Transfer of property.
Suresh Babu Rai
(Querist) 21 December 2013
This query is : Resolved
Respected members!
Sorry for not tendering the result of my previous queries! I was out station for all these days and thanks for all the members of our club and more particularly to the members who answered my quires…
Sir!
As I have stated, I have filed a DVC case against a husband under Sec.12 of DV Act, who alleged to be taken the custody of a minor (5 Yrs) from my client. I have also filed a separate petition under Sec.97 for search warrant against the above minor within the premises of husband.
At the hearing judge asked me to withdraw the petition filed under Sec.97 of Cr.P.C against the husband and requested me to file a petition under Sec. 21 of DV Act requesting the court to handover the custody of the minor to the natural from her father and adjourned the matter for next of third day and promised me that, if my allegation of taking the baby by the husband is to be true, she is going to handover the custody of the baby through court without giving any adjournment to the husband. I have withdrawn the petition filed under Sec. 97 of Cr.P.C and filed a petition under Sec. 21 of DV Act and got served the notices on the husband within time stipulated.
The husband had taken the baby to the court and Judge Madam without giving any adjournment has handed over the custody of the minor to my client. The same was published in the local news papers as a news item for the justice done by the court towards a pitiable mother.
Secondly, I have cross examined the DW-1 confronting his own deposition with other court in similar matter and got it marked to the extent of relevant portion of that relevant portion.
Respected members!
This is my third query arose out of confrontation of witness:
1. Whether it is correct to say that you have executed an agreement on the date of registration in favour of your vendor.
(In fact the suit land was purchased for a sale consideration is Rs. 2, 62,500/-, but the DW-1, whom my cross-examination and confrontation done has executed an agreement to his vendor that, though the sale consideration is Rs.2, 62,000/- he has paid only an amount of Rs.90, 000/- and agreeing to pay the remaining amount of Rs.1, 72,500/- after a month date of registration)
It is true that I have executed Ex.A8 (agreement) in favour of my vendor that, I have paid only an amount of Rs.90, 000/- at the time of registration (marked as Ex.A3) and agreed to pay the remaining amount of Rs.1, 72,500/- after a month of registration.
Did you paid the remaining amount after a month of registration to your vendor?
Yes, I have paid total amount after a month.
Whether any receipt reduced in to writing to the effect, and whether you filed any document to show that you paid the balance sale consideration to your vendor after a month?
No, no any document or recipe is reduced in to writing to that effect as such I did not filed the same before the court.
After my suggestion:
Whether it is correct to say that you have mentioned in your sale deed (Ex. A3) that the sale consideration is Rs.1, 05,000/- and you have paid stamp duty on Rs.1, 05,000/-.
It is true that in spite of Rs. 1, 62,500/-, I have mentioned an amount of Rs1, 05,000/- on my sale deed.
It is not true to suggest that I have not paid any sale consideration to my vendor, and my registered sale deed with deficit stamp duty in not valid and in order to grab the earnest money paid by the plaintiff, I in collusion with my vendor has created the Ex.A3.
Whether that above sale, which is defined under Transfer of Property Act is valid and I about to advance my arguments to that effect, please guide me!
Thank you one and all….
Biswanath Roy
(Expert) 22 December 2013
Any kind of sale must have three ingredients namely:-1. There must be contract. 2.Payment of valuable consideration. and 3.Transfer of goods from one chattel to another chattel But in case of immovable property it is 1. An agreement for selling the property( which is optional), 2.Sale Deed i.e.Deed of Conveyance which includes a memo of consideration showing that valuable consideration of the property receipted by the Vendor. and 3. Transfer of property by giving physical Possession. Payment of short court fee stamp is merely indicates irregularity and defects in execution of conveyance and liability to the State.
T. Kalaiselvan, Advocate
(Expert) 22 December 2013
Well said by learned expert Mr. Biswanath Roy.So what is your query about, whether deficit stamp duty or about non-receipt of the balance of sale consideration by the vendor, what is the sit for, recovery of money?
Suresh Babu Rai
(Querist) 23 December 2013
Morning Sir!
The very suit is for specific performance of agreement. The plaintiff has advanced an amount of Rs.80,000/- to the suit land to the defendant No.1 and promised to pay the balance sale consideration of so & so amount within three months to him. When the plainitff approached the defendant No.1 with net cash of balance amount, the defendant No1 postponed the same under some pretext. There after my client notices that, the defendant No.1 has executed a registered sale deed covered under my agreement of sale. I have filed a suit against the defendant No.1 and 2 for specific performance and for cancellation of registred sale deed.During the course of cross examination my client informed that no total consideration was passed by the defendant No.2 to the defendant No.1 on the date of registration, and the sale is valued lesser than agreed amount between the defendant No.1 and 2. I have obtained that agreement through a notary that defenant No.2 executed a agreement in favour of the defendant No.1 on the date of registration and paid only an amount of Rs.90,000/- in spite of Rs.2,62,000/- and got executed the registered sale deed for Rs1,05,000/- only and paid the stamp duty for the emount only.
Biswanath Roy
(Expert) 23 December 2013
Payment of advance does not create any title.Normally in a document of An Agreement of Sale three clauses appears no.1. a specified period for payment of the balance amount of sale consideration and no.2.a specified period for communicating draft deed of conveyance to the buyer by the vendor for approval and no. 3. Completion of sale and transfer of property within a specified period. In absence of these three information proper guidance to you is not possible. If those clauses were set out in the agreement, whether your client followed it in toto or not please disclose it.
