PART – 1:- ANSWER:-
Yes, the proprietor intention to sell the property. The contract is applicable to both buyer and seller. Happy interested to buy the property and Sam intention also to sell the property to happy. Sam also agreed to sell his property to another person sly. The certificate of property transfers on sly name because he paid full amount of the property. Sly gets property legally because there are no objections to the Happy. Happy fails to get written contract. The agreement is vey important to both parties because the contract is must for every transaction. Happy for get this contract and he also paid ten percent advance to the proprietor. The buyer also knows about this issue and he is also ready to purchase the property. The property is valuable in that area and buyer interests to buy that property. He knows the payment of advance another party and he also known this is not valuable. The issue is not very serious because Happy fails to get the contract but the issue raises between proprietor and Happy of advance payment only other wise there is no issue about this property. The proprietor has a right to sell a property to any body and gets money to purchaser.
1) PARTIES: – The parties are interested to buy and sell. The purchaser expresses interest to that property and vendor interests to sell that property.
2) DOCUMENTS: – The required documents are address proof or passport is useful to prepare drafting for the purpose of the registration. The preparation of original documents is necessary before complete registration. The transfer of documents from one person to person
3) TRANSFER: – The transfer of property person to another person is quite natural on the registration process. The important point is genuinely of the transfer because the family members acceptance also important in the registration otherwise the purchaser lose his money. Generally the family person has a right on the property. The right comes from family because the ancestral property gives power to the grandsons also so before enquiry is important to the purchase of property. The complete process transfers on the name of sly. The proprietor transfer total property in the name of sly. The documents play a key role on this situation. If we do not identify the documents is original or fake, there is no option for a transfer.
4) EVIDENCE: – The evidence is must to complete this process because the evidence proof of that registration is must, without evidence the registration process failed. The two persons evidence is enough, the evidence is useful after any issues rise in between vendor and purchaser.
5) REGISTRATION: – This is the final stage of the contract and after completion of the completion of the registration there is no need to maintain a relationship with each other. There is no litigation in this process because the vendor and purchaser came to registration after the settlement of litigations.
PART-B: – ANSWER:-
Yes, this is not a valid contract. The contract is must be genuine other wise the contract is no value in the law. The topic explains between the relationship of buyer and fraudulent vendor. The vendor became a fraudulent person because he creates a fake document and sold the property to third party. Generally the process of registration is to complete these persons and take care of forgeries and false documents is very important other wise the purchaser lose their money and time , so beware of the fraudulent persons which is not useful to purchase the property. Genuine is forever but forgery gives punishment.
1) PARTIES: – There are two parties: A) Purchaser and B) Seller.
The seller must be a competent person. He must posses the property. He must possess good title on the property. If he does not possess his own property, then he must possess the authority to sell on the property. He must not be a minor, or a person of unsound mind. He must be a person having capacity to contract. Purchaser may be any person, who is not disqualified to be a transferee under the transfer of property. A minor is a competent person, if the sale transaction is conducted by his guardian, and the consideration is paid, and that sale transaction is for the welfare of minor and for the movable property, registration is not required, simply delivery of possession is sufficient and even if it is reduced into writing, registration required and also it is useful delivery of possession.
2) PRICE: – The price is the essential feature for sale. The price is fixed by the parties before the conveyance took place. Price is of the essence of a contract of sale, and unless the price is fixed, there is no enforceable contract. The price is fixed by the parties with their own consent and under prevailing market position and other circumstances and the payment of price is not a necessary to the completion of the sale. The price must be paid in money, or promised, or part paid and part-promised. If the intention is that property should pass on registration, the sale is complete as soon as the deed is registered, whether the price has been paid or not but that price must be fixed. The purchaser is entitled to sue for possession although he has not paid price. The money must paid after completion of registration there is only one chance is advance payment.
3) TRANSFER OF THE PROPERTY: – One fraudulent person has done a forged document and change original name to fraudulent person.
4) FORGERY: – The original document became forged under this process. The duplicate document creates false information to the parties. The fraudulent person deals to set the property to sell another person. The forged document is became original for the purpose of transfer of title.
5) FRADULENT TRANSFERS: – The law favors the principles of natural justice. It does not allow the fraudulent transactions. It does not allow a person suffers with the fraudulent transfers. If the transferor and transferee collude with each other with the ill-intention to defeat or delay the creditors of the transferor, such actions are called as fraudulent transfers. If the transferee participated in the transferors intention to defeat and delay creditors, the transfer can be set aside even it it is supported by consideration. If the transferor had no intention of delaying or defrauding creditor, it is immaterial that the transferee had not paid any consideration. The primary object of this section is to to avoid fraudulent transfers done with ill intention to defeat and delay creditors, and the collusion between the transferor and the transferee. If there is no such ill intention in the mind of transferor and transferee lies upon the creditor, who is alleged to be defeated or delayed by such act. If there is no intention on the part of the transferor to defeat or delayed the creditor, then even the transferee paid very less consideration, or did not pay any consideration, it could not be said fraudulent transfer. The fraudulent transfer is not forever, this is for limit period. The registration is not valid because with out original documents, this complete process failed.
PART- C: – ANSWER: –
1) TAX EXEMPTION: – Charmain has a right to get the exemption of tax because she is ready to paying off the tax. The tax is not applicable to the Charmain because she is doing steward job and she is not getting more income in this job. The tax is exemption for her in this situation. The bank account is opened in London. The payments received in Sydney. The client spends lot of time in other country. The client is well known person in Sydney. The rubber band airlines are very famous in Australia, London and Singapore.
2) BANK ACCOUNT: – The client opens bank account on other country and she is living in another country. There is no issue about the bank account.
3) DONATION OFFER: – Gift is the transfer of the property made voluntarily and with out consideration by one person. Thus the donor is the person who gives this property on gift to another. The donor must possess some movable and immovable property. The donee is the person who accepts the gifts. The donee must be having the capacity to accept the gift. Sometimes the gift may be made to the minors also. Gifts made to minor are also valid. The accepted by or on behalf of the donee shows that guardian of the person can the gift on behalf the minor also, but donee must alive at the time of gift.
4) MORTGAGE: – There are two parties. The transferor is called mortgagor, and the transferee is called a mortgagee. The mortgagor and mortgagee must be competent persons to contract. The term mortgagor includes her heirs, executors and admistrators. The mortgagee includes his heirs, executors and administrators. It is very common in every kind of mortgage. There must be a transfer of interest. The interest must be made in specific immovable property. There should be immovable property and that property must be distinctly specified. There must be sufficient description of mortgaged property in the mortgage deed and it must be identify and the mortgage must be supported by consideration. The consideration of a mortgage may be either, money advanced or to be advanced by way of loan, future debt, the performance of an engagement giving rise to pecuniary liability. A mortgage is created for the purpose of securing a debt or other obligation. The mortgagor is liable to pay the principle amount of the loan and its interest to redeem this property.
The mortgagor retains the possession of the property with care, and the mortgagor undertakes to repay the debt. The personal liability is very essence of a simple mortgage. The mortgagor personally covenants to repay the mortgage money. The mortgagor also undertakes to sell the mortgaged property to sell it for the mortgage money, in case, if he fails to repay it, where there is a personal covenant and a clause of hypothecation entitling the lender to bring the property sale for the satisfaction of his debt, then the transaction is a simple mortgage.
The mortgagor must ostensibly sell the immovable property, there must be a condition that either on the repayment of the money due under the mortgage on a certain date the sale shall become void or the buyer shall become absolute. The condition must be embodied in the document which effects or supports to affect the sale. The essential characteristic of this mortgage is that on breach of condition of repayment with in a stipulated period, the transaction is closed and becomes one of absolute sale to be enforced by the process known as foreclosure and it is also to be noted that the sale does not becomes one of the absolute sale to be enforced by the default of payment on the due date by itself until there is a decree absolutely depriving the right of redemption of the mortgagor. The usufructuary mortgagor is no personal liability and the property mortgaged shall be delivered to the mortgagee, and she is entitled to enjoy the benefits of such property, until it is redeemed and menses profits delivered from the told property are treated as interest of the debt. The mortgagor and mortgagee may determine such amounts from time to time.
It is an equitable mortgage. The mortgagor should deliver documents of title to immovable property on which the security is intended to be created to the creditor or his agent. It is not necessary that the property to which they relate should be situated with in one of the towns mentioned in the clause. It is enough if he hands over the title deeds to the creditor in that town. No registration is compulsory to create mortgage by deposit of title deeds, but there must be a document, reducing the terms of the mortgage in writing. There is territorial restriction and the mortgagee has a remedy by a suit for sale of the mortgaged property. It is a combination of simple and usufructuary mortgages, to repay the installments with interest or to redeem at any time. The mortgagee to remain in possession and the mortgage with possession with a stipulation that the transferee should appropriate the rents and profits for a specified term of years and then give back the property. The mortgage may with possession containing also a covenant to pay the principal and the interest.
The mortgagor has the right to redeem his property from mortgage by paying the debt. The right to redeem is an incident of a subsisting mortgage and is inseparable from it so that the right is extensive with the mortgage itself, the right is known as the famous maxim “once a mortgage always mortgage”. The right of redemption is also known as “equity of redemption”.
5) LEASE: – A conveyance or grant of the possession of property to last during the life of a person, or for a term of years or other fixed period, and usually with the reservation of a rent and it is essential that a lease shall specify the period during which the lease is to endure, and the beginning and end of the term. The subject matter of a lease must be immovable property. The immovable property has been like land, house, minerals and also the benefits to arise out of land such standing trees etc. The partial transfer means originally any transferor succession of a right, but now it gives the meaning to grant a lease of lands or other hereditaments. A transfer of a right to enjoy land for a term or in perpetuity in consideration of a price paid or promised or services or other things of value to be rendered periodically or on specified occasions to the transferor. If ownership is transferred, with or without restrictions, it is not a lease. In a lease, the ownership always lies with the lessor, but the lessee enjoys it for a fixed period by paying consideration for such enjoyment. The lease is not a mere contract, but is a transfer of an interest in property and creates a right in rem, the duration of lease period shall be determined by the both parties. It is not, however, necessary that the term of the lease should be for a fixed period. The consideration is either premium or rent. Premium is the price paid or promised in consideration of the partial transfer. The consideration maybe rent plus premium as well as rent alone or premium alone. The price is called premium. The money, share of crops, service or other things to be rendered is called the rent. The rent includes the water taxes, electrical charges etc and rent is paid periodically, i.e. monthly or yearly. Generally the house rents are paid monthly, and the agricultural rents are paid yearly. The mode of payment, the quantity of the amount shall be fixed by the lessor and lessee in this agreement.
6)FORFEITURE:-The forfeiture in a lease provides that on the breach of certain covenants the lease shall be at an end and the lessor may re enter and equity relieved against forfeitures designed to secure the performance of some collateral act, example:- the payment of rent, when the court could give by way of compensation all that was required. A lessor cannot enforce a forfeiture and re entry unless he serves on the lessee a notice specifying the breach and requiring the remedy, and requiring compensation in money and breach of a covenant not to deal with or dispose of the land leased formerly operated as a forfeiture, but now the tenant may apply to the court for relief and the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and full costs of the suit and gives security as the court thinks sufficient for making such payment within limited period. The orders a decree for ejectment pass an order relieving the lessee against the forfeiture, and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
CASE LAWS:-
1) Butcher V Lachlan Elder Realty pty Ltd (2004) HCA 60.
2) Archer v Stone (1898) 78 LT 34..
3) Mein hard v Salmon & Georgieff v Athans (1981)26 SASR 412 at 415.
4) D’Orta-Ekenaike v Victoria Legal Aid (2005) HCA 12.
5) Williams v Bulat (1992) 2 QdR 566.
REFERENCES:-
1) Stone,M.,2012, Sackville and neave Australian property law, vol.39, pp.25-28.
2) Wappett,C.,2013, Essential personal property securities law in Australia, vol.29, pp. 1-5.
3) Cremean,D., 2011, Brooking on building contracts, vol.6, pp.55-58.
4) Newton,G.,2012, conveyancing and real property legislation, vol.16, pp. 8-9.
5) Duggan,A.,2012, Australian personal property securities law, vol.19, pp. 16-19.
6) Mirzai,S.,2012, personal property securities act, vol.6, pp. 42-46.
7) Cameron,D., 2012,property law second edition, vol.32, pp. 24-26.
8) Gray,J., 2012, property law in NSW, vol. 12, pp. 12-14.
9) Foster,N., property law in third edition, vol. 14, pp. 22-24.
10) Hepburn,S.,2011, property cases, materials and analysis, vol.9, pp-18-19.
