Conditional sale putting a clause in the sale deed .
ASIM
(Querist) 25 December 2017
This query is : Resolved
Respected Sir,
One person sold to another person a self contained flat in the same building wherein the owner also resides in another flat the land comprising the building being also originally belonged to the owner .. The seller had put one condition that in case of the buyer selling the same have to approach first to the seller for buy back the same. Now after demise of the buyer his heir wants to sell the same and approached the original seller but the person neither giving clearance for sale to any third party nor taking any positive step to buy it under market price and unnecessary delaying the deal .
Sir, is the above said clause in the sale deed valid or void as per sec. 10 of TPA, 1882 .
Please help me with your valuable inference .
Regards ,
Asim Kumar Das .
Guest
(Expert) 25 December 2017
Just put an News Paper advt stating that particular person to buy back the property mentioning the stipulated time and your price failing which you are at liberty to dispose it to any one. The same could be stated and served as a legal notice to that particular person.Once the time limit mentioned expires legally you would have no restrictions to dispose your property to any one. Discuss with your advocate. Normally such complicated clauses to be avoided .These are all the reasons why a Legal opinion of an Advocate is mandatory before executing any Deeds.
Kumar Doab
(Expert) 25 December 2017
'Buyer Beware' applies to property deals.
It shall be appropriate to get proper legal opinion from a very able local senior counsel of unshakable repute and integrity specializing in revenue/property/civil/DRT matters before signing or making payment.
This may cost some FEE but can defend long term interest and hard earned monies.
Kumar Doab
(Expert) 25 December 2017
Why should anyone agree to such T&C and more so when full consideration is being paid?
Preferably at under expert advise of a very able senior LOCAL counsel that has seen all docs and examined all instances and inputs....
R.Ramachandran
(Expert) 26 December 2017
Send a registered post to the original seller, stating that the buyer (LRs) proposes to sell the flat. In terms of clause ... of the original sale deed, the same is being first offered to the original seller. In case the original seller is ready and willing to buy the flat, please indicate in writing within..... days (give reasonable time say 21 says or so) of receipt of this letter, failing which please note that it would be construed that the original seller is not interested in buying the flat, and the buyer would be free to sell the flat to any third party. Keep the receipt of the registered post in tact, also keep the registered post tracking record evidencing the delivery of the letter to the seller in tact, for future use.
P. Venu
(Expert) 26 December 2017
What are the reasons, if any, for executing the sale deed conditionally?
Kumar Doab
(Expert) 26 December 2017
With this information in posts approach a very able senior LOCAL counsel of unshakable repute and integrity specializing in such/civil matters having successful track record and show all docs on record, inputs on instances and proceed under expert advice of your LOCAL counsel.
The other party that is not responding on record must be having IT’s ill aim up IT’s sleeves.
Your counsel can update you on how to tackle the counter (if any and IT might be) successfully and defend your interest.
Sankaranarayanan
(Expert) 26 December 2017
I do stand with the point raised by learned friend mr venu , why the purchaser accepted the condition ?if any reason? , then approach a local expert lawyer and act accordingly ..
J K Agrawal
(Expert) 29 December 2017
The conditions or limitation on alienation may be either absolute or partial.
Absolute restraints are declared void under Section 10, however partial restraints may be allowed.
Whether a condition amounts to a total or partial depends upon the substance, i.e., the real effect of the condition and not the form of words laying down the condition. An absolute restraint is one that takes away the power of alienation completely or substantially, whereas, partial restraint is one that imposes some restriction on the power of alienation but the tram is substantially free to alienate property in various ways.
In Renand v. Tourangeaon, (1867). LR 2 PC 4, it was held that a condition that transferee shall not transfer the property for a period of twenty years is an absolute restriction and thus void. If it were a condition that transferee shall not transfer the property for a period of 3 years, it would be a partial restraint and thus valid.
In Rosher v. Rosher, (1884) 26 Ch D 801, a person A made a gift of house to B with a condition that if B sold during the life-time of A’s wife, she should have an option to purchase it for Its. 10,000. The value of the house was Rs. 10,00,000. This was held to be a effect an absolute restraint and void.
