It is not uncommon for us to come across publication of notices in newspapers concerning 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 exercise 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 not only in uncalled for litigations but also to financial strain.

Public notice
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.
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 newspapers 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 an English language daily and the other in a vernacular  language daily, both of which have circulation in the area where the property is situated. The notice acts as an intimation 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 purchaser, 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 along with documentary proof within a stipulated time.

The notice shall also indicate that in case no objections are received within the stipulated time, the sale process will be proceeded with treating the property as unencumbered with a clear rider clause that objections received after the stipulated time  will not be acted upon. However, the public notice would serve as an intimation to the public that the purchaser has a bona fide interest in the property and the interested parties can file objections, if any, for the said sale transaction. The purchaser in his own interest has to get the objections scrutinised by an experienced advocate having knowledge in property matters so that he can avoid the likely litigations  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 thereto, which the seller is and the purchaser is not aware of and the buyer could not with ordinary care discover such defect.  Therefore, it is advisable that the purchaser of the property should verify and make a search of all the relevant documents and exhaust 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.

Deemed notice
The Transfer of Property Act, 1882, puts some onus on the purchaser and in certain cases the purchaser is deemed to have notice of encumbrances. 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 to 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 II 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 a 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) Constructive notice, where the 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 he communicates it to his principal or not.

Purchaser’s obligation
It is obligatory on the part of the purchaser to make sure that the vendor has a clear marketable title of the property and 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 documents. It is obligatory on the part of the purchaser to verify the title of the property as recorded in registers of jurisdictional sub-registrar’s office. Registration of a document operates as notice and the actual possession of the property by a person other than the seller also operates as notice. 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 ReliefAct 1963  recognises 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 know as to whether there is any claimant over the property under consideration and if any objections to the transactions 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.

The author is an advocate who specialises in property matters.  He can be reached on E-mail : editor@realestatereporter.net  Ph: 25526644/45.