The first thing to establish is what the seller actually did before he died, because the two situations that look similar have completely different remedies.
If the deed was already signed
This is the stronger position by some distance and it is often missed. Section 32(b) of the Registration Act, 1908 allows a document to be presented for registration by the representative or assign of a person executing or claiming under it. Section 35(1)(c) then says that if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the officer shall register the document. The corresponding refusal provision, Section 35(3)(c), applies where the representative denies the execution.
Two clocks matter. Section 23 requires presentation within four months from the date of execution of the document, which here is the date the deceased signed it. Section 34(1) has a proviso allowing registration where the persons do not appear in time owing to urgent necessity or unavoidable accident, provided the delay in appearing does not exceed four months, on payment of a fine that can extend to ten times the proper registration fee. So move quickly, and do not let the mourning period consume the period the statute gives you.
If there is only an agreement to sell
Then nobody has conveyed anything yet. Section 54 of the Transfer of Property Act, 1882 says a contract for sale does not of itself create any interest in or charge on the property. What you hold is a contractual right, and Section 37 of the Contract Act carries that right against the representatives. The willing route is that all the legal representatives execute the sale deed and register it, reciting the agreement and the death.
The word that does the work is all. Every person who inherits a share has to join, and a deed executed by some of them conveys only their shares. That is why the exercise begins with establishing the succession rather than with drafting, and why our note on whether one legal heir can sell jointly inherited property is the first thing to read. Who inherits, and in what shares, is set out in the intestate succession answer.
Four complications that change the drafting
- A will exists. The executor or the legatee deals with the property. Probate is no longer compulsory, since the provision that required it was omitted from the Indian Succession Act, but a bank or a purchaser may still ask for it and pending matters continue under the old law.
- One of the heirs is a minor. A natural guardian cannot deal with the minor's undivided share as though it were his own, and court permission is the safe route. Our note on selling a minor's property sets out the pitfalls.
- One heir is abroad or untraceable. A properly drawn and attested power of attorney can solve the first. The second usually cannot be solved without a suit.
- The heirs disagree among themselves. Your contract is with the estate, not with the faction that wants to sell, and a partial conveyance buys you a partition suit rather than a house.
If they refuse
Section 19 of the Specific Relief Act, 1963 allows specific performance to be enforced against either party to the contract and against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 15(b) allows the representative in interest of a party to obtain specific performance, so the position works in both directions. Since the 2018 amendment, Section 10 reads that the specific performance of a contract shall be enforced by the court subject to Sections 11(2), 14 and 16, so this is no longer a discretionary relief.
Limitation is the real risk and it does not pause for a death. Article 54 of the Schedule to the Limitation Act, 1963 gives three years for a suit for specific performance, running from the date fixed for the performance, or, if no such date is fixed, from when the plaintiff has notice that performance is refused. A buyer who waits politely for a grieving family to make up its mind can find that the clock ran while he waited.
- The death certificate, and the date, against the date fixed for performance in the agreement
- A legal heir certificate or the succession position, establishing every heir and not only the cooperative ones
- Whether a will exists, and if so who the executor is
- Whether the seller had already executed the sale deed, and its date, which starts the four month clock
- Proof of every payment made to the deceased, with the mode and the date
- Your own readiness and willingness, evidenced continuously, which Section 16(c) requires you to prove
- An Encumbrance Certificate taken after the death, since heirs sometimes deal with the property before the buyer moves
What settles most of these matters is not the litigation but the arithmetic of it. Heirs who are told that the contract binds them under Section 37, that specific performance is now mandatory rather than discretionary, and that the alternative is a suit in which they will be defendants, usually complete. Heirs who are approached with a request rather than a position usually do not. The parallel question of a seller who is alive and simply refusing is in the specific performance answer.