What is An Agreement to Sale?

what is greement to sale ?

What is agreement to sale?

An agreement to sale always precedes the process of actual execution of the sale deed. An agreement to sale is a very important stage of the whole process. An agreement to sell is an important document in the process of sale and purchase of property. This agreement contains the terms and conditions agreed upon between the parties. It further binds them too. An agreement to sell is the basic document on which a conveyance deed is drafted. It is always advisable to have an agreement to sell in writing.

Two agreements to sale

What if there are two agreements to sale and no execution of sale deed as such? In such cases, a very famous doctrine, i.e. Doctrine of priority in Property Law is applied. When there are two simultaneous agreements to sale of the same property, Section 48 of the Transfer of Property Act comes into play.

Section 48 says that Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

The essence of Section 48, says that the transfer of the property cannot be done of something more than what the person really has. To simplify this further, it means when with respect to one property documents of transfer of rights therein are executed at different points of time, then, earlier documents would prevail over later documents.

Section 48 determines the priority when there are successive transfers. It provides that where a person purports to create by transfer at different times rights in or over the same immovable property,

and such rights cannot all exist or be exercised to their fullest extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. Section 49 of the Registration Act provides that until the document is registered,

It shall not affect any immovable property nor can the document be received in operation of the provisions of Sections 48 and 54 of the Transfer of Property Act and there would be compliance of provisions of Section 54 of the Transfer of Property Act as well as Section 49 of the Indian Registration Act.

However, the Madras High Court in Duraiswami Reddi vs. Angappa Reddy held that the prior transferee would be entitled to enforce his rights though his document is registered later and even if the subsequent transferee entered into transactions bona fide without knowledge of the first transaction.

It was held that this result was implicit and was a direct consequence of the combined operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act. It is also observed that the right of priority of the first transferee would be postponed only if the later transferee establishes any informative circumstances like fraud, estoppels or gross negligence.

 

This decision was followed in a later decision of the Madras High Court in Ramaswami Pillai vs. Ramaswami Naicker, as well as in the Bench decision of the Andhra Pradesh High Court in Jagannatha Rao vs. Raghavarao. 

In Chouth Mal vs. Hira Lal, an agreement to sell land in favour of one defendant was executed on 17th January, 1932. The sale-deed was executed in defendant’s favour on 5th May, 1932. But in the meanwhile owners executed an usufructuary mortgage of the same land in the plaintiff’s favour on 20th February, 1932.

It was held that the mortgage must have its due effect as against the subsequent sale. Once it is accepted that the parties really intended to convey the suit properties and possession of the said properties was in fact delivered to the conveyee in pursuance of the said conveyance, the mere omission of the plot numbers in the sale-deed is not of any consequence.

It means, if the same property has been transferred at different times the subsequent transfer shall not confer any right, title or interest on the basis of the subsequent transfer vis-à-vis the first transfer.

 

Mere registration does not convey the title to a purchaser. A transfer operates from the date of execution of the deed, although it may have been registered at a later date. Registration is not a formality which creates any rights. It is prima facie proof of intention to transfer the title.

It is no proof of operative transfer. Customarily, the sale deed which was registered first has to prevail in the matter of conveyance of title over others. The title under sale deed passes on the date of execution of the sale deed, even if the registration of the sale deed is completed on later date, it must relate back to the date of sale. Therefore, an agreement to sell executed prior to date of attachment of judgment, but registered thereafter, would prevail over such attachment.

Conclusion

Therefore, according to Section 48, the transferer cannot prejudice the rights of the transferee by any subsequent dealing with the property.

By- Kapil Chandna

Practicing Advocate at Supreme Court Of India

Best Bail Lawyer in New Delhi,India

 

Should he send back to custody again?

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Should he send back to custody again?

More often than not this question comes to the mind of every person that once a person a granted bail, he cannot be send back to the prison and he can use his freedom the way he wishes. But now a day’s more number of cases for cancellation of bail are coming forward because the accused while taking bail swears to abide by the express terms and conditions if any imposed or even otherwise he has to abide by the implied conditions of the Criminal Jurisprudence but since the accused forget the conditions be it implied or express, which makes the other party to move an application for cancellation of the bail.

But now the question comes that cancellation of bail is as easy as the granting of bail, the answer to the question is big NO as held by Hon’ble Supreme Courts in number of cases and reason for the same that once a bail is granted it should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer to conductive to a fair trail to allow the accused to retain his freedom by enjoying the concession of bail during trail.

Now we see why the accused is required in custody because he should be presumed to be innocent unless proved guilty and that the law works on the principle of bail not jail, but then the question comes that even after applying these principles the court comes to know that the accused is taking law into his hands and interfering the fail trail by tampering with the witness or indulges into some criminal activity, the court has a reason to cancel the bail.

Following are the grounds as laid down by Hon’ble Supreme Court in Abdul Basit Vs. Abdul Kadir Chaudhary, 2014 (4) JCC 2810 held that U/S 439 (2) empowers the High Court to direct any person who has been released on bail under chapter XXXIII of the Code to be arrested and committed to custody, i.e. the power to cancel the bail granted to an accused person:-

1. The accused misuses his liberty by indulging in similar criminal activity.

2. The accused interferes with the course of investigation.

3. The accused attempts to tamper with evidence or witnesses.

4. The accused threatens witnesses or indulges in similar activities which would hamper smooth investigation.

5. The accused is likely to fell to another country, or otherwise avoid the due process of law.

6. The accused attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.

7. The accused attempts to place himself beyond the reach of his surety.

The grounds mentioned are not exhaustive and merely illustrative. Therefore the accused are not to misuse the express as well as implied conditions imposed by the court and should not interfere in the due process of the court.

Kapil Chandna Advocate

Practicing at Supreme Court of India

Read Also : – How to seek bail in false 498A/406 IPC

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LATEST JUDGEMENT OF SUPREME COURT OF INDIA ON “BAIL NOT JAIL”

LATEST JUDGEMENT OF SUPREME COURT OF INDIA ON “BAIL NOT JAIL”

Yes,This is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India. I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trail and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.

Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trail stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still the question comes that are these accused persons getting the most cherished right and if yes then how many.

Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.

Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:

  1.  While granting the bail, the court has to keep in mind:-

The nature of accusations, the nature of the evidence in support thereof,

  1. The severity of the punishment which conviction will entail,The character, behaviour, means and standing of the accused,Circumstances which are peculiar to the accused,Reasonable possibility of securing the presence of the accused at the trial,Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence”which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
  2. Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.
  3. Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
  4. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargementon bail from the Court.”

To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail.

  1. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

“The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants.

The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence.Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

  1. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community.

A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

  1. The time to be taken in trial and they should not be subject to indefinite custody.

You Can Read Judgments & Grounds for Filing False Rape Cases in Supreme Court of India

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Advocate Kapil Chandna

(Practicing in Supreme Court of India)

Advocate.kapilc@gmail.com

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