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.
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.
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.
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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