Specific Relief Act (SRA)
Specific Performance of an Agreement to Sell: A Complete Note
The commonest specific-performance suit in the courts is the buyer's suit on an agreement to sell land. This note gathers, in one place, everything such a suit turns on: the ingredients the buyer must plead and prove, the effect of the form of the agreement, the limitation period, and the recurring complications, from co-owners and legal representatives to agreements subject to a permission or sanction. It draws together the rules from Sections 10, 15, 16, 19 and 22 as they apply to the everyday agreement to sell.
Figure: The seven ingredients of the suit, the effect of the form of the agreement, limitation, and the recurring complications
1. The Seven Ingredients of the Suit
What the buyer must establish ▪ A valid agreement to sell. A concluded, lawful agreement to sell exists between the parties. ▪ Execution proved. The execution of the agreement is proved, by the document and by evidence. ▪ Certainty of property. The property to be sold is described with certainty. ▪ Certainty of consideration. The sale price, and the mode and time of payment, are certain. ▪ Earnest or advance shown. Any earnest money or advance consideration paid is proved. ▪ Readiness and willingness. The plaintiff was, and remained, ready and willing to perform his part, as Section 16(c) requires. ▪ The defendant's breach. The defendant has refused or failed to complete the sale. |
2. Limitation: Article 54
The three-year rule ▪ The period. A suit for specific performance is governed by Article 54 of the Limitation Act: three years. ▪ When it starts. From the date fixed for performance; or, where no such date is fixed, from the date on which the plaintiff had notice that performance was refused. ▪ Why it matters. The date fixed for performance is therefore doubly important: it can start limitation running, and it bears on whether time was of the essence. |
3. The Form of the Agreement Does Not Decide Enforceability
- Registered, unregistered or oral. All three can be specifically enforced, if proved. An agreement to sell does not itself transfer title (Section 54 of the Transfer of Property Act), so it need not be registered to be sued upon.
- The burden of proof rises. An unregistered agreement carries a heavier burden of proof than a registered one, and an oral agreement is the hardest of all to establish. What the court looks for is proof of a concluded, certain bargain, not the form in which it was recorded.
4. Recurring Complications
Situation | The position |
|---|---|
Against legal representatives | The benefit and burden of a sale agreement pass to the seller's heirs; the buyer may enforce it against them, to the extent of the estate |
One co-owner's agreement | A co-owner can agree to sell only his own undivided share; the buyer gets performance of that share, not the whole, unless all co-owners joined |
Subject to permission or sanction | Where the sale needs a permission, sanction, government approval, land-use conversion or clearance of an encumbrance, the seller must take reasonable steps to obtain it; performance follows once it is obtained |
Joint family property | The karta may sell for legal necessity or benefit of the estate; otherwise the agreement binds only his own share |
Power-of-attorney holder | An agreement by a power-of-attorney holder binds the principal only if the power authorised the sale; the buyer must check the authority |
With possession and refund | The buyer may claim possession with the decree under Section 22, and, in the alternative, refund of earnest money if performance is refused |
5. Specific Performance and a Subsequent Sale
- The later buyer. A sale to a subsequent purchaser does not defeat the earlier agreement unless that purchaser is a bona fide transferee for value without notice (Section 19(b)); and a sale during the suit is caught by lis pendens under Section 52 of the Transfer of Property Act.
6. Frequently Asked Questions
Q. What must a buyer prove to enforce an agreement to sell?
A. A valid, concluded agreement, its execution, certainty of the property and price, any earnest paid, his own readiness and willingness under Section 16(c), and the seller's breach.
Q. Can an oral or unregistered agreement to sell be enforced?
A. Yes, if proved. An agreement to sell does not transfer title and need not be registered to be sued upon, though an oral or unregistered one carries a heavier burden of proof.
Q. What is the limitation period for such a suit?
A. Three years under Article 54, from the date fixed for performance, or, if none is fixed, from when the plaintiff had notice that performance was refused.
Q. Can one co-owner's agreement be enforced?
A. Only as to that co-owner's own undivided share, unless all the co-owners joined in the agreement; the buyer cannot get the whole property on one co-owner's agreement.
SEO METADATA URL slug: specific-performance-agreement-to-sell-complete-note SEO title: Specific Performance of an Agreement to Sell: A Complete Note Meta description: A complete note on specific performance of an agreement to sell land: the seven ingredients of the suit, registered, unregistered and oral agreements, Article 54 limitation, co-owners, legal representatives, and agreements subject to permission. Keywords: specific performance agreement to sell, ingredients of specific performance suit, Article 54 limitation, oral agreement to sell, co-owner agreement to sell, agreement subject to permission |