Rajiv K. Luthra: Your Q, His A

Generally speaking, the seller of immovable property is bound to give the buyer possession of the property at the time when ownership passes unless otherwise agreed. From your query it appears that you have entered into an agreement to sell, which is only a contract that a sale shall take place at a future date and not a sale, wherein the ownership is transferred, once the sale deed is executed. This means that you have a right to be given possession of the flat only if you have executed a sale deed unless otherwise agreed in your agreement to sell. As regards taking forcible possession from the seller, the same is not advisable and you must take action provided by law. If you have not entered into the sale deed as stated above, you need to file a suit for execution of the sale deed and delivery of possession. The tribunals set up under the Consumer Protection Act do not have jurisdiction for specific performance of a contract. Thus, you need to file your case in the Civil Court as stated above.

Furniture and fixtures are moveable property falling under the Sale of Goods Act. You may have to seek relief of delivery of possession from a court of law, maybe in the same civil suit or otherwise depending upon the facts and circumstances. However, the burden of proof shall lie upon you and you will need to prove that the furniture and fixtures were sold, even though it is not mentioned in the Agreement. In case you break open the flat and take possession by yourself, this would be intentional intrusion on land and you may be subject to liability for trespass under tort law.

In addition, breaking into the flat might result in criminal prosecution being initiated for theft or criminal trespass or both depending upon the facts and circumstances. Theft, inter alia, requires moving of movable property without the consent of the person and with the intention to dishonestly take it out of that person’s possession. Criminal trespass, inter alia, requires entering into someone else’s property with the intention to commit an offence or to intimidate, insult or annoy a person in possession of immovable property.

There is reason for doubt whether you have such intentions, since you would be acting in assertion of a claim of right. However, these questions might be matter of a trial, to be proved at a later stage of prosecution and till such time as they are proved to the satisfaction of the courts, you may have to face the prosecution and other consequences attached thereto. It is therefore, advisable that you resort to civil proceedings as stated hereinabove.

*My father has rented an office for his business. I am running my own travel agency in my father’s office without paying rent to him. Now the chairman of the Society from which my father has rented the office has asked him to pay a sub-letting charge. The reason he gave is that he considers that I am a sub-tenant and that two different businesses are being carried out from the same premises. Will my father need to pay the sub-letting charge?
— M.S. Pooja

First of all your father should check his agreement with the Society for any provisions regarding sub-letting or use of the office by third persons or use for purposes other than his own business.

Section 108 of the Transfer of Property Act deals with the rights and liabilities of the lessor and lessee in the absence of any provisions in the contract or local usage to the contrary. As per this section, a lessee may transfer or sub-lease his interest in the property. This means your father would be allowed to let you use the office without being obliged to pay any charges. However, a lessee must not permit another to use the property for a purpose other than that for which it was leased. Thus the question would be, whether the use of your father’s office for running the travel agency by you would amount to use for different purposes. This seems unlikely as you and your father both use the office for business purposes, (unless the specific business has been mentioned in the contract) for which the lease would have been granted. Please note that Section 108 of the said Act is no defense under the State Rent Act, which may have provisions differing from the Transfer of Property Act.