• Regarding possession

I have purchase one bunglow via banakhat on [deleted] and the party has made one more banakhat with other party then i have make list pendancy application in court on 23 6 2016 and on 30 6 2016 the party has make me sale deed but till today he has not given me the possession what the legal procedure i can make to get the possession of that bunglow pls suggest me
Asked 8 years ago in Property Law
Religion: Hindu

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5 Answers

1) it is your case that you have purchased bungalow and that on 30/6/2016 sale deed has been executed by seller but possession not delivered

2) in such a case you should issue legal notice to seller to deliver possession of the bungalow as full payment has been made by you

3) if seller fails to deliver possession file suit for specific performance of contract and obtain orders to direct seller to deliver possession of bungalow

Ajay Sethi
Advocate, Mumbai
96084 Answers
7727 Consultations

5.0 on 5.0

In Bishundeo Narain Rai vs. Anmol Devi & Ors. [1998 (7) SCC 498], spreme Court had occasion to consider the question as to when the ownership and title in a property will pass to the transferee, under a deed of conveyance. This Court observed :

"Section 8 of the Transfer of Property Act declares that on a transfer of property all the interests which the transferor has or is having at that time, capable of passing in the property and in the legal incidence thereof, pass on such a transfer unless a different intention is expressed or necessarily implied. A combined reading of Section 8 and Section 54 of the Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on terms and conditions embodied in the deed indicating the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872."

9. In Kaliaperumal vs. Rajagopal & Anr. [2009 (4) SCC 193], this Court again considered the issue and held:

"It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of Transfer of Property Act, 1882 ("the Act", for short) defines `sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property.

The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or' ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by section 92 of Evidence Act. x x x x There is yet another circumstance to show that title was intended to pass only after payment of full price. Though the sale deed recites that the purchaser is entitled to hold, possess and enjoy the scheduled properties from the date of sale, neither the possession of the properties nor the title deeds were delivered to the purchaser either on the date of sale or thereafter. It is admitted that possession of the suit properties purported to have been sold under the sale deed was never delivered to the appellant and continued to be with the respondents. In fact, the appellant, therefore, sought a decree for possession of the suit properties from the respondents with mesne profits. If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant."

Ajay Sethi
Advocate, Mumbai
96084 Answers
7727 Consultations

5.0 on 5.0

1. File a complaint case before your local District Consumer Disput Redressal Forum alleging deficiency in service and unfair business practice claiming handover of possession of the Bunglow within a fixed time frame and penalty of a fixed amount for each days delay with interest, damage and cost.

2. The builder/vendor will hasten up to hand you over possession of the said property otherwise will face huge loss towards payment of penalty.for each day's late delivery of possession of your Bunglow.

Krishna Kishore Ganguly
Advocate, Kolkata
27332 Answers
726 Consultations

5.0 on 5.0

If the sale deed has been executed in your favour the title has passed to you, as a corollary to this the seller is bound to deliver the possession to you. You can file a suit for mandatory injunction against him to get the possession.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

You can file a suit for specific performance of contract before the jurisdictional court.

Seek relief of execution of sale deed by expressing that you are willing and ready to pay the balance of sale consideration amount.

You can seek injunction restraining the defendants from alienating the property till the disposal of suit.

You can make an alternate prayer for refund of the advance amount paid.

T Kalaiselvan
Advocate, Vellore
86285 Answers
2292 Consultations

5.0 on 5.0

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