Can I transfer the property (flat) in absence of sale deed? My father purchased a house from a builder in 1971. However, he was not well read and did not know what documentation was needed so we do not have either a Sale deed or title or anything that shows that we are the owner of that property. My father died a few years ago and now I want to get the house transferred to my name. However when I applied for the title transfer, the society says that as per their documentation the house still belongs to the Builder.
Builder is a nice person and is willing to help out in any way we need but he does not know what needs to be provided to the Society to complete this. I presume we should not have a sale deed created because I am not buying it. Builder does not have (lost/misplaced) a title deed. How can I initiate a title transfer in this case? What document should I get from the builder so that the society can recognize me as the legal owner?
Your father and the builder both failed to execute the sale deed of that flat. There is no dispute that the builder had sold that flat to your father because still the builder is recognising your ownership on the flat.
The flat owner’s society also does not challenge your ownership. Your father’s ownership of the flat is undisputed. But in absence of sale deed it is not possible to substitute the name of legal heirs in the property papers.
Therefore, the question is how to bring on record the name of legal heirs of deceased owner in absence of deed of transfer i.e. sale deed?
Transfer of property in absence of sale deed
On the basis of adverse possession you can transfer the property in your name without having a sale deed. You should file a civil suit for the declaration of title. In absence of a sale deed you can claim ownership on the ground of adverse possession. The possession of your father was peaceful, continuing from 1971 and was in knowledge of the builder.
According to Article 65 of the Limitation Act 1963 a person (plaintiff) can take a plea of adverse possession for possession of immovable property or any interest therein not hereby otherwise specially provided for, after lapse of 12 years when the possession of the defendant (owner) becomes adverse to the plaintiff.
In Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 the Supreme Court has defined the meaning of adverse possession as “Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed.”
The builder has never disputed your father’s title since 1971. It proves that the builder impliedly accepted the ownership of your father. After lapse of twelve years, i.e. in 1983 your father accrued the right to claim ownership on the ground of adverse possession against the builder.
You, as a legal heir, have the right to claim ownership on the ground of adverse possession. Hence you should file a civil suit for the declaration of title. The court, through the decree, grants title in your favour. Through the aforementioned process you can get ownership in that flat. Thereafter easily get transfer of property in your name even in the absence of sale deed.
