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Essential elements of a sale under the Transfer of Property Act

Most of the property cases are between family members, leading to the diffusion of the joint family into a nuclear one. Therefore, it becomes necessary to have clear views regarding the provisions of the transfer of property in India. The property transferred by way of succession, legacy, or in contemplation of death is 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 defines sale as;

The "Sale" is the transfer of ownership in exchange for the price paid or promised or partly paid or part promised. ‘

Essential elements of a sale

  1. Parties to sale
  2. The subject matter of sale
  3. Consideration
  4. Mode of execution of the sale

Parties to 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 could either be the property owner or should have the authority to dispose of such property. For example, 'karta' have the authority to dispose of the property under specific circumstances. ?Similarly, the guardian? of the minor person can sell the property only by court's permission.

A transferee should be a person who is competent to take possession of the property and not legally disqualified (insolvent). A minor can be the transferee, and therefore transaction of the sale is valid. 

The subject matter of Sale

The sale of property given under this act deals only with the immovable property, and that immovable property can be tangible (which can be touched and felt) or intangible (right of easement) in nature. Further, the owner made an express statement 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 for 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 the Sale

For the execution of a valid sale deed, there should be a fulfilment of three essential requirements; sale deed by transferor should be in writing, it should be properly attested and registered for any immovable property, but these requirements are not compulsory for the property which have nominal value or value less than rupees 100. In comparison, the property whose value is less than 100 rupees can be done by a simple transfer of property. In the case of Meghan Enterprises Private Limited v. Official Liquidator, the court held that the sale of the property being auctioned by the court does not require the above three essentials, and the certificate of sale by the court is enough for that sale only.  

Contract of Sale

A contract of sale is only a contract over an immovable property by executing terms settled by the parties for the sale of the property. It doesn't create any right of possession and charge over the property. It is merely a document that further provides the sale of deed.

But the 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.

The distinction between a sale and a contract of sale

  1. A transfer of ownership occurs when an immovable property is sold under the TPA. A contract for the sale of immovable property is nothing more than an agreement that the property will be sold in the future on terms agreed upon by the parties.
  2. A TPA sale creates a right in rem. A contract for sale makes a right in personam.

Buyer and seller's rights and responsibilities:

In the absence of a contract to the contrary, the buyer and seller of immovable property are subject to the responsibilities and have the rights outlined in the regulations that follow (or those that apply to the property sold).

The seller is required to:

  1. Disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not, and which the buyer could not discover with ordinary care, and  disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not;
  2. must deliver all title papers related to the property in the seller's custody or control to the buyer upon his request for scrutiny;
  3. must respond to any relevant inquiries posed by the buyer about the property or the title to it to the best of his knowledge;
  4. execute a valid conveyance of the property when the buyer offers it to him for execution at an appropriate time and place upon payment or tender of the amount payable in respect of the price;
  5. to take as much care of the property and any title papers pertaining to it that are in his control between the date of the contract of sale and the delivery of the property as an owner of ordinary prudence would take of such property and documents;

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 a willingness to transfer the property, whereas a sale is an actual transfer of property. Civil law revolves around the concept of property. It is governed by the Civil Procedure Code and the Transfer of Property Act. Both attorneys and the general public need to be aware of the specifics of property transactions and transfers.

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Compensation in Motor Vehicle Accident Cases

Under the Motor Vehicles Act of 1988, an individual injured in a car accident or the legal representatives of an individual killed in a car accident may claim damages. It is a law made to prevent motor vehicle accidents and compensate victims and punish guilty parties in the event of an accident. There is no time constraint for submitting the claim application. However, trying to claim compensation after a long unusual duration may cause the Tribunal to have reservations. Consequently, while there is no time limit for submitting a compensation claim, it should be completed as quickly as possible.

The Motor Vehicle Act

The Motor Accident Claim Tribunal was formed to adjudicate disputes under the Motor Vehicles Act of 1988. The Claims Tribunal's primary objective is to ensure that cases are tried speedily and that justice is done. The claimant should submit their claim on time. According to Section 173, Claims Tribunal appeals will be heard in the High Courts. Appeals must have been lodged within 90 days of the date of the judgment. If the claimant is late in submitting his appeal, he must provide a plausible reason for the latency. The appeal will be heard if the Court approves it. The appeal will be rejected if the amount in conflict is less than Rs10,000/-.The Motor Accident Claim Tribunal supervises cases involving death, property damage, or personal injury. Claims can be submitted to the appropriate Claims Tribunal. High courts from various states oversee these Tribunals.

Penalties and offences there under the Act of 1988 According to Section 181 of the act, if a person drives a vehicle without a license or before having reached the age of majority, he may be penalized up to Rs 5000/- or imprisoned for up to three months, or both.

The Claims Tribunal may grant claims to the claimant in the following situations  according to Section 165(1) of the Motor Vehicles Act, 1988:

  • When an individual dies or is injured as a result of an accident
  • When a third party's property is destroyed as a result of the accident
  • When such accidents occur as a consequence of driving a car

The Supreme Court established guidelines in National Insurance Company Limited v. Pranay Sethi for determining the amount of compensation awarded by the offender to accident victims who are self-employed, have a regular wage, or have a fixed salary. The Court believes that "just compensation" should be based on reasonableness, fairness, and equity.

The following parameters were implemented in response to the decision in Sarla Verma v. Delhi Transport Corporation:

  • If the dead had a secure job and were between the ages of 40 and 50, 50% of his annual pay would be added.
  • If the person who died were over 50, there would be no inclusion.
  • If the dead person had a fixed salary or was self-employed at the time of his death, his income was to be considered.

This evaluation of compensation in the event of a car accident death was later discussed in Pranay Sethi's case. The Court determined that only giving an addition to the deceased who had a permanent job was inappropriate. It should be stretched to others as well. "To have the perspective that he (self-employed person) is likely to remain stationary and his income to remain constant is contrary to the basic concept of human behaviour," the Court stated. Furthermore, the Court stated that there is a lack of uniformity when Claim Tribunals use different evaluation methods. As an outcome, when assessing compensation, it is desirable to implement the "principle of standardization," which was used in this case to evaluate the foreseeable prospects of victims killed in car accidents. A new group was also established for those who died while self-employed or on a regular salary.

The individual who files the claim petition must show that the respondent was negligent. It is crucial to prove that he is lawfully accountable for his actions and is at fault for them. Because there is no precise definition of negligence for the reasons of such a proceeding, it would usually mean a violation of obligation caused by an omission directed by a rational man on some grounds that he would normally do or be bound by law to do because of the behaviour of the public interests, or through doing things that a reasonable or considerate man would not do.

The Supreme Court specifies "rashness" as "risking a dangerous or recklessness act with the knowledge that it is dangerous and may cause serious harm." The hazard of committing such conduct with carelessness or indifference to the implications is criminal in such a case." The Supreme Court defined 'negligence' as "the inability to do something with reasonable and responsible means conferred by the considerations that ordinarily regulate human affairs, or doing something that reasonable and prudent means guided by similar considerations would not do."

Conclusion

The issue emerges because payment is to be made in the event of a child's death, even though the child earns nothing and may study. As an outcome, parents cannot be expected to rely solely on their children in such issues. Nonetheless, the parents will endure the loss of their child and receive to be paid fairly for it. The Supreme Court ruled in R.K. Malik v Kiran Paul that claims for the child's future prospects should be permitted in addition to financial damages. In the case of Lata Wadhwa v. State of Bihar, where the accident occurred on March 3, 1989, and many people, including children, were killed in a crash, the Court awarded significant claims.

The Court categorically stated that the children who died were all attending an expensive college or school, had excellent prospects, and came from upper-middle-class families; however, the higher claims awarded cannot be said to be for the adversity of life and the misery and grief endured as a result of the destruction of life as a result of financial state. To receive acceptance for its use, the multiplier method was noted. In the case of children aged 5 to 10, the Court ruled that "a sum of Rs.1.50 lakhs was awarded towards pecuniary compensation and a sum of Rs.50,000/- was awarded towards 'conventional compensation." Compensation of Rs.4.10 lakhs was awarded in the case of children aged 10 to 18 years, including "conventional compensation."

Legislation is passed to help the general public. The Motor Vehicles Act of 1988 was passed to prevent accidents; it is an important law that must be adequately enforced. As a result, the government and the general public must work to see it through. Every person must ensure that he does not infringe its provisions because an accident results from an individual's behaviour.

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Frequently Asked Questions

LegatoApp is a legal tech company that creates technology developments to make the legal industry easy for lawyers. One of the products of LegatoApp is to create an aggregation platform that hosts legal professionals on an interactive online platform that connects its Clients to the legal professionals from pan India in order to provide the Client with adequate legal services with the help of tech and non-tech features.

You are required to fill a form on the dashboard,and the support executive will get back in order to complete the formalities.

No, we are not a Law firm.

There is no registration fee for the initial basic Sign Up, but there are curated paid packages for lawyers that entails a list of services provided by LegatoApp.

In the current pandemic situation, it is vital to have a recognized digital presence that allows you to interact and build your clientele at your home's ease.

LegatoApp will helpprovide you with visibility, increase your recognition, and provide a better reach to build your clientele.

We are not a marketing platform; we do not levy any advertising fee. We cannot guarantee any amount of work, as the work you get depends on the level of experience and on the selection of a lawyer by theClient, based on the consultation taken up by the Client.

  • Call Consultation
  • Video Consultation
  • Face to Face Consultation

It entirely depends on you; you can offer a free consultation or charge a fee for it.

It depends on the matter of the Client. Generally, consultations range between 30 minutes to 45 minutes.

The algorithm of LegatoApp tries to geographically categorize the clients in order for better visibility and access.

You are required to have 2+ years of experience, and you should currently be in practice.

Law firm – multiple partners can register on individual capacity

Yes, the partner of the lawfirm can register with LegatoApp in an individual capacity.

In case there are multiple partners, all the partners can register on an individual basis.

  • You should provide LegatoApp with accurate details which will assist in speedy authentication of your profile,
  • Make sure your profile is descriptive in order to achieve an edge over other profiles,
  • You should update your profile on a regular basis.

You are required to mention six categories in order to receive a broader client reach.

Considering it is a digital platform, you may receive a clientele outside of your geographical boundaries based on the Client's requirement.

You are the sole decision taker of the fee to be levied to the clients. You are required to mention LegatoApp of these charges at the time of client handover.

No, we do not charge any fee for showcasing your profile. LegatoApp is not a marketing/advertising platform; we simply try to meet with the client requirements in order to provide them with a lawyer based on these requirements.

There is no minimum time; you can opt-out of the services at any time. You can contact us at Support@legatoApp.com.

Yes, lawyers can Sign Up on LegatoApp as well. There may be certain times that you as a lawyer, would be required to transfer a case/ matter to another lawyer.

In case a lawyer is unable to work on a particular case, we will assign that work/case/matter to another lawyer. However, any work that is delegated to a lawyer should be done through and by LegatoApp only.

You can consult a Senior Counsel through LegatoApp for an added remuneration to be paid for the Senior Counsel's services.

We have a certain reach in the legal industry for the research papers and article we post, and you can post such research papers and articles for an additional cost on our platform.

This is a required step for the authentication of the lawyer.

You can email us at Support@legaotapp.com or call us at 7738071611 or WhatsApp us on 8692051611