Frequently Asked Questions On Sale Deed

QUERY #1

Dear Lawyer, I need your advice

I entered into selling my agricultural land on Sep 01 2023 (3 months period). The buyer paid me 50% of the money in advance and took the responsibility of doing the PODI process within the said period and complete the transaction within Dec 01 2023.

The PODI process got delayed by four months, hence my objective of selling the land failed and I had to source a cash loan from my friends for that purpose.

Now I want to save the property for future use and want to refund the full advance amount to the buyer along with interest and PODI charges.

I have already sent a legal notice along with a cheque of the advance money paid by the buyer, stating inordinate delay in completing the transaction which led to the failure of my objective of selling the land.

The buyer is not accepting my terms and wants my property. But I do not want to sell it.

Please Help.

Thanks in advance.

Pradeep

ANSWER

The short answer to your question is that YES, you can terminate the sale deed.

A sale deed is a legal document that is used to transfer the ownership of a property from the seller to the buyer. As per Specific Relief Act, 1963, a sale deed can be canceled within a timespan of three years. The seller reserves the right to cancel the deed after initial registration if the buyer has failed to complete the financial transaction, and thus the terms of the sale. The plaintiff may file a civil suit at the relevant court of jurisdiction seeking the cancellation of the said sale deed. As per the Indian Registration Act 1908, the party responsible for the cancellation of the deed may have to compensate the opposite party for the losses incurred by them due to the cancellation, depending on the factors of the case.

In this case it is important to understand that the burden of proof lies on the plaintiff to show the reason due to which they have initiated said suit and desires cancellation of the sale deed.

There are two reasons that I can see for the cancellation of the deed:

• The buyer has failed to complete the financial transaction and has thus violated the terms of the deed as they have only yet paid fifty percent of the total amount.
• The buyer has delayed the transaction by a considerable amount of time from the agreed date which has resulted in the plaintiff suffering loss (Having to source cash loan from friends).

Also, the fact that you have sent a legal notice to the buyer apprising them of the current situation and included a cheque for the advance money paid and your willingness to pay the interest amount should help you in court in getting a decision in your favour. 

I hope this helps. Thank you for your time and patience!

QUERY #2

I have purchased an agricultural land from a person of general caste. As someone belonging to SC, can I sell this plot a person of a general caste? Can I hide my caste during the sale of the agricultural land to a person of general caste?

ANSWER

The short answer for your question is YES. You may sell the property to an individual of any caste  and you do not have to disclose your caste to the buyer.

A sale deed is a legal document that is drafted by a legal draftsman for the purpose of purchase or sale of an immovable property. There are certain essentials that must be mentioned in the sale deed without which it is incomplete and holds no legal value. 

They are as follows:

• Name of the deed
• Parties to the sale deed
• Description of the property
• Agreement for sale
• Sale consideration clause
• Advance payment 
• Mode of payment, etc.

Here, the only clause that concerns itself with information about the seller is the ‘Parties to the sale deed’. This clause covers the following aspects:

• The name of the parties
• Their age
• Their addresses
• The competency of the parties to enter into this sale/purchase
• That the parties sign the deed with bona-fide intention.

Hence, nowhere is it mentioned that the caste of the buyer or seller must be disclosed to the other party. In fact, the caste of the parties hold no value in the transaction.

As long as you have rightfully purchased the land and were not allotted the said land by the government, where you would not have the ownership rights, you may sell the property to any individual you choose.

I hope this helps. Thank you for your time and patience!

QUERY #3

I purchased two flats from the builder in a newly constructed apartment building. Both flats were registered under a single deed at Kolkata. I am the sole owner of the two flats.

I now want to sell the two flats separately to two buyers. How do I go about it? Both flats will be sold in a gap of three months. Is there any step I need to take with respect to my current combined sale deed of two flats before I go ahead with the sale of the first of the two flats? Thanks!

ANSWER

The short answer to your question would be NO, you do not have to take any extra step before you go ahead with their sale. 

According to the Apartment Ownership Act, 1989, the buyer of an apartment or flat has complete ownership rights over the said property. They have the right to demand all legal documents concerning the property from the seller/developer, the right to decide who may enter their property, the right to enjoy their property provided they do not infringe the rights of others in the process, the right to rent out their property and expel their tenants upon default, and also the right to sell their property. 

It must also be noted that the owner of the property also thus owns a part of the land upon which the said property stands, that is the right to own an undivided share of land (UDS).

Thus the owner of the property does not have to worry about any extra legal procedures before selling their flat/apartment.

I hope this helps. Thank you for your time and patience!

QUERY #4

Hi I have a penthouse with terrace. When I purchased the flat in 2010 from the builder, the terrace was marked in the agreement to be exclusively used by me and no other members of the society could any raise objection to it. But the terrace is not included in total square feet. Even though on the registered agreement builder has marked the terrace which can only be accessed from our flat but in BMC agreement this is marked as it can be acessed from common passage.  Recently after 14 years of possession of the flat and terrace I plan to sell the flat. 

Can the BMC take objection and claim the terrace? All the electric points of the said terrace are from my flat. Even all maintenance and repair for the same have been done by me.

ANSWER

The short answer for your question will be NO, the society cannot raise any objection and claim the said terrace.

As long as the registered sale deed that granted you the ownership of the said property specifically mentions your ownership over the terrace, the Municipal Corporation cannot raise any objection if you may choose to sell the property.

It must be noted that if by any chance the BMC owns the terrace, then you cannot sell it and cannot claim ownership over it through the law of adverse possession as you will have to reside on the land for over thirty years to claim the same.

This is because although to claim the law of adverse possession over a private land you need to reside in it for only 12 years, but to claim the same for government land, the time period is thirty years.

I hope this helps. Thank you for your time and patience!

QUERY #5

I had sold 3 plots of land from my own plot after creating a common passage with user and easement rights for the 3 plot owners to use as their access passage to their respective plots. So together with them I have been using this common passage for 41 yrs now. But now suddenly the question has arised that since they have the user and easement rights to this common passage plot we the initial owners cannot use it even though our registered deed mentions that we also have ownership, users and easement right to the same common passage. 

Now my question is does the initial owner of the plot lose his or her easement rights after making a private plot that he/she owned initially into a common passage? Can the other owners stop him/her from using it after 41 yrs of usage?  What are the legal proceedings to prevent this harassment as the neighbors have blocked an entrance gate for our use with brick barricades?

ANSWER

The short answer to your question would be NO, you still have the ownership right over the said common passage.

Before going into the explanation on why you may still have ownership right over the common way, let us briefly understand what easement means in the Indian legal system.

An easement is defined as a right possessed by the owner or occupier of a property to do or continue to do something in connection with another person’s land. This right is most commonly used for granting the owners of certain properties access to a common pathway, but it could also be used to discharge rainwater on another person’s property or for the right to have uninterrupted access to sunlight on a property.

There are certain essentials that must be met to grant easement rights:

• There must be two separate properties: A dominant property and servient property, wherein the servient property is land upon which the easement right is imposed upon.
• There must be two separate owners: The owner of the dominant property and the owner of the servient property must be different. A single owner cannot hold both the properties and grant themselves the easement rights over the said property.
• The right should be granted for the purpose of beneficial enjoyment to the owner of the dominant property.
• Easements can only exist between adjacent properties.

Coming to our current situation, the three properties which were sold by you are now the dominant properties while the common property is the servient property. Here it must be noted that the dominant owner has no right over the servient owner and thus cannot bind them to perform any action. Since you own the servient property, the dominant owners cannot remove your ownership rights over the said property and thus cannot prevent you from using it.

It must be noted that even though you were using the said property for 41 years, in a situation where you were not the owner of the property, you would not be able to claim ownership of the same through the law of adverse possession, as the law of adverse possession necessitates that the individual claiming the adverse possession must also be the only one using it.

Therefore, as long as you are the owner of the servient property, .i.e. the common passage, the other three owners cannot prevent you from using it.

I hope this helps. Thank you for your time and patience!