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.
For more :
No comments:
Post a Comment