An unregistered Agreement to sale was executed on 20/June/2018 on Rs.50 Stamp paper without any witnesses between Mr. A (Buyer) and Mr.B (Seller- on whose name the property is mutated and registered ) and 2 sons of Mr B ( who are neither registered owner nor has any mutation in their names). The time mentioned on the Agreement for the full and final payment by Mr. A and execution of the sale deed was 31/oct/2018. Now some facts:- 1) Full amount mentioned in the agreement has not been paid till 31/oct/2018 even after various reminders. 2) Till 31/oct/2018 whatever payments made were done by some third parties not mentioned in the agreement nor known to the sellers and were remitted in the accounts of Mr.B & his 2 sons 3) 3 Legal notices were sent to Mr.A by the seller through his lawyer but they returned due to untraceable address of Mr A. 4) The legal notices mentioned the cancellation of the agreement to sale as well as payments by the third parties. 5) In furtherence to this three public notices in national newspapers were also published through the lawyer of the seller Mr. B for any claim towards the property or the payments . 6) Neither Mr.A(buyer) nor any of the third parties has ever turned up till date in respect of any claim. 7) During the period seller Mr.B expired in September 2019, leaving behind his 2 sons. Now my query and question are as follows:- 1. Is the agreement to sell valid and legal. 2. As the buyer Mr.A nor the third parties ever approached the sellers will this agreement stands cancelled. 3. Can the 2 surviving sons of Mr. B sell the property to new buyer after the public & legal notices. 4. Can the buyer Mr. A or third parties approach the courts on any ground for specific relief. 5. What about the refund policy of the amount paid by third parties.( Can they still claim )
It is necessary to peruse agreement for sale executed between parties to advice
2) is there a clause that in event full payment not made within time agreement shall stand cancelled
3) there must be clause regarding refund or forfeiture of advance payment
4) in case A files suit take the plea that time was essence of contract and since full payment was not made in time agreement stands cancelled
1. Children of Seller (B) are legally entitled to sell their Father's property, without any further legal references to anybody.
2. Earlier Agreement is as it is "null & void" for all legal purposes, since it was not fully Stamp Duty paid and Registered, which is absolutely compulsory for all immovable properties.
3. Buyer (A), due to above point no. 2, CANNOT legally enforce the Agreement, under any circumstances, whatsoever and whichsoever.
4. However, buyer party, upto limitation period of Three years from last payment date, is entitled to claim his money without interest, ONLY via a Civil Court suit.
Agreement not duly stamped. It had to be executed on 100rs or 500rs stamp. Therefore cannot be enforced through court.
Further, on his failure to make payment on given time and intimation to cancel agreemnt, it is expired.
Notice send via registered post on given address if returned, means duly served. Can sell the property to any.
Suit of specific releif can be file but may dismissed due to default committed by buyer.
Refund or forfeiture of amount depends on condition of agreement.
The agreement is Invalid and Illegal, and if the agreement is invalid than no one is bound to follow it.
Mr. A can claim
And Thrid parties can ask for refund
He can go for specific relief even if the agreement is unregistered. Specific relief may be granted
1. No, since the agreement to sale was executed on stamp paper of Rs.50/- , and not having any witness , then this agreement cannot be proved in court of law. Hence, the agreement to sell not valid and legal.
2. If the agreement containing clauses for the expiration of the agreement in case of default of payment , then the said agreement has already been cancelled..
3. Yes, they can sell legally
4. Yes, they can , but the limitation period for filing the specific performance is limited to 3 years.
5. Yes they can claim , but 3 years period will be applied here also.
1. The agreement was valid when it was made, but in the given circumstances the legal heirs of seller cannot be made liable for execution of sale deed as seller has done all that he could do to show his readiness and willingness to honour the agreement.
2. The legal heirs of seller are free to sell the property to anyone else if there is no injunction ordered by the civil court against sale of property.
3. The buyer A cannot be stopped from going to court, but if he files a suit for specific performance he will have to prove that he was ready and willing to honour the agreement but seller backed out.
4. If payment has been made by third parties not mentioned in the agreement, they are free to claim refund from seller.
Hi
The answers are as follows:
1) An unregistered agreement to sell cannot be admitted as evidence as Section 17, 49 and 53A of transfer of property act will come in to play and courts cannot admit the document as evidence.
2) However, an unregistered agreement to sell, can be used to invoke relief under specific relief act, but hereagain the Seller has taken all steps mandated in law to cancel the agreement . Therefore the very fact that
a) Seller had issued legal notices (which were returned unserved) and
b) Seller issuing paper publication in news paper
means that the seller has taken all steps to rescind/cancel the agreement and as such the Seller is under NO LEGAL OBLIGATION to execute the sale deed.
3) Given that much time has elapsed (i.e 22 months from date of agreement to sell) and buyer has not come forward to perform his part of contract, the 2 surviving sons of the seller can proceed to sell the property to a new buyer without any further notices to previous buyer.
4) Courts will not grant order in favour of previous buyer even if the previous buyer approaches the court for relief under specific relief act as buyer has miserably failed to perform his part of contract despite passage of 22 months.
5) In law, even unserved postal notices are valid and added to the fact that paper publication has also been issued cancelling the agreement.
6)Refund policy- The seller may retain upto 75% of payment received and may return up to 25% of the money paid by buyer, provided the buyer approaches the seller. Third parties cannot make any claim to the seller as they are not parties to the contract(agreement to sell dated [deleted] and doctrine of privity of contract will strictly prohibit the third parties to make any claims against the seller.
Hope this information is useful.
1. Every agreement is valid and adjudicable in the court of law as long as the court has not declared so or the buyer accepts thr cancellation on refund of consideration amount with or without deduction.
2. Same as above.
3. It would depend on circumstances.
4. Yes definitely.
5. It would depend on terms of the sale agreement.
1. Basically the unregistered sale agreement is not enforceable in law.
Moreover the period mentioned in the sale agreement is also expired subsequent to which the vendor had sent legal notice intimating cancellation of sale agreement as well as made a newspaper publication to this effect, thus it can be stated that the unregistered sale agreement stands cancelled.
2. Since the buyer had not turned up nor had taken any interest to enforce the agreement nor has paid the balance of sale consideration amount neither had intimated his willingness to get the sale deed executed by paying the balance of sale consideration amount, any claim made by the buyer after the agreement to sale has been cancelled by the vendor, may not be maintainable.
3. Yes, they go ahead with the sale of the said property to a prospective buyer along with the other legal heirs of their deceased father.
4. You may not prevent them from doing so since their advance amount is being held by you.
5. Yes, the amount paid by them has to be returned after deductions of administrative costs.
DEAR SIR,
The said agreement is valid. The approaches by third party is not valid because it is not clear as to what's the interest of third party. If the original seller did not turn up, the said agreement become infructuous and the property may be sold to third party. After lapse of sufficient time and none appearance even after newspaper publications, the demand of A would not be valid for sale of the land. But the money may be returned by the sellers/son(s).
1. The unregistered Agreement to sell is not legally valid. Even though if it's a registered one and if the time for concluding the sale has lapsed and the buyer has not responded to the legal notices sent to the buyer so far, then it's not a valid agreement. However, legally, the validity of registered agreement of sale is up to 3 years, unless agreed upon by both the parties otherwise, but however not exceeding 3 years.
2. When once the legal notice, as also Public Notice in the newspapers is published but still no response from the buyer goes to say that the agreement to sell is deemed to be cancelled.
3. The legal heirs of Mr. B can sell the property after the legal notice and paper publication. Class-1 legal heirs are Mr. B' s mother (if alive), Mr. B' s wife and children (All sons and daughters).
4. Let Mr. A or anyone go to court for specific relief and if legal heirs of Mr. B produce the agreement to sell, more so specifically the time mentioned there, as also 3 legal notices sent to Mr. A, public notice published in vernacular and English newspapers, then the court may not give favourable judgement in Mr. A' s favour.
5. Refund of advance money depends on the clauses in the agreement to sell to know whether it can be forfeited or it can be returned to Mr. A.
1) Against buyer.
2) Does not matter.
3) Seller complied his contractual obligation.
4) Since full and final payment was not made as agreed, seller cancelled. (If the agreement might contain two clauses forfeiture clause and time essence) Based on which it is decided.
5) Seller issued notices in news papers, again complied his contractual obligation.
6) Buyer is at receiving end
7) Not your problem.
Reply to your Query:
(1) Going by your post, it is not valid, it is hit by provisions of stamp act and registration act.
(2) They will lose their right.
(3) Yes they can.
(4) Yes, within three years of such cancellation, but your need to demonstrate and prove to the court about the delay / non performance of your contractual obligation as per understanding in Agreement.
(5) No.
1. The said agreement has already been cancelled by the seller B after taking all necessary steps.
2. The agreement has been cancelled for reasons mentioned by the seller B in his notice for cancellation of the said agreement.
3. Yes, the legal heirs of the seller B can now jointly sell the said property to any third party.
4. You can not stop anybody in approaching the Court but their case will have no legal leg to stand upon.
5. If you do not recognise the third parties as authorised parties to pay for the said sale agreement with the buyer A, then you shall have to return the amount paid by them since you nhave no ground to hold their sid payment after you cancelled the agreement with buyer A. The payment made by A can be forfieted by you if there is any forfeiture clause mentioned in the said agreement.
1. See the time period for agreement is expired and the buyer has not turned up nor filed any suit for the specific performance so as per agreement condition it is not valid now.
2. As per the notice yes it stands cancelled.
3. Yes they can sale.
4. In case they file any suit the seller has enough ground to contest same.
5. As per the agreement between the parties.
The agreement to sell is not valid. It has no witnesses. Unless both parties say that this agreement holds, nobody can verify that this agreement is valid and legal and was even executed. It was neither registered nor signed by witnesses.
You may send notices tobthem which you have done. Publish this in local newspapers. The agreement if both parties consider it to be valid cannot be enforced.
The money can be returned if they come forward.
From your query it could be presume that the agreement is not properly executed as per law. In such a condition it seems not valid. If the defaulter approaches the court, it is his duty to prove he is not a defaulter. He can only ask advance amount. If he files a case for specific performance then It is the discretion of the court to allow or disallow his petition. No third party can claim refund without any evidence. If a contract does not contain a time is of the essence clause, it is generally assumed that time is not an important factor for the agreement. In other words, the parties must specifically agree that time is of the essence if they deem it necessary. Unless explicitly stated, time is not of the essence in contracts
1. No agreement to sell is not valid because it was not executed due to default of buyer and it was also not registered.
2. Yes agreement stands cancelled.
3. Yes they can sell property to third party as they have already taken all necessary steps to approach buyer.
4. Yes they can approach on ground that you purposely delayed the execution for which you have proof to decline their claim.
5. Yes they can claim the amount.
Section 49 Indian Registration Act, 1908 - provison categorically states that though normally an unregistered document (Compulosarily required to be registered) is not recievable in evidence and does not create any Right/Title/interest, but the same is receivable in a suit for Specific Performance.
