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Article Published in the Express Magazine Dated
March 17, 2002
General Attorney : Rajiv K. Luthra
I have foster parents, who have not legally
adopted me, for certain personal reasons. Will I
be treated legally as a part of the family?
Jitender Gupta, Chennai
The word “family” is a word of great flexibility
and is capable of different meanings. In legal
parlance, the term “son” is itself a flexible term
and may not be limited to the direct descendant.
Its true meaning, will also depend upon the
context in which it is used.
A “foster son” who is not the real son or direct
descendant of a person after his marriage need not
be the real legitimate child of the person who
brings him up.
As held by the Hon'ble Supreme Court, when a
"foster child" is brought up by a person a lot
will depend not only on the devotion with which he
was brought up, the love and care which he
received from that person, but also on the
treatment by that person which should be such as
though the foster son were the real son. The
“foster son” would then certainly be a member of
the family.
Although, not in every case will a son who is not
the real son of a person be treated to be a member
of a family, this being dependent upon the facts,
circumstances and the context in which it is
sought to be used.
I intend to buy a flat in a building, which is
still under construction. I have heard that
sometimes these builders sell the same flat to
more than one interested buyer. How can I secure
my rights ?
Ashley Arora, Delhi
The problem of multiple sale of a flat is well
known. In cases where the immovable property or
any goods for sale can not be transferred at the
time of contracting, the parties may enter into an
“agreement to sell”. An agreement to sell is a
contract where the property in the goods does not
pass in pursuance of it till some future time or
until some condition is fulfilled. So far such an
agreement to sell did not require compulsory
registration, which made it very easy for property
dealers to sell the flat more than once. Now the
Government of India vide Gazette Notification
dated 24th September 2001, has effected important
amendments regarding agreement to sell in cases of
immovable property. With the said amendment the
new Section 17 (1) (A) of the Indian Registration
Act, 1908 has been introduced, making contracts to
transfer for consideration of any immovable
property including agreement to sell compulsorily
registrable.
As it was earlier, Section 53 (A) of Transfer of
Property Act, 1882 ("TPA"), protected the
transferee by giving him a right of possession of
the property, if the transferee as part
performance of the contract had taken possession
of the property and had done some act in
furtherance of the contract and was willing to
perform his part of the contract, even in cases
where a contract for immovable property though
required to be registered, was not registered. The
amendment to the section has done away with this
protection by deleting the words “the contract
though required to be registered has not been
registered” from Section 53- A of TPA.
Vide the above notification, the documents
containing contracts to transfer for
consideration, any immovable property including
agreement to sell for the purpose of Section 53
(A) of TPA, are now required to be registered if
they have been executed on or after 24th
September, 2001.
You should carefully check all the documents of
title of the builder. Further you may conduct a
title search of the property with the
Sub-Registrar’s office to find out whether the
title of the seller is clear and also to know
whether any other sale deed or agreement to sell
has been executed in respect of the property in
question.
Therefore, to secure your rights in respect of the
property you may enter into an agreement to sell
and register it with the Sub-Registrar’s office.
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