You can go for Declaration suit and can prayer for transfer of Title on your name.
Cancellation of sale deed means you were not seller in this deed and its not fraud or misrepresentation transactions.
Declaration suit / Cancellation of Sale Deed
I purchased 900 Sq. Yards from my money and I did registration along with two persons (Sameer and Raju) for different reasons. Now I want to sell this plot, they became hostile and demanding a specific share in it. 1. All the registry original sale deed papers are with me. 2. All the D. D’s amounts I paid to the seller from my bank account. 3. All the Cash amounts paid by me and receipt on my name. 3. As per their financial status, they are in no position to prove how they purchased this plot. Recently I came to know that they tried to sell their undivided share, I took a status quo order and stop their activities to sell this plot. I have decided to file a case in court. Now my Questions Is: A) SHALL I GO FOR DECLARATION SUIT ONLY? B) SHOULD I GO FOR DECLARATION SUIT ALONG WITH CANCELATION OF SALE DEED?
Asked 4 years ago in Property Law
Religion: Muslim
12 Answers
You should file declaratory suit that you are absolute owner of property
you have already obtained injunction restraining sale of property by co owners
you should enclose your bank statements that full payment has been made by you
1. Since the property was purchased on joint names, perhaps the intended suit for declaration of title may not be maintainable.
2. Cancellation of sale deed cannot be done unilaterally even if you file a suit for it for the reasons you rely upon.
1. Even if you made all the payments and the original sale deed is with you, the reflection of name of sameer and raju makes them undivided 1/3rd share holder in the property.
2. Now even if you file declaratory suit then would be hit by Benami transaction Act and the hence the suit would not be maintainable.
3. You can not go for cancellation sale deed either without the consent of those 2 persons.
4. Your only option is to pay the value of share of sameer and raju and get their 1/3rd undivided share in your favour by way of registered gift/release or sale deed.
1. You have to go for declaration suit seeking declaration of complete ownership over the plot.
Dear Sir,
Yes, you can file declaration suit in civil court
Suit for declaration is the most common and effective types of civil suits filed by Indian lawyers. It seeks the relief of declaration and injunction on the basis of the declaration of the court. Suit for declaration is a declaration from the court on any issue by way of a decree of the court. The relief of injunction in a suit for declaration is the consequential relief in most cases.
Section 34 and 35 of the Specific Relief Act lay down the law relating to declaratory decrees. A declaratory decree is a decree declaratory of a right which is doubtful or which requires to be cleared or pronounced by the courts in favour of the person approaching the court. The object of the declaratory decrees is to prevent future litigation by removing the existing cause of the controversy. In other words, if a cloud is cast upon the title or legal character of the rights of the plaintiff in any manner, he is entitled to seek the aid of the court to dispel it by way of a suit for declaration. The court considers the rival contentions and passes a decree of declaration establishing the rights of the parties to the suit.
Provision of law related to suit for declaration:
Section 34 of the Specific Relief Act lays down the circumstances under which a declaratory decree may be passed. It provides:
“Discretion of court as to declaration of status or right—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation—a trustee of property is a ‘person interested to deny’ a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.”
Section 34 of the Specific Relief Act does not sanction every kind of declaration but only a declaration that the plaintiff is entitled to any legal character or to any property. It is not a matter of absolute right to obtain a declaratory decree and it is discretionary with the court to grant or refuse to grant it.”
It is essential for a decree under Section 34, Specific Relief Act, that the plaintiff must be entitled to any legal character to any right to property. ‘Legal character’ is a position recognized by law, and a person’s legal character is made up of the attributes which law attaches to him in his individual and personal capacity and the phrase is synonymous with the word ‘status’. It includes the right of franchise and the right of election.
Suit for the declaration is filed before the civil judge or the Munsif as it is called in some courts. The court thereafter considers the rights and contentions of both the parties on the basis of their pleadings and evidence and passes a decree of declaration if satisfied with the claim of the Plaintiff or denies the same.
The entire process of suit for the declaration is governed by the code of civil procedure as we call it or the CPC which has many stages as a civil suit. The decree is, therefore, a declaration of the rights of the parties.
It is always advisable and wise to engage the services of best civil lawyers for conducting the suit for declaration as such declaration has wide ranging effects on the rights of the parties.
Go for B option
File declaration suit and in the mean time sell the property. Why file for cancellation of sale deed. Sale if any is already illegal and status quo already granted by court.
Property is in your possession and all originals are with you. Any sale without originals inferred clear intention to commit forgery.
file declaratory suit and claim you are absolute owner of said property enclose all transaction details
1. You should go for recovery suit along with alternate relief of declaration of ownership over the property.
2. No need to go for cancellation of deed at this stage because it will not serve the purpose.
3. Recovery suit will put pressure on them to pay their share which you paid for purchasing the property.
1. They will surely demand their pound of flesh as you made them co-owners.
2. You have to file a suit for declaration to declare that you are true owner of the property, but the suit will not be decreed overnight.
3. If you seek the cancellation of sale deed then sale deed even in your favour will collapse.
- As per the information mentioned in the present query, makes it clear that you have bought the property from your own money and the other two are made partial of the sale deed.
- I would like to inform you that you need to only go for the declaration suit to prove your right over the property as if you happen to go for the cancellation of sale deed along with it then you would also loose your right over the property.
- They have just been made party therein though it shows that they may have some interest in the property but definitely not for the sale of their portion.
- It will only be dependent upon the sale deed contents as to upto what right they have been vested with as definitely they may have some right for being there name in the deed irrespective of the fact that money had only been paid by you at the time of transaction.
