Source:- Lawtimesjournal
There are millions of cases pending in the district courts in relation to civil matters. Out of them, more than half cases are related to land & property, before the courts from a very long time which haven't been resolved till date. Most of the property cases are between the family members which leads to the diffusion of joint family into nuclear one. Therefore, it becomes very necessary to have knowledge and clear views regarding the provisions of mode of transfer of property in India.
The Transfer of Property Act, 1982 given by the Indian legislature states about the transfer of tangible or intangible immovable property through different ways like relinquishment, sale, gift, mortgage, lease, exchange etc. But this transfer can only be between living persons whether natural or an artificial person as it may be. Also transfer need not be done in present but can also be done in future.
The property which has been transferred by the way of succession, legacy or in contemplation of death are 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 transfer of ownership in exchange of price paid or promised or part paid or part promised. [1]
The essential elements of sale are:
1. Parties of sale
2. Subject matter of sale
3. Consideration
4. Mode of execution of sale
Parties of 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 can either be owner of property or should have an authority to dispose of such property. For example, ‘karta’ have an authority to dispose off property under specific circumstances. [2] Similarly, the guardian of the minor person can sell the property only by court's permission.
Transferee should be a person who is competent to take possession over the property and not legally disqualified (insolvent). A minor can be the transferee and therefore transaction of sale is valid.
Subject matter of sale
Sale of property given under this act deals only with the immovable property and that immovable property can be tangible (which can be touch and feel like trees, house etc.) or intangible (right of easement) in nature. Further there is an express statement made by the owner to convey his right to transferee for the property which can be sufficiently identified.
Consideration
The consideration for having a valid sale is that there must be money in exchange of 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 sale For the execution of valid sale deed there should be fulfilment of three essential requirements; sale deed by transferor should be in writing, it should be properly attested and registered [3] for any immovable property but these requirements are not compulsory for the property which have nominal value or value less than rupees 100. Whereas the property whose value less than 100 rupees can be done by simply transfer of property. In the case of Megha Enterprises Private Limited v. Official Liquidator, the court held that sale of property which is being auctioned by court does not require the above three essentials and the certificate of sale by the court is enough for that sale only. [4]
Contract of sale
Contract of sale is only a contract over an immovable property by the execution of terms settled by the parties for the sale of property. It doesn't create any right of possession and charge over the property. It is merely a document which further provides sale of deed. Sale of contract is different from sale as there is no registration of property.
But 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. But if the
Contract of sale is subject to future negotiations for
Finalization of more terms of contract for sale
Conclusion
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 willingness to transfer the property where as sale is an actual transfer of property.
Footnotes
[1] https://indiankanoon.org/doc/613871 /
[2]shodhganga.inflibnet.ac.in › ...PDF Essential of Valid Sale – Shodhgana
[3] https://www.latestlaws.com/articles/all-about-sale-and-mortgage-under-transfer-of-property-a ct-1882-by-rohan-upadhyay/
[4] https://www.google.com/amp/s/www.casemine.com/judgement/in /
REFERENCES:-
(a)https://bhandarilawfirm.com /
(b) https://sjlexis.com /
(c) https://www.latestlaws.com /
(d)https://www.legalbites.in / (e)shodhganga.inflibnet.ac.in
(f)AIR 2003 Ori 189.
(g)AIR 2008 Raj 138