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Sale deed

Querist : Anonymous (Querist) 28 October 2020 This query is : Resolved 
Can we insert a clause in the sale deed that the buyer shall get possession of the property after receiving full and final consideration amount of the property even after registration of sale deed.
This is because the buyer in the sale deed is giving half consideration at the time of agreement and balance payment he will be paying in the form of Post dated cheques of which we are not sure.
and even if the possession is hand over on sale deed registration and the cheques get bounced then we will loose the property and then have to go for litigation.
please guide .
SHIRISH PAWAR, 7738990900 (Expert) 28 October 2020

Yes, you can insert a clause stating that you will give possession of the property after the sale deed registration and a full and final payment of the flat.
Rajendra K Goyal (Expert) 28 October 2020
There is no reason to accept any post dated cheque in lieu of payment in such transection. Time for final payment and registration may be extended.

Advocate Bhartesh goyal (Expert) 28 October 2020
You should not execute sale deed until and unless you receive full sale consideration.
kavksatyanarayana (Expert) 28 October 2020
In the facts given in the query, you shall postpone the transaction till the consideration is paid.
Dr J C Vashista (Expert) 29 October 2020
Sale deed has to executed only and only after receipt / payment of full and final consideration.
K Rajasekharan (Expert) 29 October 2020
When you execute a ‘sale deed' you should transfer the possession and ownership of the property to the buyer. It cannot be a conditional document but must be an absolute one. It should give the buyer the rights and interests associated with the ownership of the property. Quite naturally it would, on the other hand, end your rights and interests in it as its owner.

If you intend to keep the possession of the property for want of payment of a portion of the sale amount to you and want to transfer the possession and ownership of the property only at a future date on completion of payment, then the document in which you propose to set out such terms is only a ‘sale agreement’.

So what you can do is that you can collect the part payment as advance, execute a ‘sale agreement’ and keep the possession of the land till he pays the remaining amount. Later he can, in turn, get the ownership, including possession, transferred from you by paying you the remaining amount, and get the sale deed executed and other associated formalities performed by you for completion of the transfer.
P. Venu (Expert) 29 October 2020
Even otherwise, you have the legal remedies available if the cheque is dishounered.
Querist : Anonymous (Querist) 29 October 2020
Thank you so much Sir(s). it will be better to go now for agreement to sale and after some months to execute sale deed for remaining payment.
J K Agrawal (Expert) 29 October 2020
Well advised by Mr Rajshekharan. You should execute a registered sale agreement and then after a sale deed. (In Rajasthan the stamp duty paid at time of sale agreement is reimursable at time of sale deed but in your state the position may be different)

Dear Ld advocates we should discuss the point for sake of knowledge.As far me, the legal position is as under

1. Sale may be conditional (No any restriction that it gives absolute rights).
2 If payment not made even then the sale is complete and the seller only file a suit for recovery of money. The definition of Sale in TP act is clear in this regard.
3 It makes no difference that possession is handed over or not or complete payment made or not. As soon as sale deed. (the property transfers by execution of deed). Even without payment the buyer can seek possession of property and it is his right..
4 the incorporation of conditions in sale deed having no value in eyes of law but it provide estoppel against parties. These conditions can be used to determine the quantom of compensation but can not set aside sale or make it void unless it is a void agreement as per law of Contract.
5 Breach of a condition of sale deed is equal to breach of contract. Just think what is consequence of breach of contract? it is only s 72, 73 and 74 of the Contract Act and the remedy is very poor confined to damages only.
6 In case of breach of term of sale deed the other remedy is to go under specific relief act and I thing it is again not an easy job to get sale deed set aside.
7 Mr Shirish Pawar if right in his answer and one can retain possession. In case of non payment he can not take forcible possession and the court will give possession order only after due consideration paid.
It is highly welcomed to rectify my thoughts and enlighten all of us.
krishna mohan (Expert) 02 November 2020
Agreement for Sale with partial money paid as advance with stipulation of time mutually agreed for Sale Deed is better option than to any other mode. I agree with the views of Mr.Rajasekaran.

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