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Sunday, 24 August 2014

AGREEMENTS FOR SELLING OF IMMOVABLE PROPERTY

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The pre demand of sale of stabile property is agreement to sell.The agreement to sell contains, terms of sale, thought, time limit, the entire description of property in agreement to be sold , terms of payment, redeeming possession and rights of each the parties to enforce the agreement, and penalty for not performing the contract. Generally, the purchaser pays some quantity as advance quantity, earnest to seller that is acknowledged by the vendor within the agreement. 

Importance of Sale Agreement:
The sale deed could be a document that contains general terms that are similar in most of the deeds.But the agreement to sell could be a specialized document that conceptualizes the terms of contract. The skill, knowledge, expertise of the advocate is mirrored in drafting the agreement to sell and therefore the clauses inserted to shield the interest of the customer, who has compound together with his cash.

There is a practice among several to avoid the sale agreements and to travel directly available deeds. This can be terribly risky. Agreement to sell is needed to avail the bank finance. Apart from availing finance while not a sale agreement no one is guaranteed to execute sale deed and convey the property, which might back out at the last moment. Although the customer had created all the arrangements for the thought quantity and revenue enhancement the seller might back out if he finds another customer for higher thought. Likewise, even the customer may additionally back out if he finds similar property for lesser thought. The sale agreements bind all the parties to perform the contract.

The process of sale is ruled by the provisions of Transfer of Property Act. If there's any conditions in agreement to sell that vary from the rights and obligations of the vendor, customer as elaborated in Transfer of Property Act, the terms that are in agreement in agreement to sell shall prevail over. If no conditions, are mentioned in agreement, the rights and obligations of marketer, purchaser as elaborated in Transfer of Property Act comes into force. Having paid the advance quantity, (or) earnest, can the customer have any charge, lien over the property for the amounts paid? The Transfer of Property Act governs the rights and obligations of vender and customer.

Rights of Agreement Holder:
In case of sale, the customer gets title and possession to the property as long as the transfer is affected in accordance with the law u/s fifty four of T.P. Act, managing sale of stabile property. Sec fifty four of T.P. Act states that – “Sale however created – such transfer within the case of tangible stabile property of the worth of 1 hundred rupees and upwards, --- is created solely be registered instrument.”So registration of the sale deed is necessary and solely thenceforth the customer gets title. It conjointly states that the agreement to sale itself doesn't produce any interest in or charge on such property

During this reasonably state of affairs if the vendor refuses to transfer the property beneath agreement to sale then the queries that arise for thought are:
-Whether customer beneath agreement to sale is entitled to solely damages alternatively stabile property as per agreement?
-If the customer beneath agreement to sale is in possession of stabile property will he be disposed of stabile property?

So far as 1st question worries Sec forty of Transfer of Property Act states that “Where a 3rd person is entitled to the good thing about associate obligation arising out of contract and annexed to the possession of stabile property however not amounting to interest in that or easement on it, such right or obligation is also implemented against a transferee with notice there from .

Ex: – “A Contracts to sell a house to ‘B’ whereas the contract continues to be operative he sells identical house to ‘C’ who has notice of the contract.  ‘B’ might enforce the contract against ‘C’ to identical extent as against ‘A’.  From this we discover that, the customer with notice of a previous contract available of identical property is within the eye of the law could be a trustee of the potential customer of previous agreement of the property thus purchased. Even u/s 91 of the Trusts Act, the title of the following customer with notice of the previous agreement is subject to the obligations created by the agreement to sell. So, the agreement holder might proceed against a customer of the property who had notice of contract prevailing.Sec 27(b) of the particular Relief Act entitles the customer beneath agreement to sell to compel consequent customer to execute a buying deal deed in his favor.  

In order to possess higher hold on the property in agreement to be customer the agreement to sell is also registered, and a paper notification is also free to apprize the overall public regarding the agreement. 

Purchaser in possession of the property:
For the second question as aforesaid earlier i.e., if the customer beneath agreement to sale is in possession of the property, will he be unfortunate of the stabile property?
In this regard Sec. 53-A of the T.P, Act 1882, provides that:-
1. The transferred i.e., marketer has in agreement to sell for thought any stabile property.      
2. Such agreement is in writing and signed by him.
3. The contract provides for getting of the property before execution and registration of sale deed.
4. Partly performance of the contract, the vendor has place the customer in possession of the property in agreement to be sold .
5. The customer beneath agreement being already in possession continues in possession partly performance of the contract, as long as the customer has done some act in furtherance of contract.
6. The customer beneath agreement has performed or is willing to perform his part of the contract.

Then purchaser beneath agreement is entitled to shield his possession of stabile property. Whereas agreement of sale is subsisting; someone who purchases the property with notice of previous agreement of sale his right; is subject to such previous agreement to sale.

It is to be noted this profit is availed of solely by people who were place into possession by virtue of a legal instrument. someone seeking protection of philosophy of half performance must prove that he has partly performance of the contract has taken possession of the property and just in case he was already in possession he continues to be in such possession partly performance of the contract and had done some act in furtherance of the contract. Additionally the customer beneath agreement must show that he's willing to perform his part of the contract. The only course for marketer in such cases is to visualize for payment of balance thought. 

The maximum stamp duty payable on agreement to sell while not possession in state is Rs.200/- and registration charges are Rs.1,000/-.

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