Saturday, 28 March 2015



It is not uncommon that we do come across publication of notices in news papers concerning the property transactions. The reason for such publication is to make known to all concerned that a particular property is under process of purchase by the  advertiser and to give an opportunity to the affected party to raise objections, if any, against such purchase.
For peaceful possession and enjoyment of the property the purchaser has to excise proper care and diligence to ensure that property purchased by him is free from encumbrances, charge and litigation. Any laxity on the part of purchaser to conclusively find out as to whether the vendor has good and marketable title and the property is free from encumbrance would land the purchaser in uncalled for litigations but also financial strain.

Public Notice

At the outset, it may stated that issuance of Public Notice in respect of purchase of an immovable property is not a statutory requirement. There is no hard and fast rule as to the procedure an intending purchaser has to adopt to find out whether the vendor has a valid and marketable title and the property is free from encumbrance. The charge or encumbrance created under an unregistered document on the property cannot be discovered from the documents obtainable from the registering or municipal authorities. Charge created by deposit of title deeds, pending court cases or transfer of property under a will would fall into this category. To protect the interests of the purchaser upon purchase of the property and to avoid litigations, normally public notices are  taken out in leading and widely circulated news papers notifying the  intention of the purchaser to purchase the property in question so that the persons who have a vested interest in the property could put forth their objections for such sale supported by documentary proof. Such notices are generally published immediately after entering into a sale agreement with the vendor in two dailies, one in English language daily and other in a vernacular language daily which have wide circulation in the area where property is situated. The notice acts as an information or information or a caution to all the concerned to facilitate them to take such steps as are necessary to protect their interest.
A notice shall contain the intention of the purchase, description of the property with boundaries and the fact of execution of the sale agreement, if any. The notice invites the public having interest in the property to file objections are received within the stipulated time, the sale process will the proceed with treating the property as unencumbered with a clear rider clause that objections received after the stipulated time will not be acted upon. The notice must spell out in clear terms the intention of the party with no ambiguity whatsoever.
It is to be notice that issuance of Public Notice can at best be termed as a precautionary step since it as no binding force on any one having interest in the property to act in a particular manner. The interest party may not act swiftly in terms of the notice and enforce his right over the property at an opportune time. Further, there  is every like hood that the public Notice may go unnoticed  by the affected party However, the public notice would serve as an intimation to the public that the purchaser  has a bon fide interest in  the property and the interest parties, if any, for the said sale transaction. The purchaser in his own interest has to get the objections  scrutinized by an experienced advocate having knowledge in property matters so that he can avoid the likely litigations and embarrassment at a later after the purchase.
Section 55(1) of the Transfer of property Act. 1882 makes it mandatory that the seller is bound to disclose to the buyer any material defect in the property or in the seller’s title there to, which the seller is and the purchase is not aware and the buyer could not with ordinary care discover such defect, But the seller for obvious reasons may not truly disclose all the defects in the property or in the title. Therefore it is advisable that the purchaser of the property should verify and make of all the avenues available to him to find out that the property under consideration is free from encumbrance and the vendor has a good and marketable title.

Deemed Notice

The Transfer of property Act. 1882 puts some ones on the purchase and in certain cases the purchaser its deemed to have notice of encumbrance, Section 3 of Transfer of property Act defines Notice? A person is said to have notice of a fact, when he actually knows the fact, or when but for willful abstention from an enquiry or search which he ought to have made. Or gross negligence, he would have known it. According to Explanation I to sec..3 where any transaction relating so immovable property is required by law to be registered and accordingly registered, any person acquiring such property or any part of or share or interest in the property shall be deemed to have notice of such instrument from  the date of registration. The Explanation If to sec.3 stated that  any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title. If any of any person who is for the time being in actual possession thereof. Further, Explanation III to sec.3 states that person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his  behalf  in the course of business to which that fact is material  Thus notice could be classified into (1) Actual notice when a person has the knowledge of actual fact, (2) information is available on proper enquiry and search, and (3) Notice to the agent of the purchaser, where the  information is given to or received by the agent in the course of his ordinary duties, whether  be communicates it to active  partner of a firm  has  effect of notice of the firm.

Purchaser’s Obligation

It is obligatory on the part of the purchaser to make sure that this vendor has a clear marketable title of the property is free from encumbrance. Most of the encumbrances may be discovered by verification of records at Jurisdictional  sub - registrar’s office and on verification of the purchaser to recorded registers of  Jurisdictional sub-registrar’s office. Registration of a document operates as notice as notice and the actual possession of the property by a person other than the seller also operates as notices. Therefore, it would be safer that the purchaser shall visit the property to ascertain whether the property is in possession of the seller. In case the property is in possession of a person other than the vendor, It should be confirmed whether the occupant will vacate the property before registration and the vendor has every right to get the property vacated from its occupants since the Specific Relief Act 1963 recognizes the possession as a notice and there are instances where properties are leased, but lease deeds are not registered.
Though not a legal requirement, Public notice regarding purchase of immovable property would immensely benefit the purchaser since the purchaser shall come to claimant over the property under consideration and if any objections to the transaction are received, the purchaser may request the vendor to sort out the issue before completing the sale transaction or in the alternative he may cancel the deal.

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