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 what so ever.
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 bonfide 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 ofproperty 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 bylaw 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 thesale transaction or in the alternative he may cancel the deal.
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