Demand by the Respondent without preferring appeal.
somnathsingh
(Querist) 30 November 2010
This query is : Resolved
An Agreement of Sale is entered by father and son in favour of tenant already in possession. Before sale deed is executed by them, son got issued legal notice to the tenant (agreement holder) expressing sole ownership by virtue of will deed executed by his mother (original land lady now expired) in his favour.
The tenant filed “Suit for Specific Performance” making Father and Son as Defendant 1 and Defendant 2. The two sisters of D! got implied as D3 and D4 and challenging the will.
Over ruling the above documents the Original Suit was decreed in favour of Plaintiff (tenant) against D1 and D2 for executing the Sale deed for 50% of the suit property. Confirming balance 50% ownership to sisters by invalidating the alleged will. The sisters are not willing to sell the property.
Aggrieved by the Specific Performance decree, brother preferred an appeal and it is pending.
Is the (Respondent) Tenant can demand to execute sale deed of the sisters shares by giving considerations.
If the appeal is pronounced in favour of appellant confirming sole ownership in this case can Tenant demand to execute sale deed of the remaining 50% unregistered belonging to sisters after this share was own by the brother in Appeal.
What will be the situation of unregistered portion suit property, if the brother states that he will execute the sale deed for the entire property in the lower court pleadings and wins in appeal.
Since the tenant has not preferred any appeal against the lower court decree. Is he eligible to put the abovementioned demands in the appellate court. Please advise.
Regards
Somnath
sachin sethi
(Expert) 30 November 2010
Dear Mr. Somnathsingh,, ur querry is a bit confusing,,however few things can be replied as follows:-
so far the raising of demands by tenants is concerned he should prefer a cross appeal within 30 days of service of the notice of appeal to him and there he can raise any demand on the basis of his pleadings nad issues framed thereupon in the lower court..
regarding your querry about unregistered portion of the suit property is concerned,,i am bit confused that when son has preferred appeal against the decree of Spe. Perfm. then how he pleaded in the LC that he will get executed the sale deed in respect of entire suit property.. if it is the position and pleading of son in actual then the same should have been used as an admission against him in the lower court itself..so no question arises of him being a winner in appeal on such pleadings..
remaining 50% of unregistered property of sister can return back to the son if appellate court gives finding to the effect of will being genuine,,if the entire property has been stated to be of son in the will..
however you are further advised to go through the concept of ostensible owner in the Transfer of Property Act as well as your opponent can also take recaouse to the amendment of 2001 in section 17(1)(a) of th Registration Act, also read with section 53-a of the T.P. act...so be prepared for that also..
sachin sethi
(Expert) 30 November 2010
apart from the above the trial court has also fell in error while deciding the suit,, as property of a lady can not be given to her husband especially when the will has been invalidated...there should have been three shares of the property amongst son and both the daughters...and in such a situation tenant can only claim 1/3rd share belonging to son...if the will in question is being validated then only tenant can seek the registration of sale deed in respect of entire property,,being property reverted back to son and then son is bound to make good the loss of tenant in view of the judgment pronounced by Hon'ble Supreme Court in case titled as Jote Singh (dead) through LRs versus Ram Das Mahto and others reported in Shimla Law Journal 1997 vol.2 page 621...
Raj Kumar Makkad
(Expert) 30 November 2010
Tenant has got no right to claim purchase of the remaining 50% which rests with the sisters of his seller. If his appeal is accepted and he is declared owner of entire share then also there was no agreement of entire share with the defendant no. 1 and it was for only 50% as claimed by him at the time of agreement so buyer can have no claim about rest of the portion and that shall remain with the seller/appellant.
