Selling property in bayana--legal or illegal ??

Querist : Anonymous (Querist) 01 November 2011 This query is : Resolved
I have given bayana of a property and taken a time of 6 months for the full and final payment,in bayana agreement it was written that the property can be executed in the name of my friend or relative also.

Now I am short of payment, so I have sold this property to my cousin and he is making the full payment and we want that the property's sale deed should be executed in his name only.

The seller says that further selling a property on the basis of Bayana is illegal, he is stubborn that the sale deed would be executed in my name only and he would accept the payment from my accounts only.

Can you suggest some way out please....

Is he right that further selling a property on the basis of Bayana is illegal??

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Devajyoti Barman (Expert) 01 November 2011
Without the permission of the seller you can not create a third party interest in the property and more son when the sale is not completed.

The agreement for sale does not create any interest in the property and hence you can not transfer something which is not yours.

Now you can though make a sale deed where your cousin would be purchaser, the seller would be vendor and you would be added as confirming party.

ajay sethi (Expert) 01 November 2011
agree with mr barman

prabhakar singh (Expert) 01 November 2011
I am afraid to understand thing in way they have been put so far.
'Bayana' means simply earnest or advance.

So the agreement to sale has been entered into between the two where part of consideration has been paid as 'bayana or earnest.

IN this agreement both of the prospective vendor as well as purchaser have agreed that the sale deed would be written either in name of the purchaser or on his instruction in name of his nominee who may be his friend or relative.To ME THIS CLAUSE IS NOT ILLEGAL AND PRACTICALLY ENFORCEABLE
AND THE OBJECTIVE CAN BE ACHIEVED WHERE THE SALE DEED IS EXECUTED IN FAVOR OF OPTED PERSON AND THE PROSPECTIVE BUYER UNDER AGREEMENT SIGNS AS WITNESS.

Devajyoti Barman (Expert) 01 November 2011
Here the question is not selling the nominated person is illegal but before completing the sale whether the same is possible.

Since in the instant query the purchaser had no title in the property on the basis of a mere sale agreement, any attempt to transfer his sale to a third person, would be a non est.

Here the term ;illegal' used by layman may be supposed to mean ' not permissible'.

Arun Kumar Bhagat (Expert) 01 November 2011
The attitude of the Seller is of a stub-born person. There is no illegality if the property is transferred in the name of your cousin. The sale deed may contain the fact that a sum of Rs.x was paid by you and you have intended to get it sold to your cousin and final payment of Rs.X is being paid by your cousin.

sanjeev murthy desai (Expert) 01 November 2011
Pleas check that whether such agreement reserved any nominee clause. Generally all SOA are having clause. If Sale Deed executed in favour your cousin then what about the rights raised under Agreement are left with you only and vendor is aware of your enforceable rights. Hence he is denying to execute sale deed in favour of your cousin. It is advisable to execute a assignment agreement in favour of your cousin and transfer your all your enforceable rights under such agreement. Otherwise follow another way suggested by Mr. Barman.

Raj Kumar Makkad (Expert) 01 November 2011
I do agree with Bhagat and Prabhakar Singh. The term has already been agreed by seller while entering into agreement so he cannot deny now.

Sailesh Kumar Shah (Expert) 03 November 2011
I also completely agree with detailed view of Shri Singh and Shri Bhagat's opinion and observation is also right.

Selling property in bayana--legal or illegal ??

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