Is it necessary to Get probate to Sell a land in ALWAR?
Aditya R khandelwal
(Querist) 07 January 2010
This query is : Resolved
WEL I PURCHASED A LAND 10 YEAR BACK.....THE PREVIOUS OWNER HAS GIVEN ME THE "REGISTERED SELL AGREEMENT" OF THE LAND IN MY FAVOUR.ALSO THE "REGISTERED POWER OF ATTORNEY" WAS BEING ISSUED BY PREVIOUS OWNER BUT IT IS IN FAVOUR OF MY ELDER BROTHER, I HAV GIVEN ALL THE MONEY OF THE LAND 10 YEARS BACK TO THE PREVIOUS OWNER. THE PREVIOUS OWNER ALSO ISSUED "REGISTERED WILL" IN FAVOUR OF ME.NOW 3 YEARS BACK THE PREVIOUS OWNER DIES."THE SALE AGREEMENT" AND "THE REGISTERED POWER OF ATTORNEY" AND "THE REGISTERED WILL"WERE ISSUED ON THE SAME DATE.CAN I SELL THE LAND WIDOUT INVOLVING MY BROTHER IN IT????I STAYS IN ALWAR IN RAJASTHAN.
IMPORTANT NOTE TO ALL OF YOU EXPERTS . DEAR ALL SIR THE SALE AGREEMENT IS A "REGISTERED SALE AGREEMENT" i.e. it is notary attested by the previous owner in favour of me. AND ALSO I HAV THE "REGISTERED PAYMENT SLIP" in Hindi we cal it as "BHARPAI RECEIPT" it is also notary attested ON Rs. 10 STAMP PAPER IN THAT SLIP ALL THE PAYMENT WHICH IS BEING PAID BY US TO THE PREVIOUS OWNER IS MENTIONED.THE WITNESS IN THE "REGISTERED PAYMENT SLIP" ARE THE 4 SONS OF THE PREV. OWNER.THE REGISTERED WILL IS ALSO notary attested by the previous owner itself. Now can i sell The land and on what basis? Either on the basis of REGISTERED WILL or On The Basis OF REGISTERED SALE AGREEMENT. And also Is it Necessary to Get probate? which i am not in favour of making as it might create problem if the Son of previous owner try to create for me.
Jayashree Hariharan
(Expert) 07 January 2010
Hello Aditya, it is better you get a probate, since you do not have a proper sale deed, and sale agreement and payment are notarised. I suppose the will is also only notarised? One thing you should know is notarising a document does not amount to registration. so you do not have any registered document as such with you, in your favour. Registration is done only by the Sub-registrar. Would like to know if you have other papers like khata, tax paid receipts, etc in your favour? so that better advice can be given to you.
niranjan
(Expert) 07 January 2010
You can give notice to the heirs of deceased seller for executing the sale deed. Is possession is with you ? You may also file suit for specific performance if they do not come forward to execute the sale deed.
Raj Kumar Makkad
(Expert) 07 January 2010
The opinion of niranjan is accurate in the given facts so follow it.
B K Raghavendra Rao
(Expert) 07 January 2010
You are asking suggestion for selling the land - whether on the basis of Will or on the basis of Agreement of Sale. Am I right?
You cannot sell the land on any of these instruments simply because you are not the owner of the immovable property. First, you have to take steps for transfer of the property to your name. Agreement to sell is only a contract between the two parties. Here, the seller-to-be is dead and therefore, Agreement to Sell cannot be enforced. However, as you have proof of payment of consideration money, you may seek refund of the same from the son of the deceased.
Presuming that the Will executed is in order, there is no alternative but for you to initiate proceedings in civil court for declaration that you are the successor for the immovable property mentioned in the Will.
However, unless the property is transferred to you, you cannot sell the same.
B K Raghavendra Rao
(Expert) 08 January 2010
Further clarification. Under the Indian Registration Act, it is mandatory to register the Sale Deed if the value of the immovable property is more than Rs. 100/-. In your case, you say that the SELL AGREEMENT is notarised. Notarisation is not registration. Registration has to take place at the office of the Sub-Registrar, Revenue Department. Therefore, the document you are holding is not a valid document and by virtue of that document, you do not get any title. Therefore, my earlier suggestion holds good even now.
