Bhimsenrao (Pensioner) 28 March 2014

Transfer of property

I have been allotted a flat in Bangalore worth Rs.1,87,000 by developer. We have entered into an agreement of sale on 1st of November 2012. I have made payments of EMIs up-to-date. Being a pensioner, I may not be able to make payment here onwards. I wish to execute a joint agreement with the developers by making my son a joint executioner of the proposed joint agreement.

In para 15(a) of the agreement already executed, it is stated that during the 24 months of the execution of this agreement or till the execution of the Sale Deed whichever is earlier, the purchaser shall not have power or authority to transfer or assign his right under this agreement to anyone.

As seen from the above term, I'm barred from transferring the said property to anyone else before the expiry of 2 years from the date of agreement. But, by my proposed joint agreement I'm not either selling or assigning the property to anyone else except my own son without transferring my right of ownership of the said property. This arrangement does not involve any element of sale or consideration.

Kindly enlighten me whether I can execute a joint agreement with the developer by including the name of my son as a co-owner. This arrangement will facilitate my son to raise bank loans for payment of remaining EMIs.

Please advice in the matter with relevant provisions of law and the documents required for the same. THANKING YOU

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4 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 ) 29 March 2014

This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings. Modifications and amendments to this agreement, including any exhibit or appendix, shall be enforceable only if they are in writing and are signed by both parties.

T. Kalaiselvan, Advocate (Advocate) 29 March 2014

You have clearly stated that the agreement restricts the buyer from creating any transaction on the property within the time stipulated, how do you say that you can claim relief by interpreting the conditions in your favor. Is there any clause for joint agreement in the sale agreement, if not how do you think you can claim any relief in that manner?, you should have thought about your financial standing at the time when you had entered in to such an agreement with the builder, however, if the builder agrees for the modification of the agreement and get it duly executed and may proceed, talk to the builder.

Bhimsenrao (Pensioner) 01 April 2014

Mr. T. Kalaiselvan,
I have gone through your advice but failed understand as to why I can't seek an amendment to the agreement that has been executed already. I knew my financial position at the time of entering into the agreement. The said property was thought to be resold to a prospective purchaser immediately after running out of my funds because the EMIs were paid out of capital gain account. Before the expiry of 2 years Lock-in period by entering into a private agreement by mutual understanding without any written agreement. Now the situation is changed as the builder is insisting to pay EMIs every month in Lakhs, as a result I thought of raising bank loan. But in view of my age i.e 75+, the bankers have denied loan. My intention of seeking an amendment to the agreement is to include the name of my son who is in his forties to whom bank loans can be sanctioned. The condition stipulated in the agreement was having a Lock-in period of 2 years for resale or reassignment. My proposed amendment does not involve any transfer or assignment of the property. The said amendment will not take away my ownership of the property.

Please clarify whether I can force the developer for the said amendment.

T. Kalaiselvan, Advocate (Advocate) 01 April 2014

You are interpreting the law in your favor by taking which is not proper as per law. Actually such things can be made alright through a consensus between the builder and you involving your son but if you want to adamantly paint legal color to this, the builder may withdraw quoting the strict terms and conditions, decide wisely.