vijayraj (Manager) 02 April 2012

Sale agreement not available

Dear Sir,

About to buy a third hand flat.....

Scenario:

Sale agreement entered between builder and first buyer is missing. Indenture of sale entered between builder and first buyer is available.
Sale agreement, sale deed between first buyer and second buyer are available.
I will be third buyer but my bank is insisting to track sale agreement that is missing or file FIR, advertise as it is lost.
Second buyer is still having loan and his bank did not ask for it when he took the loan.

Now the questions i have:

1. How important is the missing document for this sale and future sales

2. If we (second buyer and me) are not able to track first buyer (moved out of the country long back) and without knowing whether it is lost or available, can the second buyer file FIR, advertise as it is lost?

3. If myself as third buyer go get a loan with same bank where second buyer has got the loan, will i be having a clear title and able to sell the flat in future if required without any issues?

Please help with your expertise. Thanks

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3 Replies

sunil arya (Advocate) 02 April 2012

Mr. Vijayraj,

At first, post 11th of October, 2011 [ Suraj lamps judgment] a registered sale deed (as against agreement to sell) passing clear title in the property to you is fundamental and rudimentary for legal transfer. Now coming on to the title of second buyer; In case the agreement transferring property in his favor from 1st buyer is lost, this must be either advertised or FIR filed in respect of it. This advise assumes that second buyer is in possession of the property at present. When this is done and no objection comes after the adverisement, proceed for a good sale. Finally, do take pain to consult your trusted lawyer in person.

vijayraj (Manager) 02 April 2012

Mr. Sunil Arya,
Thanks for your reply. To clarify the exact situation

lets say w is builder, x is 1st buyer, y is 2nd buyer and me third buyer

Agreement of sale from x (1st) to y (2nd) is very much available.
Sale and construction agreement from w (builder) to x is what is not available (even at the time of sale from x to y).

Now is y (2nd) having clear title of the flat or not? if i buy from y even without sale agreement between w (builder) and x (1st), is it valid?
In other words, Can i buy the flat from y even if there is no FIR, advertisement etc

sunil arya (Advocate) 02 April 2012

Unhesitatingly, I am afraid to say Mr. Vijayraj that ultimate transfer of the subject property to you would be a risky transaction where past transfers have taken place on agreements to sale simpliciter. Anyhow, i should clarify that what is to be advertised is that the present seller is in possession of the property for a good period of time without any hindrance and obstructions from anybody and now wishes to sell it to you and hereby invites objection of the public, if any within a prescribed timeframe. A parallel course would be to check the Sub-Registrar's records to ascertain the title transfer to the present seller. If after this, everything goes in your favor by god's grace, u have a clear title in your favor by, not to repeat, a registered sale deed. Just to add, details of FIR would find mention in sale deed between you and seller to pass a good title unto you. Good luck.

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