development Agreement (DA) and individual Permanent Alternate Accommodation Agreements (PAAA) are meticulously drafted, vetted by legal experts, and registered.
  6. Project Commencement: The builder then seeks the required approvals (IOD, CC, etc.) and begins construction.

Prioritizing title clearance helps safeguard the interests of all stakeholders and ensures a smoother, legally compliant redevelopment process.

HOW FAR A CERTIFICATE OF TITLE BY A SOLICITOR/ ADVOCATE IS SIGNIFICANT?

  1. In Ramniklal Tulsidas Kotak And Others vs Varsha Builders And Others on 26 August, 1991

Equivalent citations: AIR1992BOM62, AIR 1992 BOMBAY 62, (1993) MAH LJ 323, (1992) 2 BANKCAS 441, (1992) 2 BOM CR 492

 “(1) A Certificate of Title need not necessarily be unconditional or unqualified. It can be qualified to the limited extent of the implied statutory exception contained in Section 3(2)(b) of the Maharashtra Ownerships Flats Act, 1963, as interpreted above. The Format of the Certificate of Title prescribed by the rules is mandatory, subject only to a limited scope for adaptability as explained in the judgment. A qualified certificate of title must furnish all relevant information as set out in paragraph 19 of this judgment.

(2) The Promoter must fall in one of the several categories enumerated in paragraph 16 of this judgment. To the limited extent, the expression ‘title of the promoter ‘is used in the Maharashtra Ownership Flats Act, 1963, in the special sense so as to permit a particular class of developers to act as promoters, although such promoters/developers are not the owners of freehold or leasehold land.

(3) In the clearest cases, adverse possession can be considered as a marketable title free from all encumbrances. If the claim of adverse possession is disputable and there is a reasonable prospect of litigation, the Advocate is duty-bound to refuse a certificate of title.

(4) The Advocates must never certify doubtful titles as the unwary flat purchasers would thereby be prejudiced.

(5) Advocates owe a statutory and professional duty to protect unwary flat purchasers and the public interest and not merely their clients.

(6) Advocates and Solicitors, by their very training and background, should be circumspect in their action and conduct and should follow the usual norms viz:–

(a) Peruse the title deeds;

(b) Have searches taken in the office of the Sub-Registrar (and also of the Registrar of Companies in case the Vendor is a Limited Company);

(c) Issue Public Notices in at least two newspapers (one in vernacular and the other in English circulating in the area where the property is situated), inviting claims of any member of the public against or in respect of the property in question;

(d) Ask the Purchaser to require his Architect to ascertain whether the land is under setback or reservation;

(e) Administer Requisitions on title and be satisfied with the answers;

(f) Obtain a Declaration on Oath from the relevant persons regarding the factual position before issuing a Certificate of Title.

(The Incorporated Law Society in its written submissions, has recommended the above-referred norms. I accept the submissions.

  1. In my judgment, the Advocate must first address himself to the question as to whether the vendor, lessor, original owner or the promoter has clear marketable title or not. If a clean and clear certificate of title in the terms prescribed can be issued by the Advocate, so much the better. If it cannot be issued because of the land being subject to any preexisting encumbrances, the certificate of title can be adapted to a limited extent as explained hereinafter. In such a case the certificate of title must disclose at least the following:–

                 (1) Nature of the title of the promoter;

                 (2) Nature of the title of the vendor or the promoter or of the                                 person through whom the promoter claims;

                  (3) Encumbrances and claims on the land;

               (4) Steps required to be taken by the promoter for completing title                     as    absolute, clear and marketable while conveying the property                        or causing  the same to be conveyed to the organisation of flat                            purchasers on due date;

               (5) Whether the agreement to sell the flat will bind the owner of the                land?

               (6) Whether the title of the promoter or his vendor or the person                         through whom the vendor claims is of doubtful nature in any                             manner? If so, the nature of doubt entertained.

              (7) Whether the authorisation granted in favour of the promoter by                  the  owner, lessee or the vendor is irrevocable so as to bind the                          owner with the agreements for sale of the flats? Whether an                                agreement to purchase the land by the promoter is revocable or                        irrevocable?

  1. The legal profession is a noble profession. The Legislature has trusted the members of the legal profession to protect the unwary flat purchasers, assist the authorities in controlling the malpractices and safeguard the public interest. In case the title of the promoter or the person through whom the promoter claims his title is doubtful, the Advocate must clearly state in his certificate that the title of the person concerned is doubtful, without any hesitation. Duty to protect members of the public and unwary flat purchaser is of paramount importance and is as important as to assist his client. Members of the legal profession can assist their clients only lawfully and within the limits of law.
  2. I am not prepared to hold that the format of the certificate of title prescribed by the State Government in exercise of its rule-making power is merely recommendatory. If I take such a view, the very object of the law would be endangered and defeated. I am not prepared to hold that the relevant rules are ultra vires the Act. The format of the certificate of title prescribed by the Government is subject to an implied statutory exception in respect of encumbrances on the date which must be disclosed by the promoter and which have got to be removed before the due date fixed by the agreement and the law for execution of conveyance in favour of organisation of flat buyers and obtaining of all necessary approvals, no objections and sanctions required at the stage of execution of conveyance and its registration and not earlier. To put it in other words, a certificate of title can be qualified only to a limited extent as explained above.
  3. A question then arises as to whether an Advocate or an Attorney issuing certificate of title is under a duty towards unwary flat buyers and whether he is supposed to safeguard public interest while issuing such certificate. This question has necessarily to be answered in the affirmative. The certificate of title is required to be annexed to the agreement for sale of flat on ownership basis. It is required to be publicised. Every intending flat buyer is entitled to a copy of the certificate of title. There is acute shortage of accommodation now a days that people hardly go through the document like Agreements for Sale containing number of clauses. It is common knowledge that flat purchasers attach importance to the reputation of the Advocates issuing certificate of title. The reputation of the Advocate or Solicitor issuing the certificate of title is considered relevant by the flat buyers while making their decision to enter into an agreement to purchase the flat. Advocates must help and play constructive role in building of a just society and checking of malpractices by unscrupulous builders, developers and promoters who embark on misadventures to develop the land without any title. It is not required to be stated that under the law of torts professionals like Advocates, Attorneys, Solicitors, Doctors etc, are liable for negligence in case they do not take minimum care expected of them in discharge of their duties. It is not required to be stated that gross negligence amounts to misconduct. In a given case, large number of flat purchasers may enter into agreements for purchase of flats and advance large sums to the builder merely by relying on the name of a reputed Advocate or Attorney who has issued the certificate of title.”     

 

Criminal Consequences of fabrication of title document:

The fabrication of title records is a serious crime in India, classified as forgery under the Indian Penal Code, 1860 (IPC) and the newer Bharatiya Nyaya Sanhita (BNS), 2023.

The law treats the fabrication of documents, especially those relating to property, very seriously due to the potential for significant financial loss and harm to property rights.

Key Legal Provisions

The relevant legal sections addressing this crime include:

Section 463 IPC / Section 336 BNS (Forgery defined): Forgery is committed when someone makes a false document or false electronic record with the intent to cause damage, injury, or to support any claim or title.

Section 464 IPC / Section 335 BNS (Making a false document): This section details what constitutes a “false document,” including creating a document in the name of another person without authority (impersonation), altering a genuine document without lawful authority, or obtaining a signature through deception.

Section 467 IPC / Section 338 BNS (Forgery of valuable security, will, etc.): This is an aggravated form of forgery that specifically covers documents of immense legal and financial importance, such as title deeds and wills. The punishment is more severe.

Section 471 IPC / Section 340 BNS (Using a forged document as genuine): Using a forged document knowing it to be fake, with fraudulent or dishonest intent, is also an offense and is punishable in the same manner as if the person had forged the document themselves.

Section 420 IPC (Cheating): Fabrication of documents is often linked to the offense of cheating, which involves deception that fraudulently or dishonestly induces a person to deliver property.

Punishments

Punishments vary based on the severity and nature of the forged document, and can include: Imprisonment for a term that may extend from two to seven years.

In serious cases involving valuable securities or wills (Section 467 IPC), the punishment can be imprisonment for life or a term extending up to ten years, along with a fine.  Fines may also be imposed in addition to imprisonment.

Advocate participating in fabrication:

His license can be suspended and also can be punished under same  Section

 Conclusion:

Fraud played on title is a serious offense. Advocate and conspirators are playing with peoples hard earned money and it is a criminal offense. It is a criminal offense under BNS Act

 

Shruti Desai

6th January 2026