Value of the Written Agreement
Goutam
(Querist) 19 March 2011
This query is : Resolved
1. An agreement was executed by two parties on a five Rs. stamp paper vide dated 1-12-1999. This agreement was hand written but not typed. It was also attested by Notary Public. It was signed by both the parties and witnesses including one legal heir of Ist party.
2. In this agreement both parties agreed to exchange their houses and took their agreed possessions at that time. They executed power of Attorney in favor of each other and also promised to execute Sale Deed to each other. But at that time the Sale Deed was not executed by them due to closure of Sale Deed of that area by the Municipal Committee. The Sale Deed of that area is also closed till now. The 1st party also gave 70000/ to the 2nd party, in lieu of that possession.
3. In this agreement it was also mentioned that the Legal Heirs (Representative) will not take any Legal action relating to the exchange of properties with each other.
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4. One of the parties to the agreement is no more.
5. But the legal heirs of the deceased are not ready to execute the above mentioned agreement while the second party is agreed to.
6. Now my queries are:-
I.Whether the Legal Heirs of deceased party are duty bound by the above mentioned agreement.
II. Whether the party to the second part (remaining party) can continue to have possession of the same and execute the sale deed of exchanged house in his name.
adv. rajeev ( rajoo )
(Expert) 20 March 2011
When properties are exchanged it amounts to transfer, so regd., document is necessary.
Kirti Kar Tripathi
(Expert) 20 March 2011
For transfer of immovable property, registered deed is mandatory. Notarial document will not serve the purpose.
Goutam
(Querist) 20 March 2011
Sir,
Plz also clear these queries.
The main fact is that at the time of agreement Registration process of Immovable property was closed. How we could a registered deed
If we file a suit agaginst ohter(1st) party. Then this Notary Attested Agreemtn will be helpful in the suit.
Because 2nd party was also executed Power of attorney in lieu of this property.
What will be our defence.
Kirti Kar Tripathi
(Expert) 20 March 2011
municipal committee has no role in registration of properties. it is the state government which has over all control of registration process and it is sovereign function of the state it can not be closed/stopped. However, it is suggested for avoiding future complications, if both parties are ready, get registration immediately.
Gulshan Tanwar
(Expert) 20 March 2011
Notarial attestation is of no use for your defence; Please go through the entire wordings of the documents, it is better and regarding other things, it can be under the category of Usufructuary Possession --- there are many legal things attached to the same; just only registration cannot prove anything --- what is the essence of the document? Will to share/transfer/alienation, date of death etc...many defences available.
Gulshan Tanwar
(Expert) 20 March 2011
What is the status of the property - Hereditary or self earned? How many members were Minors at the time of signing of the agreement? It is better to put the document for viewing so things can be cleared more effectively.
Adv Akhtar Ali Sheikh
(Expert) 20 March 2011
It is enforceable against the party denying to abide by the agreement. Only hitch about the admissibility of the improperly stamped document can be rectified by the proper payment of stamp duty and its penalty.
Of course to what extent you should go depends on the nature of property i.e. whether is flat, room in chawl or land etc.
Goutam
(Querist) 20 March 2011
Dear Gulshan
The agreement was done between two brothers. It is hereditary (Ancestral) Property.
Goutam
(Querist) 20 March 2011
Dear Akhtar.
What is the way to rectified the stamp paper. Under which provision i can pay the stamp duty and penalty.
One thing is more important that the legal heirs of the deceased person are not ready to do compromise relating to this property.
Adv Akhtar Ali Sheikh
(Expert) 21 March 2011
Dear Gautam
If the property were in Maharashtra you could have gone to Collecter of Stamps of the concerned district -not the usual collector or District Magistrate - the Collector appointed under Bombay STamp Act, 1958 , and I think Section is 32.
they will determine the stamp duty payable on the exchange of the property and the penalty payable on it, after this you could approach the proper court for declaration as per the terms of the exchange deed. It is necessary because if you do not pay stamp duty payable the documunet i.e. the exchange deed will be inadmissible in evidence before the court.
If you are not from maharashtra, elsewhere too the similar provision would be there.
