Lease agreement property
SUDIP RAJA
(Querist) 15 May 2013
This query is : Resolved
Respected Sir,
Query Regarding to purchase property on lease agreement.
I Sudip Raja currently leave in Gondal City (Dist. Rajkot, State – Gujarat). I want to buy a property on lease agreement. At present there is total two owner of this property. (1) First & original owner is APMC (Agriculture Produce Marketing Yard Committee). (2) Second Owner is who at present use this property on 98 years lease agreement. I buy this property from second owner. When second owner buy this property from marketing yard in year 2001 at that time property cost Rs. 4 Lakh. This 4 lakh value is only land value. After acquire this land second owner construct a godown on this land which value Rs. 2 Lakh. At present in year 2013 this property market value Rs. 1 crore approx.
As per marketing yard lease agreement terms & condition no one have right to sale this property and also no one have to right to give this property on rent basis. Means second owner have no right to give on rent basis or also no right to sell it.
Now if I buy this property then I get only Rs.4 lakh lease agreement and Rs. 2 Lakh construction value it means total Rs. 6 Lakh I get on my account book. All other Rs. 94 Lakh that I have to pay in black money format.
I want to pay all money in white format because this property I buy on support of bank loan. Now Bank requirement is that if there is no any register document with property register office of government then how we give you loan? Also in marketing yard lease agreement they give in written that all schedule, private bank have right to give loan on this property. But bank are not accepted this they want registered document.
So, Respected Sir, Is there any way as per Indian government and Gujarat government property law that I will buy this property in white format money and I also register it with register office of government and also bank clear my loan?
Sudip Raja
M. 9427721997
Raj Kumar Makkad
(Expert) 16 May 2013
When there is the term between the lessor and lessee that the property cannot be sold by lessee then how can you purchase it and how banker can become agree to advance laon to you and how the deal can be white?
You are doing an illegal work. The lessee even cannot sale and no registrar is going to register such sale deed.
ajay sethi
(Expert) 16 May 2013
when you are buying property worth 1 crore you can easily afford legal fees . contact a local lawyer .
as pointed out by mr makkad you cannot purchase property from lessee without prior consent of lessor
R.K Nanda
(Expert) 16 May 2013
agree with experts.
SUDIP RAJA
(Querist) 16 May 2013
Respected Sir,
Thank You Very Much for your valuable answer. Till I not buy this property because here my local advocate also give me same advice as like you.
Thank you very much sir.
P. Venu
(Expert) 17 May 2013
I feel that the query requires a deeper examination. Prima facie, there is a condition in the lease deed that the property cannot be sold or rented out.
But a second look would reveal the lease in the instant case goes beyond the confines of the term as defined under Section 105 of the Transfer of Property Act i.e. transfer of a right to enjoy the property of the lessor, on certain terms. However, in this case, the lessee has created his own property to make the land suitable proposed enjoyment. And the value of the property created by the lessee is much more the value of the property leased out.
It is my considered opinion that the transfer is an assignment rather than a simple lease. In other words, this is a kowl (or cowl), a customary assignment in vogue in our country from time immemorial, much before the Transfer of Property Act, A kowl is a lease as defined under the Indian Stamp Act. Such being the case, the terms of the lease needs to interpreted consistent with the purpose it has been assigned.
The property is a marketing yard. It is being used for commercial purpose. The condition is one which locks up the land and capital and prevents the active circulation of property. The condition obstructs the free and active circulation, which is one of the springs as well as the consequences of commerce, withdrawing the capital of the country from trade, and the incentives to exertion in that branch of industry diminished. Such a state of affairs is is inconsistent with national prosperity.
Viewed thus, the condition is restraint on trade and is void in terms of Section 27 of the Contract Act.
Furthermore, a condition violates Article 19(g) and hence falls foul of Section 21 of the Contract Act.
Thus the condition is neither valid for lawful.
On Practical terms, the condition is impossible to enforce and it is matter of common knowledge that similar conditions are violated with impunity and is the springboard of corruption and black money. Public intertest is compromised in as much as Government is losing stamp duty.
Fact of the matter is that Our Constitution is not yet operationalised. Any restraint on the Right to Freedom could only be imposed through a law enactd under Article 19(6), which the Parliamant alone is competent.
However, many Government organisations have discovered an easy way to usurp power for themselves by getting such seductive conditions in lease deeds. The deeds, invariably, are predesigned printed forms and the hapless citizens have little option other than to sign on dotted lines.
I am Government servant and works in a Department which have cleverly managed to substitute licence raj with lease raj.
SUDIP RAJA
(Querist) 18 May 2013
Respected Mr. Venus Sir
Thank you very much for your answer with deep information.
I give you some more deep detail about this property.
If I will buy this property then what procedure I have to follow as below.
(1) First at present second holder property lease agreement surrender in marketing yard.
(2) Then Marketing yard will give an advertisement in newspaper that this property now transfer from second holder to me ( Sudip Raja ) if any have objection against this then they will meet in fifteen days after this advertisement.
(3) If no one can object to this advertisement then marketing yard transfer this property on my name.
(4) Marketing yard will take Rs. 2 lakh transfer fee from me.
(5) But Marketing yard give me lease agreement only of Rs. 4 lakh that they issued at present property holder.
(6) Marketing yard will not help me for property’s at present new fair value and they not issue me new lease agreement of Rs. 1 cr. Because marketing yard is not a business firm.
(7) Also same way at present property holder has no right to give me lease agreement of Rs. 1 cr.
(8) So, on my book of account total value of this property is only 8 lakh.
(9) How this 8 lakh? (1) Rs. 4 lakh lease agreement (2) Rs. 2 Lakh Construction Cost (3) Rs. 2 Lakh Transfer Fee
(10) I also meet one employee of marketing yard for how this property will appear on marketing yard book and also how it’s on my name.
(11) After My meeting with employee of marketing yard he gives me all information about this transfer procedure that I write in above all.
Sudip Raja
SUDIP RAJA
(Querist) 18 May 2013
Respected Mr. Venus Sir
Thank you very much for your answer with deep information.
I give you some more deep detail about this property.
If I will buy this property then what procedure I have to follow as below.
(1) First at present second holder property lease agreement surrender in marketing yard.
(2) Then Marketing yard will give an advertisement in newspaper that this property now transfer from second holder to me ( Sudip Raja ) if any have objection against this then they will meet in fifteen days after this advertisement.
(3) If no one can object to this advertisement then marketing yard transfer this property on my name.
(4) Marketing yard will take Rs. 2 lakh transfer fee from me.
(5) But Marketing yard give me lease agreement only of Rs. 4 lakh that they issued at present property holder.
(6) Marketing yard will not help me for property’s at present new fair value and they not issue me new lease agreement of Rs. 1 cr. Because marketing yard is not a business firm.
(7) Also same way at present property holder has no right to give me lease agreement of Rs. 1 cr.
(8) So, on my book of account total value of this property is only 8 lakh.
(9) How this 8 lakh? (1) Rs. 4 lakh lease agreement (2) Rs. 2 Lakh Construction Cost (3) Rs. 2 Lakh Transfer Fee
(10) I also meet one employee of marketing yard for how this property will appear on marketing yard book and also how it’s on my name.
(11) After My meeting with employee of marketing yard he gives me all information about this transfer procedure that I write in above all.
Sudip Raja
