Advocate Selvakumar|Property Advocates in Bangalore|Senior Lawyer
The pre
demand of sale of stabile property is agreement to sell. The agreement to sell
contains, terms of sale, thought, time limit, the entire description of
property in agreement to be sold , terms of payment, redeeming possession and
rights of each the parties to enforce the agreement, and penalty for not
performing the contract. Generally, the purchaser pays some quantity as advance
quantity, earnest to seller that is acknowledged by the vendor within the
agreement.
Importance of Sale Agreement:
The sale
deed could be a document that contains general terms that are similar in most
of the deeds.
But the
agreement to sell could be a specialized document that conceptualizes the terms
of contract. The skill, knowledge, expertise of the advocate is mirrored in
drafting the agreement to sell and therefore the clauses inserted to shield the
interest of the customer, who has compound together with his cash.
There is a
practice among several to avoid the sale agreements and to travel directly
available deeds. This can be terribly risky. Agreement to sell is needed to
avail the bank finance. Apart from availing finance while not a sale agreement
no one is guaranteed to execute sale deed and convey the property, which might
back out at the last moment. Although the customer had created all the
arrangements for the thought quantity and revenue enhancement the seller might
back out if he finds another customer for higher thought. Likewise, even the
customer may additionally back out if he finds similar property for lesser
thought. The sale agreements bind all the parties to perform the contract.
The process
of sale is ruled by the provisions of Transfer of Property Act. If there's any
conditions in agreement to sell that vary from the rights and obligations of
the vendor, customer as elaborated in Transfer of Property Act, the terms that
are in agreement in agreement to sell shall prevail over. If no conditions, are
mentioned in agreement, the rights and obligations of marketer, purchaser as
elaborated in Transfer of Property Act comes into force. Having paid the
advance quantity, (or) earnest, can the customer have any charge, lien over the
property for the amounts paid? The Transfer of Property Act governs the rights
and obligations of vender and customer.
Rights of Agreement Holder:
In case of
sale, the customer gets title and possession to the property as long as the
transfer is affected in accordance with the law u/s fifty four of T.P. Act,
managing sale of stabile property. Sec fifty four of T.P. Act states that – “Sale
however created – such transfer within the case of tangible stabile property of
the worth of 1 hundred rupees and upwards, --- is created solely be registered
instrument.”So registration of the sale deed is necessary and solely
thenceforth the customer gets title. It conjointly states that the agreement to
sale itself doesn't produce any interest in or charge on such property. During
this reasonably state of affairs if the vendor refuses to transfer the property
beneath agreement to sale then the queries that arise for thought are:
-Whether customer beneath agreement to sale is entitled to solely
damages alternatively stabile property as per agreement?
-If the customer beneath agreement to sale is in possession of stabile
property will he be disposed
of stabile property?
So far as
1st question worries Sec forty of Transfer of Property Act states that “Where a
3rd person is entitled to the good thing about associate obligation arising out
of contract and annexed to the possession of stabile property however not
amounting to interest in that or easement on it, such right or obligation is
also implemented against a transferee with notice there from .
Ex: – “A
Contracts to sell a house to ‘B’ whereas the contract continues to be operative
he sells identical house to ‘C’ who has notice of the contract. ‘B’ might enforce the contract against ‘C’ to
identical extent as against ‘A’. From
this we discover that, the customer with notice of a previous contract
available of identical property is within the eye of the law could be a trustee
of the potential customer of previous agreement of the property thus purchased.
Even u/s 91 of the Trusts Act, the title of the following customer with notice
of the previous agreement is subject to the obligations created by the agreement
to sell. So, the agreement holder might proceed against a customer of the
property who had notice of contract prevailing. Sec twenty seven (b) of the
particular Relief Act entitles the customer beneath agreement to sell to compel
consequent customer to execute a buying deal deed in his favor.
In order to
possess higher hold on the property in agreement to be customer the agreement
to sell is also registered, and a paper notification is also free to apprize
the overall public regarding the agreement.
Purchaser in possession of the
property:
For the
second question as aforesaid earlier i.e., if the customer beneath agreement to
sale is in possession of the property, will he be unfortunate of the stabile
property?
In this
regard Sec. 53-A of the T.P, Act 1882, provides that:-
1. The
transferred i.e., marketer has in agreement to sell for thought any stabile
property.
2. Such
agreement is in writing and signed by him.
3. The
contract provides for getting of the property before execution and registration
of sale deed.
4. Partly
performance of the contract, the vendor has place the customer in possession of the property in agreement to be sold .
5. The
customer beneath agreement being already in possession continues in possession
partly performance of the contract, as long as the customer has done some act
in furtherance of contract.
6. The
customer beneath agreement has performed or is willing to perform his part of
the contract.
Then
purchaser beneath agreement is entitled to shield his possession of stabile
property. Whereas agreement of sale is subsisting; someone who purchases the
property with notice of previous agreement of sale his right; is subject to
such previous agreement to sale.
It is to be
noted this profit is availed of solely by people who were place into possession
by virtue of a legal instrument. someone seeking protection of philosophy of
half performance must prove that he has partly performance of the contract has
taken possession of the property and just in case he was already in possession
he continues to be in such possession partly performance of the contract and
had done some act in furtherance of the contract. Additionally the customer
beneath agreement must show that he's willing to perform his part of the
contract. The only course for marketer in such cases is to visualize for
payment of balance thought.
The maximum
stamp duty payable on agreement to sell while not possession in state is
Rs.200/- and registration charges are Rs.1,000/-.
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