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Samir N (General Queries) (Business)     24 June 2021

Getting sale deed rendered null and void

I had purchased part of a property. While I was away overseas for many years, the landlord sold another portion of the property to include part of my own property. That was clearly a fraud. Later they filed a deed of rectification to rectify the situation when the fraud was caught but no notice was sent to me  and I was not made a party to the deed of rectification.  Now they are complaining that the deed of rectification itself was wrong and they want to re-rectify the rectification deed. All this I realized only now.

CAN I FILE A SUIT TO RENDER THEIR SALE DEED NULL AND VOID AB INITIO AS IT WAS FRAUDULENT TO BEGIN WITH? Or does the deed of rectification itself rectified the fraud and there is no longer a possibility to render it null and void? My argument is that merely because a stolen good is returned, does not nullify the crime itself.



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 6 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     24 June 2021

OBtain Encumbrance certificate from the local sub-registrar office & check your documents.  An Encumbrance Certificate or (EC) is a certificate of assurance that the concerned property is free from any legal or financial liability such as a mortgage or pending loan. (a) Need for an Encumbrance Certificate. 1. It is a mandatory document used in property transactions as evidence of free title/ownership.

Samir N (General Queries) (Business)     24 June 2021

@Rachakonda, Thank you for your reply but nil encumbrance has nothing to do with my question. 

Shubham Bhardwaj (Advocate)     24 June 2021

Dear Mr Samir, 

With regard to title of your part of property, note the following:-

Before answering the query, please note that I am assuming that the fact as mentioned by you are correct i.e. someone has sold your part of the land along with his and that he filed a rectification deed for the same.

1. Talk to the concerned person and see if he has really filed a deed of rectification and what is the status of the rectification deed. In my opinion it will be rejected because a deed of rectification cannot led to change in interests of parties. In the present case the land measurement in the sale deed will have to be rectified, as a result the stamp duty will be altered. Further, the consideration will also change if the consideration was charged per unit basis (whatever unit is used at your location. These are fundamental mistakes and not just clerical mistakes. 

2. Have a discussion with the concerned person and if he admits, file a rectification suit under Specific Relief Act, 1963 and get the same deed corrected. As per my opinion, you become the plaintiff and seller Defendant No 1 and buyer Defendant No 2. 

3. If he is not cooperating, then file suit for declaring the sale deed void. Same parties as above. Further also file Complaint in police station for registration of FIR.

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh.

 

Disclaimer:- Opinion is only for guidance.  

 

1 Like

Samir N (General Queries) (Business)     24 June 2021

Mr. Bhardwaj,

Thank you for a good and informative answer.

As you seem to be knowledgeable in this area, I would like to take the time to provide more specific info:

Original owner owned 30000 sq. mtrs land. He first sold me 10000 sq. mtrs. Then he sold 8000 sq. mtrs to another party. But in the plan attached to the sale deed, he sold 1000 sq. mtrs portion of my land too as part of the 8000 sq. mtrs!!!  Later the second buyer filed a deed of rectification but instead of rectifying down to 7000, he rectified it to 6000. Second buyer also partitioned his land based on 6000 only. Now there is a 1000 sq. mtrs strip left between my plot and the second buyer's plot.  This has led to confusion and concern as there is no access to the 1000 sq. mtrs. Whose land is it now? All this happened 10 years back but the details of the rectification deed and sale deed came to my knowledge only now when I decided to partition my land from the original owner's as he still retains some portion. 

Under what section of Specific Relief Act will I be able to seek relief? The owner is certainly not going to part with the 1000 sq. mtrs. The second buyer has already rectified and partitioned so surely he cannot seek ownership of this land.  HOW DO I SUE THE ORIGINAL OWNER? ON WHAT BASIS?  I AM PREJUDICED BECAUSE THE STRIP LEFT HAS NO ACCESS AND HE WILL SEEK ACCESS FROM MY PLOT OR THE SECOND BUYER'S PLOT. WE WILL BE OBLIGATED TO PROVIDE ACCESS TO HIM AS HIS STRIP IS LANDLOCKED. 

 

Shubham Bhardwaj (Advocate)     25 June 2021

Dear Mr Samir, 

There seems to be some confusion with regard to land measurements. The owner had 30000. Out of that he sold 10000 to you and 8000 to second buyer. Now second buyer files rectification and makes his share 6000 from 8000. This means that he lost 2000 sq mtrs. So after this all this should be the position of lands:-

Owner : 12000                 (30000-10000-8000)

You :- 9000                      (10000-1000)

Second owner :- 6000     (8000-2000)

Detached: 2000               (8000-6000)

Further, on reading the facts I get a feeling that there are some other facts which are not known. So you must enquire for the true facts before taking any action. 

However moving on with the query on principle:-

The basic facts which I could understand is this:-

1. You lost 1000 sq mtr of your share in land because that part of included in the second buyer's plan in the sale deed. 

2. The second buyer has also lost 2000 sq mtr due to faulty rectification deed filed by him. Because the cause to file rectification was not that he got more land from the original owner but that he got 1000 sq mtrs wrong share i.e. your share. This is the reason I am saying the rectification deed to be faulty because as I have said earlier the rectification deed cannot alter rights of a deed. The purpose of rectification deed is just to correct clerical mistakes. Mistakes of fundamental nature affecting rights are done by filing rectification suit in court of civil judge. 

3.  The part which has now got detached i.e. 2000 sq mtrs or 1000 sq mtrs which ever it may be. 

As per my understanding this is what you can do:-

Cooperating Parties:-

All the 3 parties should sit down and discuss the issue. Since the entire matter is document based, nobody can lie about any fact. Once consensus is reached,  draft a memorandum of Understanding incorporating the facts of the matter and that there has been a mistake and for rectification of such mistake a suit is being proposed and shall be filed either by the owner or the buyer. Then pursuant to the MOU either the second buyer or the owner can file a suit for rectification of second sale deed u/s 26 of the Specific Relief Act 1963.

Non cooperating Parties:-

If after discussion for reasonable time and waiting for their response, no positive action is done by the owner or the second buyer then you have no other option but to go ahead with the suit for declaration to get the second sale deed declared as invalid and void under Section 34 of the Specific Relief Act, 1963. Along with the suit also file application under Order 39 CPC praying for an order of injunction against the second buyer from alienating or otherwise disposing of the property in question. 

Further also file police complaint against the owner as he has sold your land to a third party very well knowing that he sold the same land to you first. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court

Punjab & Haryana High Court, at Chandigarh

 

Disclaimer:- The opinion is only for guidance. 

 

 

 

 

 

 

1 Like

Samir N (General Queries) (Business)     25 June 2021

Dear Mr. Bhardwaj,

Excellent advice. Thanks a lot for taking the time to offer it.

 

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