In India, unlike Western countries, real estate transactions are a cumbersome affair. There is a lot of procedural work that goes in before the deal is sealed – heavy paperwork, verification checks, various legal protocols, etc. Further, what adds more to the grief is the fact that such rules vary from state to state.
Indeed, there are very many ways in which the transfer of property can take place, but what remains constant through it all is the process of registration, followed by mutation.
From a buyer's perspective, it is obvious that the property he expects to purchase has a reasonable and undisputed title. The onus to confirm the title of the property is on the buyer, therefore, it is imperative that he ensures kept up land records/municipal records where all the previous exchanges identified with the property title are appropriately recorded. It is conceivable if mutation is done tenaciously.
It is true that documents like registered sale deeds (a document which ensures that the sale has been executed, and the title of the property has been transferred to the buyer), land records, property tax receipts, etc serve as a proof of registration, but mutation ensures that the same is recorded with the local authorities.
Mutation, as such, is not a legally binding process, but it is an important consideration in terms of it serving as a proof of possession, imposition of tax liabilities by the concerned authorities, solving land-related disputes at the local level, etc.
Mutation, also termed as ‘Dakhil Kharij’, is the process of recording the change/transfer in the title of ownership after the property has been transferred or sold. Once mutation is done, the same is recorded in the land revenue department, which eventually helps the authorities to fixate upon the tax liability.
Mutation, contrary to popular belief, in not a one-time affair. It should ideally be done every six months so as to ensure that no fraudulent transactions concerning the property are being given effect to.
Mutation is required every time a change/transfer of ownership is given effect to. The same could be done in the following ways:
1. Sale/purchase of property – In such a case, the documents that would be required are a copy of the registered sale deed, application for mutation with the court fee stamp, latest property tax clearance documents, indemnity bond on stamp paper, etc.
2. Inheritance of property (intestate succession or through a will) – A copy of the death certificate along with documents establishing the relationship between the deceased and the claimant, a copy of the will, property tax clearance documents, etc would suffice.
3. Power of attorney – In the concerned case, the documents for mutation would be that of a copy of power of attorney papers, affidavit, and indemnity on a stamp paper, property tax clearance documents, etc.
The value of stamp paper in the aforementioned instances would vary from one another.
Types of Mutation
Mutation is of two types:
1. Mutation of Agricultural land – Mutation, in the case of agricultural lands, unlike non-agricultural lands, has a bearing on the title of ownership of the land in question. The transfer of ownership will not be regarded legal, until and unless the mutation process has been duly completed and the same has been recorded in the revenue records.
In case the concerned piece of land is acquired by the Government, compensation would be given to only those people whose names have been registered in the records.
2. Mutation of Non-agricultural land – In such a case, the non-mutation of land will not have a bearing on the title of the property, but will most certainly affect the owner’s liability to pay municipal tax and may even tamper with their water supply and electricity connection. A few examples of non-agricultural lands are independent houses, flats, residential complexes, etc.
Procedure of Mutation
The procedure starts with the submission of the application for mutation with the Tehsildar of the area along with a non-judicial stamp paper of the required value. The aforementioned documents too need to be submitted as per the case.
Once this is done, a proclamation asking for objections to the proposed mutation is issued, stipulating the last date for such objections.
The statements of the parties are also noted and then matched with the contents of the submitted documents to look for any discrepancies. If no objection or discrepancy is found, the proposed mutation is sanctioned.
On the off chance, if any objection is received or a discrepancy is found, the matter is referred to the Revenue Assistant of the area and the particulars of the objections are duly noted. If the concerned parties are not satisfied with the order, an appeal can be filed before the Additional Collector (the concerned Deputy Commissioner) within 30 days of the concerned order.
This is a generic procedure, as the intricacies with regards to the procedure and documents vary from one state to the other.
Difference between Registration and Mutation
Registration, essentially, is the process of getting the title of ownership of land legally transferred in the name of the buyer. Mutation, on the other hand, is what follows the process of registration. Getting a land mutated means that the registration has been duly recorded in the revenue records.
While registration does confer title of ownership and acts as a proof of the same, it is not so in the case of mutation.
For instance, in the case of In Sawarni (Smt.) Vs. Inder Kaur (1996), the Supreme Court held that the mutation of a property in the revenue record does not create or extinguish title, nor does it have any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.
The same was upheld in the cases of Balwant Singh & Anr. Vs. Daulat Singh (dead) by L.Rs. & Ors. (1997), and Narasamma & Ors. Vs. State of Karnataka & Ors. (2009).
The Supreme Court, once again, in the case of Smt. Bhimabai Mahadeo Kambekar (D)Th. LR Vs. Arthur Import and Export Company (2019), upheld the same.
Therefore, it can be concluded that the mutation entries are only for revenue purposes, to ensure that the taxes and revenues associated with the land are being paid regularly without any default.
Finally, registration of property is legally binding, but mutating the same is not.
One interesting fact regarding mutation of property is with regards to the power of the Tehsildar, who apparently appears to be the most important person concerning the process of mutation, to decide the title of the parties associated with the land in question. It is ultra vires. The same was upheld in the case of Marunnoli Vijayalakshmi & Others v/s Tahsildar, Koyilandi Taluk Civil Station & Others (2018), wherein the Hon’ble High Court of Kerala held that once the gift deed had been duly registered under the Registration Act, 1908, the Tehsildar could not have refused the mutation and registry. It was also mentioned that it’s the civil courts that have exclusive jurisdiction over issues of title.
Lastly, to conclude, mutation of property is important so as to ensure that all records with respect to the property in question are up to date. It would help the buyer in selling the property at a later date.