Bayana paid , property papers issue.
Viraj
(Querist) 20 November 2016
This query is : Resolved
I have recently paid bayana to the seller and i need a loan to buy that property.
So in bayana agreement it was mentioned that if my loan is rejected due to issue in any document i will get bayana money back .
So now there is a problem and one paper is missing , seller is not able to provide that paper and now only 1 week is remaining for last date of agreement .
I am sure that the seller cannot provide me the letter as he is not picking up my phone calls and property dealer is not able to arrange a meeting between us. I have been asking him for more than 10 days but no meeting yet .
Can you please guide me how i can make sure i get my bayana money back . What things i can do like SMS or calls so that if i have to go via legal way.
Also the seller needed some money in cash and rest in registry . In bayana only registry amount is mentioned and i paid bayana via cheque so its also mentioned .
Now due to demonetization i know i will not be able to provide amount in cash as i have all white money only .
Can you please guide me how can i get my money back with ease ?
Rajendra K Goyal
(Expert) 20 November 2016
Send registered letter to provide you required document before the date so that loan is sanctioned, if not supplied the deal would be cancelled and Bayana amount is to be returned.
Viraj
(Querist) 20 November 2016
Shall i send a normal letter with speed post it will work ?
Or send any kind of legal notice stuff ?
Rajendra K Goyal
(Expert) 20 November 2016
You can send normal letter through speed post / registered post.
Better send notice.
If letter to be sent it should contain situation / claims fully.
Viraj
(Querist) 20 November 2016
There was a lady X who was owner of house and she was married when she purchased the house .
Then she died and her property got transferred to her mom and sisters .
Her mom and sisters decided to give this flat to one of the sister.
seller purchased the house from sister .
Legal heir document of X is required since she was married while purchase time and while selling she is shown unmarried in documents .
Kumar Doab
(Expert) 20 November 2016
Which personal law applies to deceased lady say; Hindu?
Did she have her husband alive and children?
How did lady acquire the property say; self acquired or from her husband or from her parents?
If the lady was married but shown as unmarried then title might be defective.
Your immediate concern is with seller.
Write to seller and narrate all phone calls/SMS/emails etc with dates and also raise your concerns and demands.
If title is defective then you can decline to buy and demand our money back.
If loan is not approved then you can decline to buy and demand our money back.
Sudhir Kumar, Advocate
(Expert) 21 November 2016
you have still not clearly stated what document is not being provided.
You do not understand relevance of this fact.
This facts is relevant to know if the bayana has been accepted from you stating himself to be absolute owner while not being so.
Viraj
(Querist) 21 November 2016
@all
The seller has flat registered on his name as he purchased it .
They purchased it from meena (sister of x as explained above ) in 2013 .
X purchased the flat when she was married to ajay in 1995 .
Then she (x) got divorced from Ajay in 1999 .
There is no paper stating her legal heirs or survivors whether they have children or not.
Seller provided divorce paper few days back which just include divorce date and stating a divorce between them no description of any distribution of assets or do they have children or anything else just a date and brief of divorce.
So bank wants "Legal heirship certificate of X issued by concerned SDM".
Seller purchased the house 3 years back from this meena (2013)
(X died in 2005 and her property got transferred to her 2 sisters and mother and they all decided to transfer this property in 2007 to meena. )
And there is a AXIS bank and there is SBI both want this paper .
Seller is sticking to the line "I provided all documents and i cannot help it , you take care of this problem "
As there might be an issue in future if they have children and he/she claim for the property .
Its still a mystery that how did registrar issued flat registry if they do not have any such document with them or do they don't check such stuff ?
Rajendra K Goyal
(Expert) 22 November 2016
Bank is right in asking the legal heir certificate of deceased.
If a divorcee lady expires, property in her name would be inherited by her legal heirs including children from her previous marriage.
Kumar Doab
(Expert) 22 November 2016
You have posted that:
"Legal heir document of X is required since she was married while purchase time and while selling she is shown unmarried in documents ...........Also the seller needed some money in cash and rest in registry . In bayana only registry amount is mentioned and i paid bayana via cheque so its also mentioned...................Now due to demonetization i know i will not be able to provide amount in cash as i have all white money only . "
You have clarified which document is required.
You should have obtained legal opinion before entering into agreement.
The seller should have obtained legal opinion before entering into agreement and buying from his seller and obtained all documents.
Apparently there is defect in title.
If agreement signed by you is amount X and you have made part payment by cheque then rest can be paid by cheque/DD/cash.
The seller should agree to insert amount as in agreement in sale deed. If he does not then he is asking for trouble for both of you.
You can decline.
Since bank is right in demanding all documents establishing correctness of title and seller is not coming forward and also since loan is not getting approved, you can take a stand on various grounds.
Kumar Doab
(Expert) 22 November 2016
Is it the same query that you have posted at:
http://www.lawyersclubindia.com/experts/Notice-to-cancel-sale-agreement-or-bayana-agreement-623646.asp
Kumar Doab
(Expert) 22 November 2016
You could have continued in this thread.
Is it stated in agreement on Rs100/ stamp paper than previous agreement on plain paper with postal stamp stands cancelled.
If yes: In that case it can be construed that you have taken back Rs.50000/ in cash.
Was this postage stamp or revenue stamp?
Is interest payable by either party mentioned in it?
Viraj
(Querist) 22 November 2016
@Kumar Doab
That is related to same issue but query was different so i thought i can make a new thread for this .
My mistake . There is Rs 1 Revenue Stamp not postage stamp on that document .
There is no mention of previous agreement in new agreement . It is not written that its cancelled.
There is no mention of any interest
One more thing The agreement states that :
- if the first party(seller) is unable to complete the sale deal in time (30 nov) as specified then the first party (seller) is liable to pay the double amount of the earnest money and in case the seconds party (purchaser) fails to make the balance payment within stipulated period , then the earnest money/bayana amount shall be forfeited by the ---- > first party (seller) <---- .
Q1 : forfeited means give up . So it should be forfeited by "second party" right ? As second party has given bayana to first party and they will give up the money ? or is it correct ?
Its written in agreement that :
In case the loan amount shall not sanctioned due to incomplete previous sale documents , the first party will be bound to back/refund the bayana amount to the second party , immediately in respect of the above said property under sale .
Q2 : Since its 22 November today and last date of agreement is 30 november . If i get the document now . I will not have enough time to get the loan process done . So i can cancel the deal on this basis right ? Asking my earnest money back . (i do not want to extend the time because i cannot pay him cash now which he demanded and i can pay only via cheque and there only mention of registry amount in agreement which is 10 lakh less than actual deal , i cannot pay him 10 lakh cash now)
Q3 : What should i mention in notice i will send to seller ? something like : since its been more than a month we are asking for document and you have provided me/ not provided me by 22 november . There is no time as per agreement for us to apply for loan as it will take a month to complete the whole process again considering situation in banks due to demonetization . I am cancelling this deal and please return back the earnest money in provided bank by cheque or NEFT before 30 november . (as its written "refund the bayana amount to the second party , immediately ")
Frankly i do not want to extend the time provided for the agreement just want to cancel the deal. (cash issue - only pay by cheque)
Should i give him more time ?
Kumar Doab
(Expert) 22 November 2016
You may write to seller the requirement of the bank and attach a copy of communique from bank..............and mention the dates on which you have tried to approach him by phone/email/in person.................but he has not answered you.......and remind him the conditions in agreement and last date..........
Does dealer agree to state in your favor and that he can not arrange the meeting.............
Regret::: NO comments on your draft.
Let your own local counsel draft it.
Kumar Doab
(Expert) 22 November 2016
The property of X can not be transferred to her 2 sisters and mother just like that.
The 2 sisters and mother must have submitted some document of heir ship.
Was it not provided to you?
Viraj
(Querist) 22 November 2016
@Kumar Doab
We have not been provided any document of heirship by seller . There is just one Relinquishment deed which states that X has died and Her mother lata , meena (sister) , rita (sister) are the legal survivors of X .
Where death of Ms X the releasors and the releasee are become the co-owners of the said property.
And whereas now out of love and affection and without any monetary considerations , the releasors wish to relinquish, surrender the transfer their rights in whatsoever property in favor of th Releasee Mrs Meena (sister of X from whom property has been purchased by the current seller ).
But there is no legal heir certificate in documents.
Kumar Doab
(Expert) 22 November 2016
The owner/sharer can relinquish.
To record inheritance by successors/legal heirs the requisite documents as prescribed are to be submitted.
The Banks have pointed out the same.
If narration of legal heirs in relinquishment deed is sufficient the bank should be convinced.
Check with local counsel if narration in deed is sufficient, as per prevailing rules at your location.
Viraj
(Querist) 23 November 2016
Narration in relinquishment deed is not sufficient . I guess that is why 3 banks has asked for the same document from me .
Even there is conveyance deed in which X is the purchaser of the property and has made attorney (to her sister meena from which property has been purchased by the seller).
Even then the banks are saying that they need legal heir certificate because there might be a possibility that X has a child after divorce or before she died .
And that child can file a dispute against that attorney .
He gave me an example saying : lets assume X has a daughter and her husband died after death of X . Now she has no one and she can file dispute for the same property and something like this happened in the past.
So do you think its really necessary to get legal heirship certificate ?
Kumar Doab
(Expert) 23 November 2016
You have applied for loan and have linked the loan in agreement.
The lender shall decide as good money of the bank is at stake.
Banks have already communicated its stand to you.
We have explained.
Now it is your and bank's and seller's call.
Had you obtained proper legal opinion before entering into agreement, it would have been better.
Kumar Doab
(Expert) 23 November 2016
You have not responded to: 'Which personal law applies to deceased lady say; Hindu?'
You have posted supposedly;Hindu names.
Viraj
(Querist) 25 November 2016
Hindu law applies to the deceased lady .
Ya if i would have taken legal opinion before entering into agreement things would have been better . Bu the property dealer was so confident that he has been in this business from past 20 years and had checked the papers .
Kumar Doab
(Expert) 25 November 2016
Dear LCI author @ Viraj,
I have seen property dealers and even so called consultants buying property for themselves whose title is defective.
They are now themselves a harried lot.
Some of them bought structures on govt land (Canal, Road etc)..............
AVOID SUCH PRETENDERS EVEN IF THEY WRITE CONSULTANT WITH THEIR NAME LEAVE APART DEALERS..............
