Most of the property cases are between family members, leading to the diffusion
of the joint family into a nuclear one. Therefore, it becomes necessary to have
clear views regarding the provisions of the transfer of property in India. The
property transferred by way of succession, legacy or in contemplation of death
is subject to respective personal laws or sections under the Indian Succession
Act 1925 apply over them.
Section 54 of the Transfer of Property Act, 1982 define sale as:
The "Sale" is the transfer of ownership in exchange for the price paid or
promised or partly paid or part promised.
Essential Elements Of A Sale:
- Parties To Sale
- The Subject Matter Of Sale
- Mode Of Execution Of The Sale
Parties to Sale
There should be a transferor (seller) and transferee (buyer) for the sale of
property, and the transferor should be a person who is competent to enter into a
contract. In the case of Biswanath Sahu vs Tribeni Mohan
, the court stated that a
transferor could either be the property owner or should have the authority to
dispose of such property. For example, 'karta' have the authority to dispose of
the property under specific circumstances. Similarly, the guardian of the minor
person can sell the property only by court's permission.
A transferee should be a person who is competent to take possession of the
property and not legally disqualified (insolvent). A minor can be the
transferee, and therefore transaction of the sale is valid.
The Subject Matter Of Sale
The sale of property given under this act deals only with the immovable
property, and that immovable property can be tangible (which can be touched and
felt) or intangible (right of easement) in nature. Further, the owner made an
express statement to convey his right to transferee for the property, which can
be sufficiently identified.
The consideration for having a valid sale is that there must be money in
exchange for ownership, and nothing other than money can be considered for a
valid sale. Time is irrelevant in relation to consideration which means that
money can be paid before, at the time or in subsequent completion of sale.
Mode Of Execution Of The Sale
For the execution of a valid sale deed, there should be a fulfillment of three
essential requirements; sale deed by transferor should be in writing, it should
be properly attested and registered for any immovable property, but these
requirements are not compulsory for the property which have nominal value or
value less than rupees 100. In comparison, the property whose value is less than
100 rupees can be done by a simple transfer of property.
In the case of Meghan
Enterprises Private Limited v. Official Liquidator, thecourt held that the
sale of the property being auctioned by the court does not require the above
three essentials, and the certificate of sale by the court is enough for that
Contract of Sale
A contract of sale is only a contract over an immovable property by executing
terms settled by the parties for the sale of the property. It doesn't create any
right of possession and charge over the property. It is merely a document that
further provides the sale of deed.
But the sale of contract gives some rights to the transferee as, after the
contract of sale, the transferor cannot sell the property to another person, and
for the same, he can be sued by the transferee.
The Distinction Between A Sale And A Contract Of Sale:
- A transfer of ownership occurs when an immovable property is sold
under the TPA. A contract for the sale of immovable property is nothing more than an
agreement that the property will be sold in the future on terms agreed upon by
- A TPA sale creates a right in rem. A contract for sale makes a right in
Buyer And Seller's Rights And Responsibilities:
In the absence of a contract to the contrary, the buyer and seller of immovable
property are subject to the responsibilities and have the rights outlined in the
regulations that follow (or those that apply to the property sold).
The seller is required to:
- Disclose to the buyer any material defect in the property or the seller's
title thereto of which the seller is aware, but the buyer is not, and which
the buyer could not discover with ordinary care, and disclose to the buyer
any material defect in the property or the seller's title thereto of which
the seller is aware, but the buyer is not;
- Must deliver all title papers related to the property in the seller's
custody or control to the buyer upon his request for scrutiny;
- Must respond to any relevant inquiries posed by the buyer about the
property or the title to it to the best of his knowledge;
- Execute a valid conveyance of the property when the buyer offers it to
him for execution at an appropriate time and place upon payment or tender of
the amount payable in respect of the price;
- To take as much care of the property and any title papers pertaining to
it that are in his control between the date of the contract of sale and the
delivery of the property as an owner of ordinary prudence would take of such
property and documents;
Transfer of property is a transfer of all the rights and liabilities of the
property to the buyer. But a contract of sale only shows a willingness to
transfer the property,whereasa sale is an actual transfer of property. Civil law
revolves around the concept of property. It is governed by the Civil Procedure
Code and the Transfer of Property Act. Both attorneys and the general public
need to be aware of the specifics of property transactions and transfers.
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: SP42352284956-28-0922
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