Sec 53a of transfer of property act 1882
yash007
(Querist) 29 May 2012
This query is : Resolved
RAMESH SELLS HIS HOUSE CONSISTING FOUR ROOMS TO SURESH FOR 500000/-. SURESH PAID 50% I.E. 250000/- AND TAKES POSSESSION OF TWO ROOMS AND PROMISE TO PAY REST DUES, THE SALE DEED WAS NOT REGISTERED, AFTER FOUR MONTHS RAMESH SELLS THE SAME PROPERTY TO MAHESH FOR 750000/- , MAHESH
PAID THE CONSIDERATION IN GOOD FAITH WITHOUT KNOWING PRIOR PURCHASER .
WHO IS ENTITLED TO ALL THE FOUR PROPERTY?
Adv.R.P.Chugh
(Expert) 29 May 2012
Though this query reeks of academics. In my opinion Suresh is entitled to the property for following reasons :-
1) By virtue of doctrine of part performance - he having entered into a contract - and is ready and willing to perform his part of the contract - his possession is protected by the law - He should by way of abundant caution institute a suit for Specific Performance to get Sale Deed executed.
2) Protection of Part performance only applies against original transferor and not subsequent transferee for consideration who gets property in good faith without knowledge of previous transfer.
In my view this exception won't apply and Mahesh won't be entitled for the simple reason - that :-
a) No Good faith; (good faith means due care and caution - buying a property which is in possession of somebody else holding under inchoate sale documents - negatives any care and caution - and shows recklessness)
b) He can be attributed with the constructive knowledge that Suresh had interest because Suresh was in possession and possession is the nine points of ownership.
kuldeep kumar
(Expert) 29 May 2012
no body is entitled.a suit for specific performance will be brought.later sale deed will take place cause it is regd and earlier one is not regd so no ques of notice as well.
kuldeep kumar
(Expert) 29 May 2012
how can he be attrubuted with knowledge.mahesh went registrar office and found no entry therein giving even a hint of earlier transaction.i need my views filtered if i m wrong.
Adv.R.P.Chugh
(Expert) 29 May 2012
This is my response to learned Mr.Kumar :-
i) Suresh is adequately protected under the doctrine of part performance, and is therefore entitled to continue in possession. Prior in time better in law is an adage that is followed consistently.
2) When you can a person be said to have brought a property bona fide and without knowledge ? What would you do as a reasonable buyer if you buy real estate ?
Does it not include visiting the property personally and checking who's in possession and in what capacity ?????
Mere going to the registration office - won't be sufficient to prove good faith i.e due care and caution.
Though he may not have had ACTUAL notice - but Constructive Notice is always there - because he ought to have known the same with due dilgence, and what a person ought to have done is deemed to have done. Read S.3 (perhaps) to the Transfer of Property Act. He can be safely attributed with the knowledge that Suresh had some subsisting interest.
Hence Suresh's claim stands valid according to me.
Guest
(Expert) 29 May 2012
I entirely agree with learned Chugh.
kuldeep kumar
(Expert) 29 May 2012
to avoid such constructive notice compulsory regn of property is made..possession given or not has been in the mind of legislature while enacting 2001 amendment in regn act.i put a factual position here suppose the person named in authors query remains in possession for 3 years without filing any suit.after 3 year who will have title? later transferee will have title.and this remedy of specific performance is also taken away by not registring the agree to sale.no unregd document will effect immovable properties should be given liberal construction.equally innocent is he who paid 750000 although had no such constructive notice.a contract of sale by itself confers no title also makes me think negative.
dear chug i will put same views in djs if same problem is asked. i difer little here for simple reason that agree to sale should be regd.
Adv.R.P.Chugh
(Expert) 29 May 2012
What if the the consideration that flowed from latter buyer is fictitious and is made with a view to defeat the rights of first Buyer.
I understand that law after 2001 - makes registration of Agreement to Sell mandatory even for the purposes of Part Performance but that fails to deter me to reach the conclusion that I've reached.
As regards the deadlock situation that you talk about if time for SP runs out and still part performance is claimed ....I am afraid though I think in such a situation the person is not entitled to part performance for the simple reason that by not filing for SP he has shown his disinclination towards completion of sale - and things cannot remain in the deadlock situation where a person who does not have title and who cannot possibly get title (since remedy for SP is time barred) is allowed to remain in possession indefinately. But there is a great conflict of decision on this - Would really love if Ld Mr.Kumar could clear the airs on this ?
Adv.R.P.Chugh
(Expert) 29 May 2012
What if the the consideration that flowed from latter buyer is fictitious and is made with a view to defeat the rights of first Buyer.
I understand that law after 2001 - makes registration of Agreement to Sell mandatory even for the purposes of Part Performance but that fails to deter me to reach the conclusion that I've reached.
As regards the deadlock situation that you talk about if time for SP runs out and still part performance is claimed ....I am afraid though I think in such a situation the person is not entitled to part performance for the simple reason that by not filing for SP he has shown his disinclination towards completion of sale - and things cannot remain in the deadlock situation where a person who does not have title and who cannot possibly get title (since remedy for SP is time barred) is allowed to remain in possession indefinately. But there is a great conflict of decision on this - Would really love if Ld Mr.Kumar could clear the airs on this ?
Shonee Kapoor
(Expert) 30 May 2012
Academic Query.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
