India is a country with strong family values and is known the world over for unbreakable family ties and values. However, if there is one thing that can create a spat between and among the members of an otherwise loving Indian family that is the matter of property disputes. It is in such circumstances that a Property Advocate becomes extremely important. Also, it might be surprising for some to know that property advocates which handle property-related disputes are often some of the busiest advocates in the country. Resultantly, and, not so surprisingly, they also tend to be some of the richest lawyers in the Indian litigation scenario.
This article is an extension of the importance of Property lawyers well-versed with property disputes, to erase any kind of doubts that our readers might have respecting their credibility and importance.
There are predominantly five ways in which a property lawyer can help or assist you with your property related disputes:
1) Mastering the Procedural Law
Property Matters fall within the purview of the civil jurisdiction of the courts. The civil courts of India are notorious for being complex when it comes to procedural related aspects. Also, unlike criminal laws wherein it is only three major legislations, the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, in civil matters a number of laws become applicable. The Civil Procedure Code, 1908 governs the procedure, however, it is very voluminous legislation with a lot of sections, rules, and orders. A layman might not be comfortable inexpertly applying all these provisions to his or her absolute advantage.
2) Being Proficient with the Substantive Law
Although the Civil Procedure Code, 1908 is the bible for civil procedure, substantial rights related to civil disputes, and more so for property matters are spread over a vast variety of laws. For example, if a person dies after having written a will or a testament, the Indian Succession Act, 1925 becomes applicable.
In cases of matters wherein a Hindu person dies without having written a will, the Hindu Succession Act, 1956 applies. This is because, intestate succession in India is primarily governed by personal laws in India and for this an in-depth knowledge of not just the written laws, but also that of customary practices is a necessity. In many cases, the courts have accepted arguments of lawyers based on the existence of some customary practice and have rendered a decision in favor of their client. This is because the Hindu Undivided Family is a concept that has been running in Indian families for centuries now, and even the legislature of independent India was not very keen on disturbing/touching that set-up. Therefore, though, they have tried to incorporate most of the customary laws related to the property (from Shrutis and Smritis and property laws for Mitakshara, etc.) there still exists a possibility that a particular ancient custom might have escaped the wisdom of the legislature. In such cases, arguments may be made along the lines of customs for winning property disputes.
Also, in cases of property disputes, the law that will be applicable often tends to depend on the nature of the property. All the different kinds of property can predominantly be divided into two types- movable and immovable property. The Sale of Goods Act governs matters relating to movable properties, however, it is the Transfer of Property Act, 1882, that governs the major aspects related to immovable properties, mortgage, sale, gift, lease, etc. to name a few.
3) Having In-depth Knowledge of Judicial Precedents and Doctrines
In-Depth knowledge of judicial precedents is also necessary. A layman who intends to fight his case on his own, might not be aware of the landmark judgments in the field of property law. The common law and the principles of justice, equity and good conscience play a very important role when it comes to property disputes. For example, the doctrine of Adverse Possession and easementary rights, first evolved in judicial precedents and it is only later that they were recognized by the Legislature and given statutory backing.
4) Having the Commercial Acumen
Not a lot of people have commercial and business acumen when it comes to property-related matters. However, a Property advocate who has been practicing in the field for a considerable amount of time, often tend to develop such an inclination. For example, what could be the approximate cost of property in a particular area, whether prices of a particular are likely to increase or depreciate in the near future, etc. This business wisdom helps them determine what decision shall be in the best interests of their client, thus preventing any potential loss that the client may have incurred had he not gotten the assistance of the property advocate.
Therefore, it is very evident from the various reasons mentioned above that a property lawyer does play a very important role in property-related disputes and winning a property related legal dispute might just be very difficult, if not impossible, without the assistance of such an expert lawyer in property-related matters.