Legal Question in Real Estate Law in India

� Brief Facts:

� We have entered into a simple agreement on stamp paper regarding a property owned by Hindu Joint family in the month of July 2007.

� The said agreement is not notarized neither registered.

� The property is in the name of father and his 5 sons.

� A token amount of about 2% was released on the same day of agreement in name of each owner and the said claques were passed on the next day.

� We had released more than 50% payment on various occasions to repay the loans of the joint family.

� Immediately after signing the said agreement to sale on the next day one of the 5 sons came to us and told that the said property is in litigation and he has filed a suit for partition in the year 2000, the said property is one of the suit properties and there is an confirmed injunction for not to sale, etc. of High Court against the other owners of the property.

� He also informed and told us that the said agreement of sale with us was a result of another MOU which was executed between his family members which is notarized and the said both MOU�s are to be presented before the Court to take the Courts permission, and accordingly he gave us the letter to that effect along with the copy of High Court order.

� The deal of the said property was finalized by other sons of the joint family.

� Further an application by the other 4 sons was moved in the partition suit to delete the said property in reference to the said agreement to sale but the plaintiff (other son) had opposed the said application, due to not fulfillment of certain terms and conditions of the MOU executed between him and the family members, the Court passed the order on the said application and kept it pending, saying the matter will be decided at the final hearing of the suit.

In the above circumstances: Can we file a suit for specific performance? Is our agreement of no value, as it is executed during the pendency of the High Courts order? Please guide us properly as we are presently misguided, already we are losers and we don�t want to loose more. Kindly suggest us what can be done legally to get the deal finalized and get the possession of the said property.

Thankyou for ur answer to the above question to file a specific performance suit. But will it be valid in respect of the High Courts injunction on the said property and the partition suit? What is the time limitation to file a specific performance suit?


Asked on 10/18/10, 10:32 pm

1 Answer from Attorneys
Shrichand Nahar S.V.Nahar, Advocate

You need to draw a chronology to understand facts in better prespective.

There are case laws which held that any transaction in respect of a property which is subject matter of an order of injunction by a Court shall be invalid.

However, one need to study the facts and circumstances of a particular case and the facts and circumstances of the case laws to find out available options.

Remedy of filing of a suit of specific performance can be explored depending on the facts and circumstances of the matter.

Limitation for a suit of specific performance shall be as per Article 54 of the Limitation Act.

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Answered on 10/19/10, 12:49 am


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