case study transfer of property act

Transfer of Property Act: Notes, Case Laws and Reading Materials

Subject-wise Law Notes Transfer of Property Act
December 9, 2023

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According to this section, transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and other living persons.

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This article provides Transfer of Property Act notes with case laws . The Act provides provisions for transfer of movable or immovable property. As a learner, you can consider it as a free, online, and self-placed course. As a competitive exams aspirant, you will find it perfect for Judicial Service Exams, UPSC CSE Law Optional, etc. And as a reader, this article on Transfer of Property Act notes is sufficient for you to learn or research on Transfer of Property Act!

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Meaning and Definition of Property

General rules and doctrines regarding transfer of property, sale under transfer of property act, mortgage under transfer of property act, lease under transfer of property act, gifts under transfer of property act.

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For case briefs and analysis, click here .

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Property Law - Notes, Case Laws And Study Material

Get concise property law study materials, case laws, and notes for in-depth legal knowledge..

Property Law- The Transfer of Property Act came into existence in 1882 . Before that, the transfer of immovable property was governed by English law and equity principles. This Act deals with the transfer of property inter vivos , i.e., a transfer between living persons. It contains the transfer of both movable and immovable property, but a major portion of the enactment applies to the transfers of immovable properties only.

Legal Bites' study material on the property laws of India is divided into six modules and an additional section containing related articles. The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically.

Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of mortgage , lease and gifting .

Important articles and study material on Property Law – Click on the link to Read

Module 1: concept of property and general principles regarding transfer of property:.

Transfer of Property Act: Introduction and Important Definitions
Transferable Property
1000+ Detailed Questions MCQ Test Series for Competitions (Redirect to Law Aspirants)
Restraints on Alienation
Transfer to an Unborn Person
Rule against Perpetuity
Vested and Contingent Interest
Conditional transfer

Important Books and Practice Tests (Must Have)

EBC's Law of Transfer of Property by Vepa P. Sarathi, Mallika Taly

Module 2: General Principles Governing Transfer of Immovable Property

Doctrine of Priority
Transfer by Ostensible Owner
Rule of Estoppel
Doctrine of Lis Pendens
Fraudulent transfer
Rule of Part Performance
Actionable Claim

Module 3: Sale

Sale of Immovable Property: Explained As Under TPA, 1882
Right and liabilities of buyer and seller
Encumbrances And Court Sale

Module 4: Mortgage

Mortgage: Meaning, Explanation And Kinds
Rights and Liabilities of Mortgagor and Mortgagee
Marshalling, Contribution and Subrogation
Charge on Property As Explained Under Transfer of Property Act

Module 5: Lease

Lease: Introduction, Concept, Essentials and Conditional Leases
Rights and Liabilities of Lessor and Lessee
Determination of lease
Easement: Concept, Essential, Types | Explained
Difference between Lease and License

Module 6: Gift

Concept and Kinds of Gift
Universal Donee | Section 128
Exchange Explained As Under Transfer Of Property Act, 1882

Property Law Question Answer Series: Important Questions for Exams

1. Property Law Question Answer Series 1

2. Property Law Question Answer Series 2

3 . Property Law Question Answer Series 3

4. Property Law Question Answer Series 4

5. Property Law Question Answer Series 5

6. Property Law Question Answer Series 6

7. Property Law Question Answer Series 7

Your valuable feedback in the form of comments or any desired inputs is encouraged and always welcome. Every contribution toward a goal is valuable, regardless of how small it may be.

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Home » Articles » The Doctrine Of Part Performance: Part Performance Under Transfer Of Property Act

The Doctrine Of Part Performance: Part Performance Under Transfer Of Property Act

Reading Time - 9 minutes

by Varsha | Sep 14, 2022 | 0 comments

The Doctrine Of Part Performance: Part Performance Under Transfer Of Property Act

Introduction

The Indian legislation that regulates the transfer of property between living persons is the Transfer of Property Act 1882 . The legislation specifies provisions regarding what constitutes a transfer and the conditions attached to it. The legislation was enforced in India on 1 July 1882. A transfer of property follows the rule of Nemo dat quod non-habet, meaning that the transferee can transfer only those interests which he himself has to the transferee. The act of transferring property from one person to another, whether in present or in the future, is known as a transfer of property under the Transfer of Property Act. By transferring property, the transferor transfers all rights in the property, according to Section 8 of the Transfer of Property Act 1882 (The Act). There are several ways to transfer property ownership: 1) relinquishment 2) sale 3) gift; and temporarily by way of 4) mortgage 5) lease and, 6) leave and license agreement. People, on the whole, prefer to own their own properties rather than pay rent on someone else’s. Nonetheless, a lease is an alternative option that provides immovable properties for temporary use and can provide benefits such as low initial payments, tax savings, and low risk, among others.

The doctrine of part performance is based on the idea that when two people enter into an agreement in which one side allows the other to act in furtherance of the agreement, that person establishes equity and cannot later object to the agreement’s performance because the legalities were not completed. As a result, this doctrine aims to protect a transferee in cases where the transferor may be acting dishonestly by refusing to perform the contract. For example, suppose the transferor and transferee enter into a land transfer contract, and the transferee is given custody of the land according to the contract’s conditions. The transferor may still refuse to ratify the first sales agreement, instead entering into a contract with a third party in response to a greater offer, and then ejecting the first transferee from the estate. The concept of part performance recognises the possibility of such events and strives to protect transferees. While the concept of part performance has its origins in English law, it was given legal recognition in India in 1929 when Section 53A of the Transfer of Property Act, 1882 was added.

Ingredients For The Application Of The Doctrine Of Part Performance

Section 53A provides a benefit to a person who has a prior agreement in his favour, as well as possession of the land specified in the agreement. The provision prohibits the original owner or anybody claiming title under him from asserting any right of title or interest in the land indicated in the agreement. As a result, if his possession is threatened, the person claiming the benefit of the clause can only bring an injunction suit. His remedy is not confined to defending himself if a lawsuit is brought against him. He can also be a proper plaintiff if he demonstrates and confirms the Section’s requirements, as well as registration, as laid in the case of Ghnshyambhai Dhirubai Barvaliya v Rasikbhai Dhirubahi Ambaliya . The case of Gita Devi v Sobha Agarwal held that the Section’s protection covers a wide range of issues, including both facts and legislation.

1) Contract To Transfer An Immovable Property For Consideration

The primary criterion of this Section is that a contract must be written in order to transfer immovable property. It must be signed by the person to whom it is intended to bind, or by his agent on his behalf. This clause does not apply to the transferee under an oral agreement. For the purposes of Section 53A, however, any conditions of a previous oral agreement converted to writing can be used as held in the case of Parvathamma v A Srinivasan . Section 53A provides protection only in circumstances when the property is transferred under a contract. Because partition is not a transfer of property, Section 53A protection will not apply. Property must be transferred for consideration. This doctrine will not apply if the transfer is made without consideration. As stated in the case of SDP Sabha Baijnath Co-op Multipurpose Society Ltd v State of Himachal Pradesh because a gift, for example, is a transfer without consideration, this Section will not apply to such circumstances. Only transfers of immovable property are covered by this provision. The doctrine does not apply to a transfer of moveable property agreement. The Section will not apply to any provision allowing the owner to repossess a vehicle leased on a hire purchase agreement for non-payment of installments, as stated in the case of Hameed v Jayabharat Credit & Investment Co .

2) Contract In Writing And Ascertainable With Reasonable Certainty

The second criterion was also stated and reiterated in the case of Govind Prasad Dubey v Chandra Mohan Agnihotri is that the contract must be in writing and that the contract’s terms can be determined with reasonable certainty. The contract must also be signed by or on behalf of the individual requesting to reclaim possession. The contract must be signed by the transferee himself or by someone who has been officially authorised to sign on his behalf as held in Yadav Motors v Hitendra Kumar Ahuja. The Supreme Court did not consider a letter made by the property owner stating that he had agreed to sell his half portion of the land as a deemed agreement to sell in order to meet the Section’s criteria. It is not required for every last detail to be revealed in the writing. Even if it is not registered or attested, an unfinished deed of transfer is considered a contract in writing, but it must be signed by the transferor or his agent. Unregistered documents affecting the real property that is required to be registered under the Transfer of Property Act or the Registration Act may be used as evidence of a contract in a suit for specific performance, as evidence of part-performance of a contract for the purposes of Section 53A, or as evidence of any collateral transaction not required by a registered instrument. In the case of Routu Sivudunaidu v Pandranki Laksminaraynamma laid down, the transaction shall be void and this provision will not apply if parties execute an unregistered sale deed without first obtaining permission from the competent authority.

3) Part-performance Of Contract By Transferee, Transfer Of Possession Or Continuance In Possession

Another criterion is that the transferee either took possession of the property after the contract was signed or if he was already in possession, he must have continued to do so. Possession must have been taken or continued in accordance with the terms of the contract. This clause will not apply if the transferee has not yet taken control of the property, as stated in the case of Sardar Kamaljit Singh v Suresh Chand The fact that the transferee originally had possession but afterward lost it does not deprive him of his entitlement under Section 53A, as laid down in the case of Yenugu Achayya v Ernaki Venkata Subba Rao .

The case of SS Kapoor v Sanjay states that if the transferee is already in possession of the property in another role and all of the essential requirements of this Section are met, he will be allowed to keep it. It is important for a tenant continuing in possession of immovable property after a valid contract of transfer to establish that he does so in accordance with the contract of transfer. The transfer of possession or the continuation of it must have been agreed upon in the contract’s conditions. Then possession would be attributed solely to partial fulfilment of the contract. In the absence of such an agreement, the transferee’s possession could not be regarded to be in fulfilment of the selling agreement. There was no such term in this case. The right to collect rent was not even transferred. As a result, the buyer’s possession was not in part-performance of the transaction. When he transferred it to someone else, the recipient had no more rights than the transferor. He had been a tenant and would continue to be a tenant.

4) Readiness Or Willingness Of Transferee

“He who seeks equity must do equity,” says the equity principle, as reiterated in the case of B Paramashivaiah v MR. Shankar Prasad . In the case of Andhra Graphite P Ltd v Jobbing Syndicate (Regd. Partnership) it was laid that if the transferee wants to take advantage of this clause, he or she must also fulfil his or her obligations under the contract. He must be willing and able to fulfil his contractual obligations. Protection under Section 53A is a separate right, and a person performing a part of an agreement is only entitled to it if it can be demonstrated that he was always ready and prepared to carry out his share of the agreement, was established in the case of Rani Sambhi v Lt Col (Retd) R.L Vashisht . Absolute and unconditional readiness and willingness are required. In the case of Chinnaraj v Sheik Davood Nachiar , the benefit under the clause cannot be granted to a person who refuses to fulfil his contractual obligations.

History Of The Doctrine Of Part Performance

The doctrine of part performance is based on the Court of Chancery’s equitable rule of part performance that evolved under English law. Foxcroft v Lyster, was the first case to establish the equitable rule of part performance. No person shall be charged upon any contract for the sale of lands or any interest in land, etc., unless the agreement or some memorandum or some note thereof is in writing and signed by the party to be charged thereunder or some other person thereunto be him lawfully authorised, according to English law. This clause was incorporated in its entirety in Section 40 (i) of the Legislation of Property Act, 1925, with the exception that Sub-Section (2) expressly states that the substantive provision in Sub-Section (i) has no bearing on the law related to part performance or court sales. Because no action could be filed on oral agreements, the Chancery Court established the doctrine of part performance to alleviate the difficulty caused by an advantage obtained by a person under an oral contract. Failure to enforce it would have allowed the unjustified advantage gained by the equity court enforcing the contract to be retained. In actuality, if the contract was not enforced because the Statute of Frauds did not take oral agreements into account, a person could take advantage of the oral agreements and prolong the fraud that the statute was intended to prevent. At the same time, a claim involving immovable property could not be based solely on an oral agreement. As a result, the Chancery Court wanted to be completely satisfied before granting specific performance relief, and in order to ascertain the existence of the oral contract, the court wanted to be satisfied that some such act had been done that was unequivocally referable to the oral contract and would prove its existence beyond a reasonable doubt, implying the part performance of the contract. The act used to prove part performance must be of such a nature and character that its existence establishes the contract and its execution. Each action taken after the contract may not be sufficient to prove part performance on its own. The act must be of a kind that is unmistakably related to the contract and has been carried out in the course of the contract. In the case of Lady Thyme v Earl of Glengall, 74 the court observed that part performance, in order to avoid the Statute of Frauds, necessitates the completion of the agreement. There can be no partial performance if there isn’t a fully executed agreement. It must be mandatory, and whatever is done must be in accordance with the agreement’s terms and by the agreement’s force.

Emergence of Part Performance Doctrine in India

In India, the doctrine of part performance has been codified by statute, as stated in the case Rikhi v New Delhi Municipality, although it is not available outside of Section 53A . It has only been partially translated from the English notion of part performance, and it gives rise to a statutory right, not only equity, that is passive and more limited than English equity. Even on the strength of an oral agreement, a person might use the doctrine of part performance in English law. It can be employed as a defence as well as an assault weapon, i.e., it can be used to enforce a right of possession rather than only protect it. The High Court of Madras held in the old Madras case of Kurri Veera Reddi v Kurri Bapi Reddi that the English notion of part performance was not relevant in Indian law. In Md Musa v Aghore Kumar Ganguly , the Privy Council concluded that the doctrine of part-performance was applicable in India based on fairness, equity, and good conscience in 1914. A compromise deed (razinamah) was written but not registered in this case. Certain lands were divided between the parties who had taken ownership of their separate portions of the land under this deed. The parties kept possession of the compromise deed for many years, and roughly 40 years later, the parties’ heirs repudiated it because it was not recorded. Although the compromise deed was unregistered, the Privy Council used this theory and found that it was in writing and so a genuine document that could not be repudiated.

The concept enshrined in Section 53A of the TPA in India is a partial adaptation of the concept as it is applied in English law. India’s notion, on the other hand, is more limited in scope. Under English law, the egalitarian notion can be used as a defense or a “weapon of attack.” Section 53A, on the other hand, can only be used as a shield, not as a weapon, as previously stated. The notion is related to a verbal agreement in England, which is another major contrast in its applicability. The justices have made it clear that Section 53A only applies to contracts that are documented in India. As a result, the doctrine’s application in Indian law is severely limited.

Amendment To Section 53A And Their Repercussions

Prior to 2001, the law allowed for an exemption to the idea of part performance, allowing unregistered documentation to be used as sufficient proof to seek protection under the concept. The phrase “the document, though needed to be registered, has not been registered” was used in Section 53A to express this.” As a result, a person requesting protection under Section 53A may rely on an unregistered paper to prove his or her case. However, in 2001, the clause was changed to remove the aforementioned phrasing. It is vital to discuss the history of such a criterion in order to properly comprehend the implications of this evolution. Until 1929, Section 49 of the Registration Act of 1908 made it crystal clear that any unregistered documentation relating to immovable property was inadmissible as proof of title. As a result, any documents relied on to assert any title or benefit in connection with immovable property must always be registered. By 1929, the law had been modified to cover unregistered papers in immovable property claims under Section 49 of the Registration Act. Provision 53A of the TPA, which was introduced in 1929, did not require documents to be registered in order to be protected by the portion. Unregistered papers, such as an unregistered sale deed, were found to be appropriate evidence for asserting Section 53A privilege.

Later in 2001, the Act was revised to remove the clause in Section 53A that allowed unregistered papers to be admitted. In addition, in 2001, Section 49 of the Registration Act 1908 was amended, and the exemption allowing unregistered papers to be admitted was repealed. As a result, the legal situation was exactly the same as it was prior to 1929, when any claim involving real estate required the backing of a registered document. Only registered papers can be acknowledged to apply Section 53A as a result of the 2001 change. An individual, for example, cannot claim Section 53A protection based on an unregistered agreement. Part performance, on the other hand, is restricted to contracts that have been partially completed. A registered sale contract also suggests that the transaction has been completed in its entirety. A recorded agreement to sell a property, on the other hand, does not automatically mean that the parties have reached an agreement. As a result, the transferee may utilize paperwork, such as a registered agreement to transfer the property, to plead part performance. The revision significantly reduced the scope of Section 53A of the TPA’s application. Despite this, the Section will continue to apply to legal violations other than a lack of registration.

In a country like India, where a large Section of the population is unaware of the legal standards that must be met in certain situations, the number of cases where misinformed and uneducated clients are easily misled is rather high. The regularity with which courts invoke Section 53A demonstrates this. Given the foregoing, the required step of statutorily recognizing the concept of the part performance was taken. As previously stated, the differences between the doctrines in India and England show that the concept has only been partially integrated into the Indian legal system. While requiring the presence of a signed agreement limits the scope of use, the major requirements limit the scope of legal abuse. Nonetheless, given the Indian people’s social and financial situation, the change that removed the exemption allowing the use of unregistered papers for Section 53A purposes is likely to undermine the provision’s goal.

This article is written and submitted by Neha Haldhar during her course of internship at B&B Associates LLP. Neha is a B.S.W LL.B (Hons.) student from Gujarat National Law University .

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Introduction The Indian legislation that regulates the transfer of property between living persons is the Transfer of Property Act 1882. The legislation specifies provisions regarding what constitutes a transfer and the conditions attached to it. The legislation was enforced in India on 1 July 1882. A transfer of property follows the rule of Nemo dat […]

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Transfer of Property Act Notes And Study Material [PDF Download]

Author : Yogricha

Updated On : March 3, 2024

Overview: The Transfer of Property Act is part of the syllabus for roughly all states' Prelims and Mains Judiciary Examination 2024. As a judiciary aspirant in 2024 or a student in your Law School, you should study the Transfer of Property Act in depth. Refer to this article to understand all the essential topics of the Transfer of Property Act for Judiciary Preparation. Read this entire blog and make notes accordingly. It would help if you also made notes for yourself after referring to this article.

In this Blog we will cover:

Notes of Transfer of Property Act for Judiciary
Important topics of Transfer of Property Act
Previous Year Questions for practice
Tips to memorize Transfer of Property Act for Prelims and Mains of Judiciary

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What is Transfer?

The term "transfer" refers to a procedure or action through which ownership of certain assets is transferred to another party. In the first paragraph of Section 5, the definition of a property transfer is explained as follows: A property transfer entails an action carried out by a living individual, whether in the present or the future, to transfer ownership of assets to one or more other living individuals or to oneself and one or more other living individuals. To execute a property transfer is to carry out this action.

A property transfer involves a living individual transferring ownership, whether in the present or the future, to one or more living individuals or even to oneself. In India, the Transfer of Property Act of 1882 governs property transfers. The Act defines the term "transfer of property" in Section 5.

As per this section, the transfer of property refers to an action through which a living person conveys ownership, whether currently or at a later time, to one or more other living individuals or to oneself along with other living individuals. It's worth noting that the term "living person" encompasses entities such as companies or associations, whether incorporated or not. However, this section doesn't impact any existing laws related to companies, associations, or groups of individuals that are currently in force.

What is the Purpose of the Transfer of Property Act?

The Transfer of Property Act serves the purpose of defining and amending laws related to the transfer of property through the actions of parties involved rather than through legal operations. Such transfers of property are essentially contracts, and therefore, they must meet all the requirements to constitute a valid contract.

Key Definitions:

Living Person: This term includes not only individual living persons but also extends to encompass "a company or association or body of individuals," whether they are incorporated or not. However, this provision does not affect any existing laws pertaining to companies.

Property: While the Act does not provide a specific definition for "property," it has a broad and inclusive meaning. Property can encompass various forms, including both movable (such as books or water bottles) and immovable (such as ownership or copyrights).

Transfer: The term "transfer" also holds a broad meaning, as it can involve the transfer of all rights and interests in a property or just one or more specific rights in that property.

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Essentials of Transfer of Property:

Transfer Involves Living Persons: Property transfers, referred to as "inter vivos," can only occur between living individuals. Transfers to persons who do not exist are not valid. The category of "living person" includes companies, associations, or bodies of individuals, whether incorporated or not.

Property Must Be Transferable: Generally, property of any kind can be transferred. However, there are exceptions outlined in Section 6 of the Act, which lists properties that cannot be transferred. For instance, public offices, pensions, and certain rights are among the items that cannot be transferred.

Transfer Must Not Violate the Law: Transfers that oppose the nature of interest affected, are for unlawful purposes or considerations, involve persons legally disqualified from being transferees, or go against the principles of public policy are prohibited.

Persons Competent to Transfer: Individuals who are competent to enter into contracts, as defined in Section 11 of the Indian Contract Act, may transfer property. This typically includes those who have attained the age of majority, are of sound mind, and are not disqualified from entering into contracts by any other applicable law.

Types of Transfers Under the Transfer of Property Act:

Sale: A sale represents an absolute transfer of property ownership.
Mortgage: A mortgage involves a transfer of a limited interest in the property, often as security for a debt.
Lease: In a lease, the transfer involves the right to enjoy immovable property for a specified period or perpetuity.
Exchange: Exchange is similar to a sale, but the consideration may be something other than money.
Gift: A gift involves the voluntary transfer of property without any consideration.

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Case Law Example:

In the case of Harish Chandra vs. Chandra Sekhar (AIR 1977, All 44), the court held that if a transfer deed explicitly states that the transferor was the owner of the property and expresses the intention to transfer their title, it would constitute a valid transfer of property.

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Defining Movable and Immovable Property:

Movable and immovable properties are differentiated based on several common factors:

Movable Property: Movable property refers to assets that can be easily transported from one location to another without undergoing a change in their shape, capacity, quantity, or quality. Personal property typically falls under the category of movable property.
Immovable Property: Immovable property, on the other hand, is commonly associated with real estate, such as residential homes, factories, manufacturing plants, and similar structures. Movable property, in contrast, encompasses assets that are transportable, like computers, jewelry, vehicles, and the like.
Civil Law System: In a civil law system, personal property is synonymous with movable property. This category includes assets that have the capability to be relocated from one place to another.

Understanding Movable and Immovable Property:

Movable Property: Movable property is characterized by its ability to be easily relocated from one place to another without undergoing any changes in its size, shape, quantity, or quality. Essentially, movable property is transferable through human effort. Examples of movable property include items like books, utensils, and vehicles. However, there are exceptions, such as when a banyan tree is cut or sold for wood, it becomes classified as movable property. Similarly, contracts related to activities like cutting bamboo or collecting leaves fall under the category of movable property.

Movable property does not require mandatory registration under the Indian Registration Act, 1908, and its transfer is voluntary. This type of property is subject to sales tax, central sales tax, and specific restrictions and conditions outlined in tax acts and the Central Sales Tax Act, 1956. The transfer of movable property is completed by a simple delivery, and it does not alter the nature of an ancestral impartible estate.

Movable property encompasses a wide range of assets, including rights of worship, royalties, decrees for the sale of immovable property, decrees for rent arrears, maintenance allowances, standing timber, growing crops, grass, government promissory notes, and more.

Immovable Property: Immovable property, as defined by the General Clauses Act, 1897, includes land, benefits arising from land, and objects attached to or permanently fixed to the earth. This encompasses a broad spectrum of elements, from land and buildings to hereditary allowances, rights of way, light, ferries, fisheries, and other land-related benefits. The definition of immovable property under the Transfer of Property Act, 1882, excludes standing timber, growing crops, or grass.

However, this exclusion is not exhaustive, and a comprehensive interpretation combines definitions from the General Clauses Act and the Transfer of Property Act, concluding that immovable property includes land, benefits arising from land, and objects attached to the earth, except for standing timber, growing crops, or grass.

Immovable property is characterized by various elements, as outlined by legal scholar Salmond, including a determinate portion of the earth's surface, the ground beneath the surface down to the earth's center, the infinite column of space above the surface, natural objects on or beneath the surface, and objects placed on or under the surface through human agency for permanent annexation.

Immovable property includes a wide range of elements, such as rights to ferries, fisheries, rent collection, hereditary offices, equity of redemption, mortgage interests in immovable property, factories, and more. It's important to note that the degree, manner, extent, and strength of attachment, as well as the object of annexation, play crucial roles in determining whether a property is considered movable or immovable. Transfer of immovable property typically requires registration, whereas movable property transfers do not have this requirement.

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Landmark Legal Cases:

Baijnath vs. Ramadhan and Anr, AIR 1963: This significant case was adjudicated by the Allahabad High Court and subsequently referred to a larger bench due to conflicting decisions regarding the key issue at hand.

Issue at Hand: The primary question raised in this case was whether standing shisham or neem trees could be categorized as standing timber as defined under section 2(6) of the Act.

Judgment: The court, in its ruling, emphasized the paramount importance of determining the intention behind the trees in question. It considered whether the parties involved intended to deal with these trees specifically for the purpose of cutting them down or using them as standing timber, rather than merely as ordinary trees.

Shantabai vs. State of Bombay, AIR 1958 SC 532: In this notable case, the Supreme Court held that the real intention behind planting a tree would be the decisive factor. The purpose for which the tree was originally planted and its subsequent use were taken into account. The court established that entering a piece of land and cutting trees would fall under the category of benefits arising from the land.

Kapoor Construction vs. Leela Nagaraj & Ors., AIR 2005: In this case, the court provided valuable insights into the factors that play a crucial role in determining whether a property should be classified as movable or immovable. These factors include:

Intention: The intention behind the property's use and handling is a fundamental factor in its classification.
Mode of Annexation: The manner in which the property is attached or affixed to the land is considered.
Degree of Annexation: The extent or degree of attachment to the land is assessed to determine its classification.

These cases have contributed significantly to the legal understanding of property classification, particularly in distinguishing between movable and immovable assets based on factors such as intention and mode of annexation.

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Property Transferability: An Overview

Definition of Transferable Property: Transferable property refers to assets that can be conveyed or moved from one entity or individual to another for their use. Section 6 of the Transfer of Property Act, 1882, establishes that property of various kinds can be transferred, except when prohibited by this act or other prevailing laws. In the absence of any legal restrictions preventing the transfer, the property owner may proceed with the transfer.

Those contesting non-transferability must demonstrate the existence of specific laws or customs that restrict the right to transfer. In some cases, unauthorized individuals may transfer property and subsequently acquire an interest in that property.

When property is transferred subject to a condition that entirely restrains the transferee from disposing of their interest in the property, this condition is considered void. An exception exists in the case of a lease where such a condition benefits the lessor or those claiming under the lessor. Typically, only individuals with an interest in the property have the authority to transfer their interest and confer proper title to another party.

Transferable Property vs. Non-transferable Property:

Non-Transferable Property under Section 6 of the Act:

Spes Succession (Section 6(a)): This clause pertains to the non-transferability of a mere chance of a person to inherit property. If the transfer is based solely on the chance of receiving property, it is considered invalid.
Right of Re-entry (Section 6(b)): The right to re-enter land, which has been leased or granted to another person, cannot be transferred separately from the land. It can only be exercised by the owner of the property.
Easements (Section 6(c)): Easements, such as rights of way or light, cannot be transferred independently but may be transferred along with the dominant heritage (the property benefiting from the easement).
Restricted Interest (Section 6(d)): Interests restricted in their enjoyment, such as property lent for personal use, cannot be transferred.
Right to Future Maintenance (Section 6(dd)): The right to future maintenance, granted for personal benefit, cannot be transferred.
Mere Right to Sue (Section 6(e)): Mere rights to sue for damages or other claims cannot be transferred, as they are personal to the aggrieved party.
Public Office (Section 6(f)): Transfer of public offices is prohibited, as it may conflict with public policy.
Pensions (Section 6(g)): Military, civil, and political pensions are non-transferable.
Nature of Interests (Section 6(h)): This clause prohibits transfers that are opposed to the interest affected, unlawful in object or consideration, fraudulent, against public policy, or prohibited by law.
Statutory Prohibitions (Section 6(i)): Certain interests, such as those related to default in paying revenue or untransferable rights of occupancy, are declared untransferable by law.

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Who Can Transfer Property Under the Transfer of Property Act, 1882:

Section 7 of the Transfer of Property Act specifies that any person competent to contract is competent to transfer property, either wholly or in part. Additionally, the person willing to transfer property must hold title to the property or have the authority to transfer it, even if they are not the actual owner.

It is crucial to be entitled to the transferable property or have the authority to dispose of transferable property, even if it is not personally owned. Competency to contract is determined by the age of majority, which is typically attained at 18 years, although it may be 21 years in certain circumstances, as stipulated by the Indian Majority Act, 1875.

Persons Disqualified to Transfer: Certain individuals are disqualified from transferring property, including convicts, insolvent individuals, aliens, and enemies. A transfer by a defective guardian of a minor's property is also considered invalid under Section 11 of the Hindu Minority and Guardianship Act.

Official Assignee, Madras vs. Sampath Naidu, AIR 1933 Mad. 795: In this case, the court ruled that a mortgage executed by an heir is void, even if the heir subsequently acquires the property as an heir. Therefore, the transfer of spes successionis (bare chance of inheritance) is void ab initio.
Shoilojanund vs. Peary Charon, (1902) ILR 29 Cal 470: The court held that the right to receive voluntary and uncertain offerings in worship is restricted for personal enjoyment and, therefore, cannot be transferred.
Ananthayya vs. Subba Rao, AIR 1960 Mad 188: In this case, the court clarified that agreements where one person agrees to give a certain proportion of their income to another person, in consideration of being maintained by the latter, are not subject to the non-transferability provisions.
Saundariya Bai vs. Union of India, AIR 2008 MP 227: The case affirmed that pensions are non-transferable property, especially when they are unpaid and in the possession of the government. It is essential to differentiate pensions from bonuses and rewards, which may be transferable.

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Transfer to an Unborn Person: An Explanation

Definition of Transfer to an Unborn Person: Transfer to an unborn person refers to a legal scenario in which an interest in property is created for the benefit of an individual who is not yet in existence but may come into existence in the future. Section 13 of the Transfer of Property Act, 1882, outlines the conditions under which such transfers can occur. These conditions ensure that any interest created for an unborn person does not take effect unless it covers the entirety of the remaining interest of the property's transferor.

While an unborn child does not have current legal existence, both Indian and English law treat a child in the womb as already born for many legal purposes, following the legal maxim "nasciturus pro jam nato habetur."

To transfer property for the benefit of an unborn person, a trust mechanism must be employed. In simpler terms, the immovable property must vest in a living person between the date of the transfer and the birth of the unborn person, as property cannot be directly transferred in favor of an unborn person.

Key Elements of Section 13 of the Transfer of Property Act:

No Direct Transfer: Directly transferring property to an unborn person is prohibited. Instead, such transfers must be accomplished through a trust mechanism.
Prior Life Interest: A prior life interest must be created, which means that the property must be in possession of a living person between the date of the transfer and the birth of the unborn person. The interest in favor of the unborn person should always follow a prior interest created in favor of a living person.
Absolute Interest: The entire property should be transferred in the name of the unborn person. Partial interests or interests lasting only for life cannot be given to an unborn person.

Procedure for a Valid Transfer of Property to an Unborn Person:

Section 13 outlines a specific procedure for transferring property for the benefit of an unborn person:

The individual intending to transfer property for the benefit of an unborn person must first create a life interest in favor of a living person.
Afterward, an absolute interest in favor of the unborn person can be established.
If the unborn person comes into existence during the period when the life interest is in place, the property's title will immediately transfer to the newly born individual. However, possession of the property will only be granted upon the death of the person holding the life interest.

Case Laws Relevant to Transfer of Property to an Unborn Person:

Girjesh Dutt vs. Datadin: In this case, a gift was made for the life of 'B' and then to 'B's daughter without the power of alienation. If 'B' had no heir, the property would go to 'A's nephew. The court held that the gift in favor of unborn daughters was invalid under Section 13 because it was a limited interest and subject to the prior interest in favor of 'B.'
Raja Bajrang Bahadur Singh v. Thakurdin Bhakhtrey Kuer: The Supreme Court observed that no interest can be created directly in favor of an unborn person. However, when a gift is made to a class or series of persons, some of whom exist and some are nonexistent, it remains valid for the persons who exist at the time of the testator's death but is invalid for the rest.

The transfer of property to unborn persons is possible through indirect means using trusts. Section 13 of the Transfer of Property Act ensures that such transfers adhere to specific conditions to prevent obstacles in the free disposition of property for future generations. To make a valid transfer in favor of an unborn person, it is crucial to convey the entire remaining interest of the property to the unborn individual. This ensures that the transfer takes effect in accordance with the law, and any other approach may render the transfer void.

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Rule Against Perpetuity Explained

Definition of Rule Against Perpetuity: The rule against perpetuity, as defined under the Transfer of Property Act, places a limit on the maximum time period during which property can be transferred. In this context, "perpetuity" means an indefinite or limitless duration. This rule prevents the creation of transfers that render a property inalienable for an indefinite period, known as the perpetuity period. Section 14 of the Transfer of Property Act addresses the rule against perpetuity.

Conditions for Compliance:

Transfer During Lifetime: To prevent violations of Section 5 of the Transfer of Property Act, property transfers must occur during the lifetime or before the death of the person with prior interest and the conception of the beneficiary. Failing to do so will render the transfer void.

Attainment of Full Age: The transfer of property to an unborn person or the creation of an interest in favor of the beneficiary can happen in three stages:

Interest is established upon conception.
It becomes a vested interest at birth, according to Section 20 of the Transfer of Property Act.
It fully vests upon the beneficiary attaining the age of majority. Absolute interest encompasses the enjoyment of property, possession, and alienation.

Object of the Rule Against Perpetuity: The primary objective of the rule against perpetuity is to ensure that property remains transferable and does not become inalienable for extended periods. This promotes the free circulation of property, benefiting trade, commerce, society, and property ownership. It aims to prevent the creation of perpetuities, which could hinder the active use and transfer of property.

Conditions for Rule Against Perpetuity under the Transfer of Property Act:

Transfer of Property: There must be a transfer of property.
Beneficiary: The transfer must aim to benefit an unborn person, meaning the ultimate beneficiary.
Timing of Interest: The interest created must take effect during the lifetime of a living person and during the minority of the unborn person.
Birth of Unborn Person: The birth of the unborn person must occur before the death of the person holding the property interest at the end of the living person's interest.
Vested Interest: The vested interest in favor of the ultimate beneficiary can only be postponed until the end of the living person's lifetime.

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Differences in the Rule Against Perpetuity between Indian Law and English Law:

In India, the minority period is 18 years, while it is 21 years in English law.
Under Indian law, the period of gestation must be an actual period, whereas under English law, it is a gross period.
Indian law requires the property to be given absolutely to the unborn person, while English law does not require absolute transfer.
In Indian law, the unborn person must come into existence before the death of the last life estate holder, whereas in English law, they must exist within 21 years of the last life estate holder's death.

Exceptions to the Rule Against Perpetuity:

Transfer for Public Benefit: Property transferred for the benefit of the general public, such as for knowledge, religion, health, commerce, or any other beneficial purpose to mankind, is not void under this rule.
Covenants of Redemption: This rule does not affect covenants of redemption in mortgages.
Personal Agreements: Agreements that do not create any interest in the property are not affected by this rule. It applies only to transfers where an interest is created.
Pre-emption: The rule does not apply to contracts of perpetual lease renewal.
Perpetual Lease: It is not applicable to contracts for perpetual lease renewal.

Vested Interest for the Ultimate Beneficiary:

A vested interest in favor of the ultimate beneficiary is achieved either:

Upon the death of the person with a life interest in the property, or
After a period of 18 years, or a longer period if applicable, from the creation of the interest. Any condition extending beyond this period is void.

Conclusion: Section 14 of the Transfer of Property Act establishes the rule against perpetuity to prevent the stagnation of properties and ensure their free circulation for the benefit of society. This rule encourages property's active use and transfer, which is essential for trade, commerce, and the overall betterment of society.

Case Laws under Rule Against Perpetuity under Transfer of Property Act:

Girish Dutt vs. Data Din: In this case, the court held that transfers intended to be effective upon failure of earlier transfers are void under Section 13 of the Act.
T. Subramania vs. T. Varadharayas: The court held that an interest created in favor of the eldest son was limited to his lifetime, making it invalid under the rule against perpetuity.

Vested Interest and Contingent Interest

Understanding Vested Interest

Definition of Vested Interest: Vested interest refers to an interest in a property that is created in favor of a person without specifying a specific time or connection. In a vested interest, the interest in the property belongs to the transferee, even though the right to enjoy the property may be delayed. The person with the vested interest does not have immediate possession of the property but has the expectation of receiving it upon the occurrence of a specified event.

Section 19 of the Transfer of Property Act defines Vested Interest: "Where, on a transfer of property, an interest therein is created in favor of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer."

Example of Vested Interest: Suppose 'X' promises to transfer his property to 'Y' when 'Y' reaches the age of 22. 'Y' will have a vested interest in 'X's' property until he gains possession of it. If 'Y' were to pass away at the age of 21, the vested interest would transfer to 'Y's' legal heirs, who would be entitled to the property within the specified time frame.

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Characteristics of Vested Interest:

Certainty: Vested interest does not depend on an uncertain event; it creates an immediate or present right, even though the right to enjoy the property may be postponed.
Survivability: Vested interest does not cease to exist upon the death of the transferee. Instead, the property is transferred to the transferee, and upon the transferee's death, it passes to their heirs.
Transferability and Heritability: Vested interest is both transferable and heritable, depending on the nature of the transfer and any associated conditions.

When Does Vested Interest Occur? Vested interest can occur in two stages:

Immediate Possession: When the transferee is in immediate possession of the property.
Delayed Enjoyment: When the transferee has acquired an interest in the property but does not have current possession, and the right to enjoyment is deferred to a future date.

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Understanding Contingent Interest

Definition of Contingent Interest: Contingent interest refers to an interest created in favor of a person that depends on the occurrence of a specified uncertain event. In a contingent interest, the right to the property is not granted until the uncertain event happens, and if the event does not occur, the person does not receive the property. The contingent interest is entirely contingent on the condition imposed on the transfer.

Conditions for Contingent Interest:

Dependence on Uncertain Event: Contingent interest occurs when the interest depends on a specified uncertain event.

Examples of Contingent Interest:

If 'A' agrees to transfer property to 'B' on the condition that 'B' scores 90% on an exam, 'B' acquires a contingent interest in the property. 'B' will only receive the property if the condition of scoring 90% is fulfilled.
When a person has the chance to own a particular property, but the event that would trigger ownership has not occurred, their interest in the property is contingent.

Exceptions to Contingent Interest under Section 120 of the Indian Succession Act, 1925:

When a person becomes entitled to an interest upon reaching a particular age, and the transferor also gives them the income arising from such interest before they reach that age, or directs that the income, or a portion thereof, be applied for their benefit, such interest is not contingent.

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Characteristics of Contingent Interest:

Conditionality: Contingent interest depends entirely on the fulfillment of a specified condition. If the condition is not met, the interest is not realized.
Survivability: Contingent interest ceases to exist if the uncertain event does not occur. It is not transferable or heritable unless the contingent event takes place.

Vested interest is an immediate or present interest in a property, while contingent interest depends on the occurrence of a specified uncertain event. Both types of interests have distinct characteristics and implications, and they play a crucial role in property transfers and ownership rights.

Case Law: Lachman vs. Baldeo (1919) 21 OC 312

In this legal case, a deed of gift was transferred by one individual in favor of another person. However, the transferor included an instruction that the transferee should not take possession of the property until the transferor's own demise. Despite the postponement of the right to enjoy the property, the transferee was deemed to have a vested interest in the property.

Case Law: Leake vs. Robinson (1817) 2 Mer 363

In the case of Leake vs. Robinson, the court established a significant legal principle. It was ruled that whenever a condition is attached to a legacy, specifying that it is to be given 'at a particular age,' 'upon attaining a particular age,' or 'a specific age,' it can be inferred that the transfer involves a contingent interest.

Doctrine of Election in Property Law

The doctrine of election in property law pertains to the choice made by an individual between two alternative or incompatible rights when presented with such a situation. Under this doctrine, if a person is granted two rights through a single instrument, with one right being contingent on the other, they are obligated to select one of these rights. This means that the beneficiary cannot simultaneously enjoy both rights; they must choose between the conflicting options. Essentially, the person who receives a benefit under an instrument must also bear any associated burdens.

The doctrine of election is codified in the Transfer of Property Act, 1882, under Section 35, and is also found in sections 180-190 of the Indian Succession Act. It requires individuals to make a choice regarding whether they wish to assume ownership of someone else's property and whether they intend to uphold the conditions set forth.

Understanding the Doctrine of Election

The doctrine of election is founded on the principle that one cannot accept a benefit under an instrument or transaction and simultaneously reject or disapprove of its unfavorable aspects. In simpler terms, if an individual accepts a benefit from a deed or instrument, they must also accept any corresponding obligations or conditions.

For instance, consider a scenario in which 'A' promises to give 'B' 50 lakh rupees but with the condition that 'B' must sell his house to 'C.' In this case, 'B' must make a choice between accepting 'A's offer and complying with the condition to give up his house or refusing 'A's offer and retaining his house.

Essential Conditions for Application of the Doctrine of Election

For the doctrine of election to apply, several essential conditions must be met:

The transferor must not be the owner of the property being transferred.
The transferor must transfer another person's property to a third party.
The transferor must simultaneously grant some property from their own to the owner of the property.
Both transfers, i.e., the transfer of the owner's property to the third party and the benefit conferred on the owner, must be part of the same transaction. If they are separate transactions, the doctrine of election does not come into play.
The owner must possess a proprietary interest in the property in question.
If a person directly accepts a benefit under a transaction but diverts another benefit indirectly, the doctrine of election may not apply.

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Exceptions to the Doctrine of Election

There are exceptions to the doctrine of election:

When the owner, while choosing to retain the property, gains an unrelated benefit through the same transaction, they are not required to relinquish this additional benefit.
If the original owner is aware of the obligation to make an election and accepts a benefit, his acceptance is deemed as an election to validate the transfer.
If the owner does not make a choice within a year of the property transfer, the transferor may require the owner to elect. After a reasonable time, if the owner still does not make a choice, it is assumed that they have elected to validate the property transfer.
In the case of a minor, the period for election is postponed until the individual reaches the age of majority, unless represented by a guardian.

Modes of Doctrine of Election

There are two modes of making an election:

Direct Election: This can be done through various means, including a written letter, a telegram, oral communication from the transferor, or any indication by the person that expresses the transferor's intention.

Indirect Election: Indirect election includes three types:

Acceptance of benefits without knowledge of the duty for election: If the owner accepts the benefit without being aware of the duty to make an election, it constitutes an election.
Enjoyment for two years: If the owner holds the property for two years without expressing dissent after knowing the obligation to make an election, it is presumed that they have elected to validate the transfer.
Status quo cannot be restored: In cases involving property that is consumed or used, once consumption begins, the election is presumed to have taken place. No specific time period for consumption is required in this scenario.

Mohd. Kader Ali Fakir vs. Lukman Hakim: This case emphasizes that a person who accepts a benefit under an instrument must also accept any burden imposed by the same instrument. The doctrine of election ensures that one cannot accept favorable aspects while rejecting unfavorable ones under the same instrument.

Dhanpati vs. Devi Prasad and Others (1970) (3) SCC 776: In this case, the court outlined the essential conditions for the application of the doctrine of election. It stressed that the owner must not have a right to transfer the property, must transfer some benefit to the owner of the property, and both transfers must be part of the same transaction. The owner must choose to confirm or dissent from the transfer.

Transfer by an Ostensible Owner in Property Law

An ostensible owner refers to a person who appears to be the legitimate owner of a particular property but, in reality, is not the true owner. This individual is not a trespasser or someone in unlawful possession of the property. Instead, they act as if they are the property owner, often with the consent or acquiescence of the actual property owner.

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Transfer by Ostensible Owner

Section 41 of the Transfer of Property Act deals with the concept of a transfer by an ostensible owner.

Essentials of Ostensible Owner

Several key elements must be met for a transfer by an ostensible owner to be valid:

Transfer of Immovable Property by an Ostensible Owner: This section is applicable to the transfer of immovable property, including partial transfers, such as mortgages. It encompasses various types of transfers beyond just sales or exchanges.
Transfer for Consideration: The transfer must involve a consideration, meaning that it is not applicable to transfers made without any exchange of value, such as gifts.
Consent of the Person Interested in the Property: The transfer must occur with the consent of the person interested in the property, which usually refers to the real owner. This consent can be expressed or implied, but it must be independent and not obtained through fraud or misrepresentation.
Transferee's Good Faith and Reasonable Care: The transferee, the person receiving the property, must have acted in good faith and taken reasonable care before entering into the transaction. This implies that they believed the transferor had the right to transfer the property.

Benami Transaction

Benami transactions are a common example of ostensible ownership. In a benami transaction, one person holds the property while another provides the consideration for it. The person providing the consideration is the actual owner, while the person in whose name the property is held is the ostensible owner.

Benami transactions are now regulated by the Benami Transactions Act, 1988, which prohibits such transactions and imposes penalties. However, there are exceptions to this prohibition, including when someone buys property in their spouse's name or in the name of an unmarried daughter.

Validity of the Transfer

If all the requirements of Section 41 are met, the transfer by an ostensible owner is considered valid and not null or void.

Burden of Proof: Ostensible Owner

The burden of proof under Section 41 falls upon the transferee, who must demonstrate:

That the transferor is an ostensible owner.
That they took reasonable precautions, as a reasonably prudent person would, to protect their interests in the transaction.

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Rule of Estoppel over the Real Owner

Section 41 operates on the principle of estoppel. If the real owner of the property assures the transferee that the ostensible owner has the right to deal with and alienate the property, and the transferee reasonably believes this to be true even after taking due care, the real owner is prevented from later questioning the transfer. This is based on the idea that the real owner's conduct led to the transfer, and the innocent party should not suffer as a result.

Padam Chand vs. Lakshmi Devi: In this case, a gift deed was executed by the ostensible owner (father) in favor of his daughter. The transfer was based on love and affection. The court held that Section 41 did not apply because there was no monetary consideration involved.
Ramcoomar Koondoo vs. Macqueen: This case involved property purchased by Alexander Macdonald in the name of his mistress, Boono Baby. After Alexander's death, the property was sold to Ramdoni Kundu. The court held that the sale was bona fide and conducted with proper investigation, meeting the requirements of Section 41.

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The Doctrine of Lis Pendens in Property Law

The Doctrine of Lis Pendens, derived from the Latin phrase "Pendente lite nihil innovetur," translates to "during the pendency of litigation, nothing new should be introduced." It signifies that when there is ongoing litigation concerning a property, no fresh transactions or interests should be created in relation to that property. The doctrine aims to maintain the status quo of the property in question during the course of legal proceedings.

Key Aspects of the Doctrine of Lis Pendens:

Nature of the Doctrine: The Doctrine of Lis Pendens is rooted in the concept of necessity rather than the principle of notice, as found in common law, which includes principles of justice, equity, and good conscience. It ensures that justice is dispensed without prejudicing the rights of either party.
Legal Basis: Section 52 of The Transfer of Property Act, 1882, embodies the doctrine of lis pendens. It is encapsulated in the maxim "Pendente lite nihil innovetur," which means "nothing new should be introduced in property whose litigation is pending."
Effect of Lis Pendens: When a lawsuit directly involving the title or rights related to immovable property is pending in a competent court, any transaction affecting that property may not be carried out by any party involved in the lawsuit unless it is done under the jurisdiction of the court and according to its conditions.

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Illustrations:

Scenario 1: 'A' files a lawsuit against 'B' regarding a house in 'B's possession. During the litigation, 'B' sells the house to 'C.' If 'A's lawsuit is dismissed, the transfer to 'C' remains valid, and 'C' is not affected by the litigation outcome.
Scenario 2: 'A' files a lawsuit against 'B' regarding a house in 'B's possession. During the litigation, 'B' sells the house to 'C.' If 'A' wins the lawsuit, the transfer to 'C' is voidable, and 'A' has the right to claim the house.

Essentials of the Doctrine of Lis Pendens:

Several elements must be met for the doctrine of lis pendens to apply:

Pendency of Proceedings: There must be a pending case or legal proceeding.
Competent Court: The case or proceeding should be within the jurisdiction of a competent court.
Specific Involvement of Immovable Property: The right to the title of immovable property must be directly and clearly in question in the lawsuit.
Non-Collusive Suit: The lawsuit should not be collusive, meaning it should be a genuine dispute.
Direct Affectation of Rights: The suit should directly impact the rights of other parties involved.
Transfer's Impact on Litigation Rights: Any transfer of the property should affect the litigation rights of the parties involved.

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Non-Applicability of the Doctrine of Lis Pendens:

The doctrine of lis pendens does not apply in certain circumstances:

Sale by mortgage exercised under the power conferred by the mortgage deed.
Cases involving reviews.
Cases where the transferor is the sole party affected.
Cases where the proceedings are collusive.
Cases where the property is inadequately described in the plaint.
Cases where the subject matter of the rights under dispute is different from the property transferred.

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Purpose of the Doctrine of Lis Pendens:

The doctrine of lis pendens is essential to prevent the transfer of the title of a disputed property without the court's consent. Without this doctrine, litigation could continue indefinitely, making it impossible to bring lawsuits to a successful conclusion. The doctrine ensures that the rights of parties are protected and prevents unfair transactions during ongoing litigation.

Applicability of Section 52 of Transfer of Property Act: Conditions to Be Satisfied:

The Supreme Court, in the case "Dev Raj Dogra vs. Gyan Chand Jain and others," established the following conditions for the application of Section 52 of the Transfer of Property Act:

A pending suit or proceeding involving the right to immovable property.
The suit or proceeding must be in a court of competent jurisdiction.
The suit or proceeding should not be collusive.
The right to immovable property should be directly and clearly in question.

Case Laws Illustrating the Doctrine of Lis Pendens:

Ramjidas vs. Laxmi Kumar and Ors. (AIR 1987 MP 78): This case emphasized that Section 52 serves to subject claims related to immovable property to the authority of the court handling the property, ensuring justice is provided without undermining the rights of either party.
Lov Raj Kumar vs. Dr. Major Daya Shanker and Ors.: In this case, the Delhi High Court asserted that the principles of Section 52 of the Transfer of Property Act are aligned with equity, good conscience, and justice. Allowing transactions during pending litigation would defeat the ends of justice and undermine principles of equity.
Har Narain vs. Mam Chand: The Supreme Court clarified that Section 47(2) of The Registration Act, 1908, does not override the doctrine of lis pendens. Land sales are still subject to the doctrine even if the civil action commences before registration.

Understanding Fraudulent Transfers under the Transfer of Property Act

Definition of Fraudulent Transfer: A fraudulent transfer, as per the Transfer of Property Act, refers to the unlawful transfer of property with the intent to deceive or defraud creditors. Such transfers involve the intention to hinder creditors from exercising their legitimate and equitable rights. When a transfer is made with fraudulent intent, it is considered unjust and contrary to principles of equity and justice, even if it is legally valid.

Relevant Section: Section 53 of the Transfer of Property Act, 1882, deals with fraudulent transfers.

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Key Elements of Fraudulent Transfer:

Transfer with Intent to Defeat Creditors: To qualify as a fraudulent transfer, it must involve the intent to defeat or delay the rights of the transferor's creditors. This intention is crucial in establishing a fraudulent transfer.
Delaying Creditor Satisfaction: The primary objective of a fraudulent transfer is to place the property beyond the reach of creditors, causing a delay in satisfying their debts.

Example: If 'A' transfers ownership of his property to 'B' with the intention of shielding his assets from creditors, this transfer is deemed fraudulent.

Legal Consequences of Fraudulent Transfer: A fraudulent transfer of property creates a civil cause of action. The affected creditor can approach the court to set aside such a transfer. The court has the authority to declare a fraudulent transfer void at the request of the defrauded creditor.

Objective of the Doctrine of Fraudulent Transfers: The primary objective of Section 53 is to protect the rights of creditors who may be owed financial liabilities by the transferor. It aims to provide security to those creditors who might suffer delays or defeats in their claims due to the transferor's ill intentions. Creditors, who have done nothing more than lend money to the deceitful transferor, deserve legal protection, which can only be provided by legislative policy.

Essentials of Fraudulent Transfer under the Transfer of Property Act:

Transfer by the Transferor: The property must be transferred by the transferor.
Involvement of Immovable Property: The property being transferred should be immovable.
Transfer without Consideration: The transfer should be made without proper consideration.
Intent to Defraud Creditors: The transfer must be executed with the intent to defraud subsequent transferees and to defeat or delay the rights of creditors.
Voidable at the Option of Subsequent Transferee: Such transfers are voidable at the option of subsequent transferees.

Exceptions to Fraudulent Transfer:

A fraudulent transfer may not be void if the following conditions are met:

The transfer was made in good faith.
The transfer was made for consideration.

Filing a Suit for Fraudulent Transfer:

Suits related to fraudulent transfers are typically filed by the affected creditor. The suit is framed based on the grounds that the transfer was made with the intent to defraud or delay the transferor's creditors. These suits are instituted on behalf of all creditors to avoid multiple lawsuits against the same parties on the same matter.

Burden of Proof in Fraudulent Transfer Cases:

There is no presumption in law that a transfer was made with the intent to defraud creditors. The burden of proof initially lies with the creditors to demonstrate the transferor's intent to defeat or delay them. Once the creditors establish a prima facie case of fraudulent intent, the burden shifts to the transferor to provide a defense and explain the circumstances.

Proviso: The law protects bona fide transferees who have paid consideration for the transfer and were unaware of the fraudulent intentions of the transferor. However, if the transferee had constructive notice of the fraud, it is assumed that they knew about it.

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Case Laws Illustrating Fraudulent Transfers:

Kanchanbai vs. Moti Chand (AIR 1967 MP 145): In this case, the court clarified that the term "creditors" includes even a single creditor. The fraudulent transfer provision applies even if the intent was to defraud a single creditor.
Dr. Vimla vs. Delhi Administration (AIR 1963 SC 1572): The Supreme Court held that fraud involves two elements: deceit and injury to the defrauded party. Injury is not limited to economic loss but also encompasses harm to one's body, mind, reputation, or deprivation of property or money.

The doctrine of fraudulent transfers aims to protect the rights of creditors and ensure that fraudulent transactions do not hinder their legitimate claims.

Understanding the Rule of Part Performance

Definition of Rule of Part Performance: The rule of part performance is a legal principle based on equity. It was developed in England and later incorporated into the Transfer of Property Act, 1882, through the Amendment Act of 1929.

Key Elements of the Rule of Part Performance:

Contractual Agreements: In contractual agreements, such as a contract for sale of property, no rights are transferred until the contract is fully executed. However, if a party to the contract performs their part or takes any actions in furtherance of the contract, they are entitled to reimbursement or compensation if the other party backs out.
Section 53A: Section 53A of the Transfer of Property Act deals with this rule. It stipulates that when both parties in a contract have their respective roles to play, the transferor must get the necessary documents prepared and complete the registration process, while the transferee must pay the agreed-upon amount and take possession of the property.
Failure to Complete the Contract: If the transferor fails to complete the registration or fulfill other contractual obligations, they do not have the right to file a case against the transferee or other parties. However, the rights and ownership of the transferee remain unaffected.

Illustration: Suppose 'A' enters into a contract with 'B' to sell a plot of land for a specified amount. 'A' accepts an advance payment from 'B' and hands over possession of the plot. Later, when 'B' is ready to make the full payment, 'A' refuses to accept it and asks for the plot back.

In this scenario, 'B' is prepared to fulfill their part of the contract, but 'A' is not. In such a case, 'B' can file a case for specific performance against 'A,' even if the sale was not registered.

Essentials of the Rule of Part Performance:

Written Contract: The rule of part performance applies when there is a written contract for the transfer of immovable property by or on behalf of the transferor. It does not apply to oral agreements or agreements that are entirely absent in writing.
Consideration: There should be consideration involved in the contract.
Clear Terms: The contract should outline the terms of the transfer with reasonable certainty.
Transferee's Possession: The transferee must have taken possession of the property as a result of the contract or continued possession if they were already in possession. Possession must be linked to the contract and not for any other purpose.
Act Done in Furtherance: If the transferee was already in possession before the contract, they must have done something in furtherance of the contract. Mere continuation of possession by someone already in possession is not sufficient.

Objectives Behind the Rule of Part Performance: The rule of part performance is based on the principle of equity and is intended to protect the rights of parties in a contract. Its objectives include:

Ensuring that the transferee's right to retain possession is not affected if they have acted in good faith and have not committed any fault in the contract.
Preventing the transferee from suffering due to the transferor's failure to complete the transfer as agreed upon.

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Transfer of Property: The rule of part performance applies to the transfer of immovable property, including sales, leases, and mortgages.

Proviso: The law protects bona fide transferees who have paid consideration for the transfer and were unaware of the transferor's breach of contract. However, if the transferee had constructive notice of the breach, it is assumed that they knew about it.

Case Law Illustration: In the case of Kanchanbai vs. Moti Chand (AIR 1967 MP 145) , the court clarified that the term "creditors" includes even a single creditor. The rule of part performance can be applied even if the intent was to defraud a single creditor.

The rule of part performance aims to protect the rights of parties in a contract and ensure that they are not unfairly affected by the actions or omissions of the other party.

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Case Law Examples of the Rule of Part Performance

Case 1: Kukaji vs. Basantilal (AIR 1955 MB 93)

Facts of the Case:

'A' mortgaged his house to 'B' and handed over possession of the property.
Later, 'A' sold the same house to 'B' without registering the sale deed. The sale consideration was a mortgage loan.
Subsequently, the property was sold to 'C,' and a transfer deed was registered.
'C' filed a lawsuit against 'B' to release the mortgage, while 'B' claimed retention of possession under the rule of part performance, invoking Section 53(A) of the Transfer of Property Act.
The court held that 'B' was already in possession of the property as a mortgagee. Mere continuity of possession does not constitute part performance.
To benefit from the principle of part performance, 'B' needed to demonstrate that they had taken additional actions to advance the contract.

Case 2: Sardar Govindrao Mahadik vs. Devi Sahai

'A' mortgaged his property to 'B' and handed over possession.
Subsequently, 'A' and 'B' entered into an agreement to sell the mortgaged property. 'B' advanced Rs. 1000 to purchase a stamp for the deed, which was never registered.
Later, 'A' sold the property to 'C,' and both 'A' and 'C' filed a lawsuit against 'B' for the redemption of the property.
'B' claimed the benefit of the rule of part performance, arguing that a sale deed was executed in his favor, he retained possession, and he had advanced Rs. 1000 for the stamp, which should be considered as part performance of the contract.
The court held that the money provided for the purchase of the stamp was related to the contract, but no further actions were taken to advance the contract.
'B' was not entitled to the benefit of the rule of part performance in this case.

These case law examples illustrate the application of the rule of part performance in situations where possession alone is not sufficient to claim part performance, and additional actions or advancements of the contract are required to establish the right to retain possession.

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Definition of Actionable Claim:

An actionable claim refers to a claim or debt for which legal action can be taken. It signifies a right to enforce a claim through legal means. This term often pertains to unsecured debts or beneficial interests in movable property that are recognized by civil courts as grounds for seeking relief. Actionable claims can be transferred, and their transfer is regulated by the Transfer of Property Act, 1882.

Actionable Claim under the Transfer of Property Act:

Under the Transfer of Property Act, an actionable claim encompasses claims to unsecured debts or beneficial interests in movable property that are not in the possession of the claimant. These claims can be transferred from one party to another, and the Act provides guidelines for their transfer in Chapter VIII, which includes sections 130 to 137.

Examples of Actionable Claims:

Claim for Arrears of Rent: A tenant's claim for unpaid rent is considered an actionable claim. The tenant can take legal action to recover the overdue rent.
Claim for Money Due under an Insurance Policy: If an insurer owes a policyholder a sum of money as per the terms of an insurance policy, this claim can be an actionable claim. The policyholder can seek legal remedies to enforce the claim.
Claim for Return of Earnest Money: When earnest money is given as part of a contract and the contract falls through, the party who deposited the earnest money can pursue it as an actionable claim.
Right to Get Back the Purchase Money in Case of Set Aside Sale: If a sale is set aside for any reason, the buyer has the right to recover the purchase money. This right is considered an actionable claim.
Right of a Partner to Sue for an Account of a Dissolved Partnership Firm: When a partnership firm dissolves, a partner may have the right to sue for an account of the firm's financial transactions. This right is an actionable claim.
Right to Claim Benefits under a Contract for the Purchase of Goods: If one party has paid for goods or services and the other party fails to deliver them as per the contract, the party who made the payment can claim benefits as an actionable claim.

Exceptions to Actionable Claim:

Some claims and rights are not categorized as actionable claims under the Transfer of Property Act. These exceptions include:

Debts Secured by Mortgage of Immovable Property: Claims secured by a mortgage of immovable property are not considered actionable claims.
Damages for Breach of Contract: Claims for damages resulting from a breach of contract, whether in tort or contract, are not actionable claims.
Claims to Mesne Profits: Claims for mesne profits, which are payments for possession of immovable property made by a person who does not have the right to allow such possession, are not actionable claims.
Shares in a Company: Claims related to shares in a company are not considered actionable claims.
Claim to Copyright: Copyright claims are not classified as actionable claims under the Transfer of Property Act.

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Transfer of Actionable Claims:

The transfer of actionable claims is regulated by Section 130 of the Transfer of Property Act. To transfer an actionable claim, the following conditions must be met:

The transfer must be executed through a written instrument signed by the transferor or their authorized agent.
The transfer can be with or without consideration.
Once the instrument of transfer is executed, the transfer becomes complete and effective.
All rights and remedies related to the actionable claim then vest in the transferee, regardless of whether notice of the transfer is given to the debtor.

Notice of Transfer to Debtors:

While notice of transfer to debtors is not mandatory for the validity of the transfer, providing notice is advisable to bind the debtor with the transfer. Section 131 of the Transfer of Property Act specifies that the notice must be in writing, signed by the transferor or their authorized agent, and should include the name and address of the transferee.

H. Anraj vs. Govt. of Tamil Nadu, A.I.R. 1986 S.C. 63: In this case, the Supreme Court ruled that the right to participate in a draw is a beneficial interest in movable property, and the objective of participation is to win the award. Therefore, the transfer of such rights qualifies as an actionable claim.

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What is a Mortgage?

A mortgage is a financial arrangement wherein a borrower secures a loan to purchase or maintain real estate, typically a home, and commits to repay the borrowed amount over time through a series of regular payments. In this arrangement, the property itself serves as collateral to guarantee the repayment of the loan. Mortgage transactions involve the transfer of an interest in a specific immovable property, either to secure funds provided through a loan, existing or future debt, or to fulfill an engagement that might lead to a financial obligation.

As per Section 58(a) of The Transfer of Property Act, 1882, a mortgage is defined as the transfer of an interest in a particular immovable property, with the aim of securing the payment of money advanced or to be advanced as a loan, an existing or potential debt, or the performance of an engagement that could result in a pecuniary liability. In this context, the transferor is referred to as the mortgagor, the recipient of the transfer as the mortgagee, the total sum involving principal and interest currently secured is known as the mortgage-money, and the associated document, if any, formalizing the transfer is termed a mortgage-deed.

Characteristics of a Mortgage:

Involves Immovable Property: Mortgages are applicable exclusively to immovable property, which includes land and structures, along with profits derived from land-related assets such as trees, buildings, and machinery. However, it is important to note that machinery not permanently affixed to the earth and capable of relocation is not considered immovable property.

Partial Transfer of Ownership: Unlike a sale, where full ownership rights are transferred, a mortgage involves the transfer of specific ownership rights while retaining other ownership rights with the original owner.

Purpose for Securing a Loan: The primary purpose of a mortgage is to secure a loan, leading to a monetary obligation. Property transfer for any other purpose does not constitute a mortgage. For instance, transferring property to settle prior debts would not qualify as a mortgage.

Specific Identification of Property: The mortgaged property must be distinctly identifiable based on attributes such as size, location, and boundaries.

Possession May Remain with Mortgagor: The actual possession of the mortgaged property is not always transferred to the mortgagee. The mortgagor can retain possession while securing the loan.

Right to Property Returns to Mortgagor: After repaying the debt, the mortgagor regains full ownership rights over the mortgaged property.

Mortgagee's Right to Recover Debt: If the mortgagor fails to repay the loan, the mortgagee has the right to recover the debt by selling the mortgaged property.

Who is a Mortgagor?

A mortgagor is an individual or entity that borrows money from a lender, typically for the purpose of acquiring real estate, such as a home or other property. The mortgagor is the party that transfers an interest in a specific immovable property as collateral to secure a mortgage loan. The term is often used in the context of real estate transactions, where the mortgagor pledges the property as security to obtain financing for the purchase.

Mortgagors can secure different mortgage loan terms depending on various factors assessed during the loan approval process. Mortgage loans are considered secured loans, meaning they are backed by the collateral of real estate, and this collateral serves as a guarantee for the repayment of the loan. If the mortgagor fails to make timely payments, they may face foreclosure, which could result in the lender taking possession of the property.

For example, if an individual, 'A,' wishes to purchase a home and needs a loan to do so, 'A' becomes the mortgagor when they transfer an interest in the specific immovable property (the purchased home) to secure the loan. 'A' is responsible for repaying the loan according to the agreed-upon terms.

Who is a Mortgagee?

A mortgagee is a lender or financial institution that provides a mortgage loan to a borrower, commonly known as the mortgagor. In a mortgage transaction, the mortgagee is the recipient of the mortgage and holds the interest in the specific immovable property pledged as collateral. The term "mortgagee" is typically used in real estate and lending contexts, referring to the party that lends money for the purchase or refinancing of property and receives a security interest in return.

The mortgagee plays a crucial role in the mortgage process, as they have a legal claim on the mortgaged property until the borrower repays the loan in full. This legal interest ensures that the mortgagee has a right to take possession of the property and sell it if the mortgagor defaults on their loan payments. The mortgagee is also responsible for determining the terms and conditions of the mortgage loan, overseeing the servicing of the loan, and managing the title rights related to the property.

What is a Charge under the Transfer of Property Act?

The concept of a "Charge" under the Transfer of Property Act refers to an interest established over an immovable property to secure the repayment of a debt or obligation owed to another party. In essence, it is a financial encumbrance placed on a property without transferring ownership. Notably, not all charges are classified as mortgages, as the two terms are distinct. A charge serves as a legal mechanism to ensure the payment of a specified amount without necessitating a property transfer.

Key Elements of a Charge under the Transfer of Property Act:

Immovable Property: A charge must be linked to an immovable property, which can be either existing or future property belonging to the debtor. The intention is to create security that can be legally enforced.

Clear Specification: The property must be clearly identified and specified as collateral for the debt. Precise details about the property are vital for establishing a valid charge.

No Transfer of Ownership: Unlike a mortgage, a charge does not involve the transfer of property ownership or rights. It creates a personal obligation or the right to pay from the specified property.

Creation by Agreement: A charge can be created through a mutual agreement between the parties involved. It does not require specific technical language or formalities, but the intention to use the property as security must be evident from the agreement.

Operation of Law: Charges can also arise by operation of law, without the parties' explicit consent. This occurs when legal requirements compel certain obligations, even without the parties' intent.

Exceptions to Charges:

Two exceptions to charges are defined in Section 100 of the Transfer of Property Act:

Charges on Trust Property: A charge cannot be created on immovable property that serves as trust property for incurring expenses related to trust execution or maintenance.

Notice Requirement: If a property is transferred to a new owner without their knowledge of an existing charge on the property, the charge cannot be enforced against them.

Differences Between Charge and Lien:

A charge and a lien are distinct legal concepts:

Origin: A charge can be created by agreement or operation of law, while a lien arises solely by operation of law.
Applicability: A charge applies to immovable property, while a lien can pertain to both movable and immovable assets.
Possessory Nature: A charge is non-possessory, whereas a lien is possessory in nature.
Satisfaction of Claims: A charge holder can satisfy their claim by selling the property subject to the charge, while a lien holder can satisfy their claim through private sale or by retaining possession of the property.

Types of Charges under the Transfer of Property Act:

Two common types of charges are:

Fixed Charge: Created on specific, unchanging assets such as land, buildings, or machinery. The identity of the assets remains constant during the loan period, and the lender typically has significant control over them.

Floating Charge: Established on assets that can change or fluctuate, such as stock or debtors. These assets can be used in the ordinary course of business until the charge crystallizes, usually upon default or insolvency.

Registration of Charges:

Registration of charges is mandatory for corporations under the Companies Act, 2013. Companies must register charge particulars with the Registrar of Companies within 30 days of creating the charge. Failure to do so can render the charge void against the liquidator and other creditors. However, the charge remains valid until the company goes into liquidation.

If there is a valid reason for delay, the Registrar may condone it, allowing for late registration within 300 days of the charge's creation. The company can request an extension by submitting Form CHG-10 and providing a statement ensuring that the rights of intervening creditors are not adversely affected. In cases of continued non-compliance, the company can seek an extension from the Central Government under Section 87 of the Companies Act.

Case Law Examples on Charges under the Transfer of Property Act:

JK (Bombay) Private Ltd vs. New Kaiser-I-Hind Spinning and Weaving Co Ltd (1970 AIR 1041, 1970 SCR (3) 866): In this case, the court ruled that while a charge does not involve the transfer of interest or property, but rather the creation of a right for payment from a specific property, a mortgage, in contrast, entails the actual transfer of property or interest. The court emphasized that no specific wording is necessary to establish a charge; however, there must be a clear intention to create a property security for immediate payment.

Raychand Jivaji vs. Basappa Virappa Bellary (1940) 42 BOMLR 1113: The court in this case determined that it is sufficient to establish a charge if the document clearly indicates the intention to use the property as security for the payment of money, without transferring any rights or interests in the property.

Debi Singh and Ors. vs. Jagdish Saran Singh (AIR 1952 All 716): This case clarified that a mortgage is a legal arrangement in which a person borrows money, secures repayment, and pays interest by creating a right or charge in favor of the lender on their movable and/or immovable property.

Hasan vs. Mt Kalawati (147 IC 302, AIR 1933 All 934): The Calcutta High Court's decision in this case held that if an instrument is explicitly labeled as a mortgage and grants the mortgagee the power to recover the mortgaged money from the sale of the property, it should be treated as a mortgage. However, if the instrument does not overtly appear as a mortgage but instead establishes a lien or directs the recovery of money from a specific property without mentioning a sale, it creates a charge.

Understanding Sale under the Transfer of Property Act:

Definition of Sale under Transfer of Property Act: Sale, as defined under the Transfer of Property Act, refers to the transfer of ownership of a property in exchange for a price, whether paid, promised, partly paid, or partly promised. While the term "sale" is commonly associated with the purchase and sale of goods and services, under the Act, it specifically pertains to the sale of immovable property and is governed by Section 54 of the Transfer of Property Act, 1882.

Key Definitions from Section 3 of the Act: To fully grasp the concept of sale, it's essential to understand certain key definitions provided in Section 3 of the Transfer of Property Act:

Immovable Property: Immovable property includes all benefits arising from the land and objects attached to the earth but excludes standing timber, growing crops, or grass.
Instrument: Instrument signifies a non-testamentary, written document that formalizes a legal transaction, such as a contract, deed, bond, or lease.
Registered: Registered denotes that the document has been properly recorded in accordance with the provisions of the Registration Act, ensuring its legal validity.
Attached: Attached describes the physical union of two independent structures or objects, establishing a relationship between them.

Section 54 of the Transfer of Property Act: Section 54 of the Act offers a comprehensive definition of the term "sale" and outlines the manner in which the sale of immovable property can take place. In this context, sale implies the complete transfer of all rights in the property being sold, leaving no rights with the transferor.

Key Points from Section 54:

Sale involves the transfer of ownership in exchange for money consideration, whether paid, promised, part-paid, or part-promised.
It encompasses the sale of tangible and intangible immovable property, such as easement rights.

Contract for Sale: A contract for the sale of immovable property is a formal agreement that establishes specific terms between the parties involved. In this contract, the seller commits to selling or delivering the property to the buyer at a predetermined price agreed upon by the buyer. A contract of sale for goods is distinct from the sale of immovable property and is governed by separate laws.

Essentials of a Sale under Transfer of Property Act:

The essentials that must be met for a transaction to be considered a sale under the Transfer of Property Act include:

Parties: A sale involves at least two parties—the seller (transferor) and the buyer (transferee).
Competency: Both the seller and the buyer must be legally competent to enter into the transaction.
Money Consideration: Sale specifically entails the transfer of property in exchange for money, whether paid, partly paid, promised, or partly promised.
Conveyance: The transfer of immovable property can be accomplished through either a registered instrument or delivery of property, depending on the value of the property.
Registration: Sale deeds for tangible immovable property valued at Rs. 100 or more require registration under the Indian Registration Act, 1908.

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Rights and Liabilities of Buyer and Seller: Both the buyer and seller involved in a property sale have specific rights and liabilities:

The seller is obligated to disclose any material defects in the property or title, produce relevant documents of title, answer buyer's questions, and take care of the property until delivery. The seller must also pay any public charges, rents, or existing encumbrances.
The buyer must disclose any facts related to the property's value and pay the purchase money. The buyer bears the loss due to property damage, pays public charges and rents after ownership transfer, and retains encumbrance amounts if applicable.
The buyer is entitled to the benefits of property improvements, rents, and profits after ownership transfer, and may claim charges against the property for unpaid purchase money.

Understanding these elements and legal provisions is crucial for individuals involved in property transactions governed by the Transfer of Property Act.

Case Law Examples Related to Sale under the Transfer of Property Act:

Nahar Lal vs. Brijnath (1928 AC 385): In this case, the court ruled that if the registration of a document is carried out in violation of the provisions of the Registration Act, that document cannot be considered as duly registered. This judgment emphasizes the importance of adhering to the registration requirements outlined in the Registration Act for the validity of property documents.
Umakanta Das vs. Pradip Kumar Ray (AIR 1983 Ori 196): The court's judgment in this case pertains to the content of a sale deed. It states that if a sale deed includes a condition stipulating that the price will be paid within one year, contingent upon the buyer obtaining possession within that timeframe, and if possession is not acquired, the payment of the price will be deferred. Similarly, if the vendee does not gain possession of the property, the payment of the price may be withheld. This judgment clarifies the implications of such conditions within the context of a sale deed.
Raheja Universal Ltd. vs. NAC Ltd. (2012 4 SCC 148): In this case, the court elucidated that a contract for the sale of immovable property or an agreement to sell constitutes an agreement specifying the terms on which the sale of the property will occur. Such an agreement, in itself, does not create any interest or charge on the property. This judgment highlights the distinction between a contract for sale and the actual transfer of property, emphasizing that the former does not confer ownership rights.
Misabul Enterprises vs. Vijaya Srivastava (AIR 2003 Del. 15) : The judgment in this case underscores the necessity of a mutual agreement between the seller and the buyer in a contract of sale. It emphasizes that a valid contract of sale should be based on the consensus and understanding of both parties involved. This principle reinforces the fundamental requirement of mutual consent in property transactions governed by the Transfer of Property Act.

Gift Under the Transfer of Property Act:

Definition of Gift under the Transfer of Property Act: A gift under the Transfer of Property Act is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person, referred to as the 'donor,' to another person, known as the 'donee,' and accepted by or on behalf of the donee. The donor is the person transferring the property, while the donee is the recipient of the gift.

Essentials of a Gift under the Transfer of Property Act:

Involvement of Two Persons: A gift must involve two parties—the donor and the donee. The donor must be of sound mind, competent to make a gift, of the age of majority, and not disqualified by law.
Voluntary Transfer: The gift should be made voluntarily, without any undue influence, coercion, or force. It must be a result of the donor's free will.
Transfer of Ownership: A gift entails the transfer of both the property and its ownership, along with all associated rights and liabilities.
Existing and Transferable Property: The property subject to the gift must exist at the time of the gift, and it must be transferable. Gifts of uncertain or future assets are not valid.
Living Donor and Donee: Both the donor and the donee must be living at the time of the gift. If the donee dies before accepting the gift, the gift becomes void.
Gift Deed: A gift should be documented through a gift deed, which declares that the gift is voluntary and without consideration. It also affirms the donor's solvency.
Acceptance by Donee: The donee must accept the gift, and this acceptance should be recorded in the gift deed. Acceptance must occur during the donor's lifetime; otherwise, the gift may become invalid.

Void Gifts under the Transfer of Property Act: Gifts can be rendered void under various circumstances, including:

The donee dies before accepting the gift.
The gift is made for an illegal purpose.
A condition imposed on the gift is forbidden by law or is unlawful.
The donor or donee is incapable of making or receiving a gift, such as being a minor or of unsound mind.

Universal Donee: A universal donee, as defined in Section 128 of the Transfer of Property Act, means that when a transfer is made, the entire property of the donor, along with all debts and liabilities at the time of the transfer, is transferred to the donee. The donee becomes personally liable for these debts and liabilities.

Onerous Gift: Onerous gift, as defined in Section 127 of the Transfer of Property Act, pertains to a situation where a gift is made in one transfer to the same person with several items. In such cases, the donee has the option to accept one item and reject the others. This concept is based on the principle that one who receives a benefit must also bear the burden.

Creation of an Effective Gift: According to Section 123 of the Transfer of Property Act, the transfer of immovable property by way of gift must be executed through a registered instrument or on behalf of the donor, and it must be attested by at least two witnesses. For movable property, either a registered instrument or delivery of possession is sufficient.

Grounds for Revocation or Suspension of a Gift: Section 126 of the Transfer of Property Act provides grounds on which a gift can be revoked or suspended, including:

Coercion or undue influence in obtaining the donor's consent.
Dependency of the gift's validity on a specified event not subject to the donor's will.

Case Laws related to Gift under Transfer of Property Act:

Padma Chand vs. Laxmi Devi, 2010 (173) DLT 604: The court held that a gift is a voluntary transfer of property without any consideration, carried out by the owner of the property, resulting in a transfer of ownership without pecuniary benefits.
Vimala vs. Narayanaswamy, 1996 ALHC 4170 KAR : The court ruled that when a document is intended to take immediate effect, transferring the property during the executor's lifetime, it constitutes a gift deed rather than a will.
D.N. Dawar vs. Ganga Ram Saran Dhama, AIR 1993 Del.P 19: In this case, the court emphasized that for the gift of immovable property, mere delivery of possession is insufficient to transfer title if the document is not registered.
Shahdev vs. Sheikh Papa (1905) 29 Bom: The court held that gifts of immovable property are compulsorily registerable and serve as notice to subsequent transfers, although they may not apply to transactions preceding registration.

Lease in Transfer of Property Act:

Definition of Lease under Transfer of Property Act: A lease of immovable property, as defined under the Transfer of Property Act, is the transfer of the right to enjoy such property for a certain period, either express or implied, or in perpetuity, in consideration of a price or promise, or money, a share of crops, services, or any other valuable consideration, to be periodically rendered or on specified occasions, to the transferee (donee) by the transferor (donor). Lease-related provisions in the Transfer of Property Act, 1882 are covered from Section 105 to Section 117, and a lease can only pertain to immovable property.

Lease under the Transfer of Property Act: Section 105 of the Transfer of Property Act provides the definition of a lease, stating that it involves the transfer of immovable property for a specific duration, in consideration of which the transferee accepts the terms and conditions specified in the agreement. The Transfer of Property Act, 1882, governs leases, encompassing Sections 105 to 117.

Key Parties in a Lease:

Lessor: The transferor, or person granting the lease, is referred to as the lessor. The lessor retains ownership of the property but transfers the right to possession and enjoyment to the lessee.
Lessee: The transferee, or person receiving the lease, is known as the lessee. The lessee gains the right to possess and enjoy the property for the agreed-upon duration.

Essentials of a Lease under Transfer of Property Act: To constitute a valid lease under the Transfer of Property Act, certain essential elements must be met:

Competent Parties: Both lessor and lessee must have the legal capacity to enter into a contract. The lessor should be the rightful owner of the property and mentally competent, not disqualified by any legal provisions.
Right of Possession: A lease involves the transfer of the right to possess and enjoy the property while retaining ownership with the lessor. It differs from a sale where ownership is also transferred.
Consideration: A lease must involve consideration, which can be in the form of rent or premium. It represents the price paid or promised for the transfer of possession and enjoyment.
Acceptance: The lessee must accept the terms and conditions of the lease agreement, acknowledging the transfer of rights and responsibilities.
Specified Time Period: A lease always has a defined duration, which should be mentioned in the lease agreement. While the time period can be relaxed at the option of the lessor, it is generally specified.
Right to Enjoy: The lessee gains the right to enjoy the property for the agreed-upon duration but does not acquire ownership rights. The property may not be further transferred without the lessor's consent.

Termination of a Lease: A lease can be terminated through various means as stipulated in the Transfer of Property Act:

Lapse of Time: The lease terminates upon the expiry of the specified duration mentioned in the lease agreement.
Specified Event: If the lease is based on the occurrence of a particular event, it terminates when that event takes place.
Interest Termination: When the lessor's interest in the property is terminated or disposed of, the lease also comes to an end.
Same Owner: If the interests of both the lessor and the lessee merge into one, the lease is terminated.
Express Surrender: When both parties mutually agree to terminate the lease before its stipulated duration, it can be surrendered.
Implied Surrender: If the lessee enters into a new lease agreement with another party, it implies the surrender of the existing lease.
Forfeiture: A lease can be forfeited if the lessee breaches a condition, conveys the title to a third party, or becomes bankrupt, depending on the terms of the lease.

Notice to Quit and Its Implications: A notice to quit is a formal written statement issued to the lessee by the lessor when the lessee intends to terminate the lease agreement, either on the grounds specified in Section 111 or upon the expiry of the duration mentioned in Section 106. The notice to quit can be waived, either expressly or implicitly, as described in Section 112. The waiver indicates the intention to continue the existing lease.

Effect of Holding Over: Section 116 explains the effect of holding over, where the lessee retains possession after the termination of the lease. If the lessor accepts this, it is not considered a new lease but rather a continuation of the existing one. The lease becomes renewable, typically as a monthly or yearly lease, based on the terms outlined in Section 106.

Case Laws related to Lease under Transfer of Property Act:

State Bank of Hyderabad vs. Nehru Palace Hotels, AIR 1991 SC 2130: In this case, the court upheld that a lease involves the transfer of the right to enjoy property for a specified duration, in consideration of a price paid or promised, be it in cash or any other valuable consideration.
Bengal A & I Corporation vs. Corporation of Calcutta, AIR 1960 Cal 123 (133): The court held that the subject matter of a lease must be clearly defined and ascertainable. A lease cannot be valid when the land is yet to be identified and carved out of a larger parcel of land.
Jaswant Singh Mathura Singh vs. Ahmedabad Municipal Corporation, AIR 1991 SC 2130: In this case, the court determined that a lease grants a right or interest in enjoying the demised property, and the tenant has the right to retain possession until legally terminated and evicted in accordance with the law.

Important PYQs of Transfer of Property Act for Judiciary

1. An unequivocal and irrevocable settlement conferring enjoyment rights over the property in present and each getting a specific share in it upon the death of the settlor would create:

A. A contingent interest in favour of each of the beneficiary

B. A vested interest in favour of each of the beneficiary

C. Either A or B depending on the facts of the case

D. Neither A nor B, as it would be void

2. B gifts a share of business to A on the condition that in case B does not like the future daughter-in-law of B, the property will revert back to B. Which of the following statements will apply?

A. The gift and condition and valid

B. The gift is absolute, condition is invalid and discarded

C. The gift is void in totality

D. The gift is valid in case B’s son choose not to marry

3. B makes a gift deed in favour of A. The gift deed contains transfer of three houses unburdened by obligations, two houses which are mortgaged with C, two cars under the hire purchase agreement and three horses, one of which is lame. Which of the following statements will apply?

A. A can accept the whole gift, he has an option to accepting or not accepting the lame horse

B. A must accept the whole gift or refuse the same

C. A can choose to take gift of three houses and avoid all the rest

D. A has a choice to take over movable property and avoid immovable property

4. B makes a gift of residential house comprising of three distinct units, one each to D, E and F. E refuses the gift. Which of the following statements will apply?

A. One unit will default back to B

B. The house will be divided equally between D and F

C. E will continue to own one unit

D. None of these

5. B transfers some property to C with a condition that in case A marries during B’s lifetime the property will go to B. A marries during B’s life. Which of the following statements will apply?

A. The transfer to C is void and property reverts back to B

B. The transfer and condition are valid, and the property will transfer to A

C. The transfer is valid, but condition is invalid property remains with C

D. The transfer is voidable at C’s option

Tips to prepare Transfer of Property Act for Judiciary

Transfer of Property Act for Judiciary exams is important. However, you must understand the concepts thoroughly to score better in the examination. Here are quick tips for preparing for Transfer of Property Act for all state Judiciary Exams:

Go through the previous year's papers and make a comprehensive list of all the topics that were asked in the previous years.
Once you have done that, make sure that you read this article and download the notes for your preparation.
Read from reliable sources, and start making your own notes.
Include examples, explanations and essential case laws.
This will help you in developing a better understanding of all the subjects.
Make sure that your notes are brief; make short notes while covering all the essential topics and details.
After making notes, make sure you revise everything 2-3 times at least.
Practice PYQs and sample questions to test your knowledge on a regular basis.

Conclusion:

To prepare Transfer of Property Act for Judiciary you should make sure that all the important topics of Transfer of Property Act are covered by you and you make notes for yoursef\lf.
For revision you should prefer reading your notes majorly.
Reach out to your mentors and faculties in case you find difficulty in making a strategy to study for Transfer of Property Act.

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Transfer of property act - notes, case laws and study material, module 1 - introduction.

General Introduction of the Act
History of the Act
Salient Features of the Act
Important Definitions Under the Act

Module 2 - Kinds of Property

Movable and Immovable Property
Tangible and Intangible Property
Intellectual Property
Copyright - Patents and Designs
Geographical Indications

Module 3 - Other Provisions

Persons Competent to Transfer
Operation of Transfer
Oral Transfer

Module 4 - General Principles of Transfer of Property

Alienation of Property
Transfer to an Unborn Person
Rule against Perpetuity
Direction for Accumulation
Vested Interest
Contingent Interest
Difference Between Vested and Contingent Interest
Conditional transfer
Doctrine of Election
Rule Relating to Apportionment

Module 5 - Transfer of Immovable Property

Transfer by Ostensible Owner (Doctrine of Holding-out)
Transfer by One Co-owner
Rule of Estoppel
Doctrine of Priority
Transfer of Property During Pendency of Suit (Doctrine of Lis Pendens)
Fraudulent transfer
The Doctrine of Part Performance

Module 6 - Sales

'Sale and Contract for Sale' - Meaning and Its Essentials
Right and liabilities of buyer and seller
Encumbrances and Court Sale
Marshalling by Subsequent Purchaser

Module 7 - Mortgages

Meaning of Mortage and Its Essentials
Types of Mortgage
Rights and Liabilities of Mortgagor
Rights and Liabilities of Mortgagee
Subsequent Mortgage
The Doctrine of Marshalling & Contribution
Doctrine of Subrogation
The Charges

Module 8 - Leases

Lease Meaning and Its Essentials
Duration of Lease
Leases How Made
Rights and Liabilities of Lessor and Lessee
Determination of Lease
Exemption of Leases for Agricultural Purpose
Definition of the lease, lease how made
Concept of Easement
Difference between Lease and License

Module 9 - Exchange

Exchange Meaning and Its Essentials
Rights and Liabilities of Parties
Exchange of Money

Module 10 - Gifts

Transfer of Gifts Meaning and Its Essentials
Transfer of Gifts How Made
Gift of Existing and Future Property
Onerous Gift
Universal Donee

Module 11 - Actionable Claims

Actionable Claims Meaning and Its Essentials
Transfer of Actionable Claims
Notice of Transfer of Actionable Claim

Case Study 5 - Transfer of Property Act 1882

Mr. A, a Hindu , who has separated from his father Mr. B, sells to Mr. C three fields , F1,F2 & F3 representing that he himself is authorized to transfer the same. Of these fields transferred F3 does not belong to Mr. A , it has been retained by his father Mr. B at the time of partition. On death of Mr. B , Mr. A being legal heir obtain the possession of field F3 and immediately sold the F3 to Mr. D.

Discuss rights of Mr. C & Mr. D.

Case Study 5 - Transfer of Property Act 1882

Section 43 of Transfer of Property Act, 1882 provides that

Transfer by unauthorized person who subsequently acquires interest in property transferred.

Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

The general rule of law is "nemodat quod non-habet"i.e. no one can transfer that which he himself does not have. If a person does not have title to property, he cannot transfer that property validly transfer to another person.

One of the exceptions to this rule is contained in Section 43 of the Act, 1882 as mentioned above.

The principle of this section is based on partly doctrine of estoppel and partly on the equitable doctrine that a man who has promised more than he can perform must make good his promise when he becomes capable of performance. Under Section 43 the only person who can defeat the right of an original transferee is a subsequent transferee for consideration who does not have the notice of previous contract. Where transfer deed is registered , it is considered as a notice to the whole world.

In case where transfer deed is not registered , the subsequent transferee has below mentioned remedies;

i) He can file a case for breach of contract against the transferor and can obtain damages; ii) He can file a criminal case of cheating against the transferor; iii) He can claim the money paid by him to the transferor through appropriate action in a court.

We conclude as follow

1. In the given case Mr. A has mad a representation to Mr. C about his title to the filed F3, here the doctrine of estoppel becomes operational. In case the Sale Deed with Mr. C has been registered ,it operates as a Constructive Notice to Mr. D and the whole world related to filed F3 and Mr. D in this case cannot defeat right of Mr. C claiming for field F3.

2. Mr. D has right to file civil suit for recovery of his money against Mr. A or he has right to file a criminal case also.

3. If Sale Deed between Mr. A and Mr. C is not registered , Mr. D being subsequent transferee for consideration will defeat the right of Mr. C.

4. In this case Mr. C has same right to sue Mr. A for recovery of money in civil suit or file a criminal case also.

It is a well-established fact that a person cannot transfer to another person more than he has or a person cannot transfer to another person what he does not has at the time of transfer. The provisions of Section 43 also provides that in a case when a person subsequently acquired any right in a property transferred earlier ,then he is obliged to transfer the same to the transferee in case contract of transfer subsists.

DISCLAIMER: The case law presented here is only for information of readers. the views are personal. In case of necessity do consult with professionals.

Published by

FCS Deepak Pratap Singh (Manager Compliance -SBI General Insurance Co. Ltd.) Category Income Tax Report

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Transfer of Property Act, 1882

Adv. Pooja Gupta

Updated on: September 20, 2023

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TRANSFER OF PROPERTY ACT, 1882: The Property Transfer Act is a law that governs the transfer In India, property is divided into two types: movable and immovable. This Act governs the transfer of property/assets (movable or immovable) between living people, & it took effect on July 1, 1882 .

The Transfer of Property Act is a contract law extension that is comparable to succession laws and is one of the oldest laws in the Indian court system. Those intending to transfer their immovable property should be familiar with the Transfer of Property Act’s major clauses.

Table of Contents

The Purpose/Objective of the Act

Parties: A property transfer can be completed by the act of 2 or more parties or by the application of the law.

The Transfer of Property Act directs the conveyance of immovable property from one living human being to another (inter vivos). Furthermore, the Act governs both corporate and personal property transfers. On the other hand, the Transfer of Property Act applies to acts of parties instead of lawful transfer.

history of TP, ACT

The Transfer of Property Act of 1882 has a long and illustrious history

Prior to the establishment of the British Raj system in India, Hindus & Muslims were governed according to their own property laws. In contrast to English law, when Britishers became involved in the Indian judicial system, they established informal courts in which there was no distinct and concrete law. Numerous High Courts have ruled that specific property transfer acts must be carried out. The Privy Council acknowledged the concerns and suggested the authorities to act quickly because the concept of moral, equity, and justice was puzzling and created numerous uncertainties.

As a consequence, Queen Elizabeth II of the United Kingdom appointed the first commission to resolve the problem. But when relates to real estate transfers. After some measures were adopted in the Legislative Council in 1877, the report was delivered to India. It was then sent to the appointing authority, but due to public outcry, it was withdrawn. The Second Law Commission had to rewrite the bill. The Laws of Conveyancing & Property Act of 1881, in particular, was a source of inspiration for several of the clauses. The law has been written in such a way that it is suited for the Indian populace and easy to understand for a non-professional jury.

As a result of the Second Commission’s repeated modifications, the Act became more comprehensive.

As an outcome, a special committee was formed to implement the essential legal provisions. As a result, the statute has undergone multiple amendments in an attempt to widen its scope and remedy existing flaws.

types of Property Transfers

Different types of Property Transfers are availabl e :

The Transfer of Property Act defines six primary forms of property transfers:

Mortgage exchanges
Actionable claim

Certain properties are prohibited from being transferred under the Transfer of Property Act.

Sec 6 states that any type of property may be transferred, with the exception of:

The possibilities of heir succession.
A right of re-entry in the event that any conditional leasing agreements are breached.
You can’t sell or transfer an easement.

For example, the right of way and the right of light,

Religious office privileges, such as mahant and priest, cannot be transferred.
The right to maintenance in the future is non-transferable.
It is impossible to transfer a mere right to sue.
There is no such thing as a government job or a wage.
The government’s military, navy, and Air Force retirees are eligible for a stipend

Who has the Authority to Transfer Property?

Sec.7 of this act, states that Everyone who is eligible & competent to enter into a contract, i.e. a major & of sound mind, or who is not prohibited by law from contracting, is able to do so, according to Sec. 7 of the Transfer of Property Act of 1882.

An individual should be at least 18 years of age & of sound mind to enter into contracts under I.C.A,1872.

A Verbal/Oral agreement is used to Transfer Property (Sec.9)

Property transfers can be completed through oral agreements, according to Section 9 of the Act, unless the legislation clearly indicates that a written agreement is required to complete the transaction. In the specific instance of immovable property worth less than Rs 100, such transfers could be formed through the use of a registered instrument or by physical delivery of the property. It suggests that approximately no immovable property can be conveyed into the name of another individual without a legal document being executed.

Verbal contracts, on the other hand, are generally ineffective, with the exception of division of property, where members of the family may enter into a verbal agreement & divide the asset for pragmatic purposes. Written contracts are usually needed for a property transaction to be legally enforceable. This is true, among other things, for sale, gifts, and leases.

Transfer Property to an Unborn Child

The terms of the Transfer of Property Act must be considered by anyone who desires to leave their property to more than one generation. This is considered to prevent future legal issues.

Sections 13 & 14 of the Transfer of Property Act make it illegal to transfer property directly to an unborn baby. To provide it, the person transferring assets first must do it in the account of those who are still living at the time of the transfer.

Until the unborn child is born, the property must be held in this person’s name. Basically, a parental interest in a property must come before the unborn child’s interest in the property.

Until the unborn child is born, the property must be held in this person’s name. In essence, the unborn child’s interest in a property should be initiated by a prior interest.

If the criteria have been met, the property can be transferred conditionally under Section 25 of the Transfer of Property Act, of 1882. If the requirement became unfeasible, illegal, opposed to public policy, or immoral, the transfer would be void.

several types of Property Transfers

Under TP, ACT 1882 There are several types of property transfers

Sale of immovable property: the buyer transfers ownership to the seller in exchange for a price. From the seller, the buyer receives tangible property.
Immovable property mortgage: a mortgage is used to transfer property from the buyer to the seller, and the immovable property is mortgaged to guarantee a loan. The mortgagor should pay the principal debt plus interest in order to have the immovable property released from the mortgage.
Immovable property leases: in this case, possession of the property is transferred from one person to another for a service charge, but possession is not transferred.
Immovable property exchange: a property exchange occurs when two people agree to transfer immovable property.
Gift of immovable property: As per the Act, a gift is defined as a violent or nonviolent transaction of movable property or immovable property through one individual, the donee, to another person, the donor, that is acknowledged by and on behalf of the donee.

The purpose of the Act was to provide a comprehensive piece of legislation that explains the transfer in simple English. When it was first presented, however, it was incomplete and had a lot of uncertainties. It has experienced multiple changes, and the act has repeatedly demonstrated its effectiveness. Additional law, such as the 1882 Transfer of Property Act, is needed in India.

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Judgments 4625

...subject suit thus came to be filed by the respondent/plaintiff on the basis of Section 44 of the Transfer of ...the expression in Section 44 of the Transfer of Property Act , 1882 and therefore it was held th... property N-47, Panchsheel Park, New Delhi is or is not an undivided dwelling-house as per Section 44 of the Transfer ...

... transfer is hit under Section 44 of the Transfer of Property Act , 1882 which provides ... Section 44 of the Transfer of Property Act , 1882 , is not sustainable at all. The court is not g... Section 44 of the Transfer of Property Act , 1882 would be applicable regarding the proposition ...

...substantive provisions of law, there is no bar for the co-owner to transfer the undivided share as per Section 44 of the Transfer of Property Act , 1882 . ...by the respondent in refusing to register the settlement deed dated 27.04.2022 presented by the petitioner mainly on the ground that the property succeeded by the petitioner 1... property which is undivided and the petitioner succeeded jointly based on the will executed by her father, hence, opposed the writ petition. 4. Heard both sides and perused...

...without the consent of the other coparceners by involving the power under section 44 of the Transfer of Property Act , 1882 without giving boundaries of transacted share,...covered by the clarification. If that is so, the document will be registered. Otherwise there will be issued refusal memo stating the reasons. Neither Act of 1882 nor Act of 1893 bare transfer by co-owner. ...Registering Officer. 6. In view of the above, if the seller or mortgagor in a sale deed or mortgage document, prefer to transfer the undivided proportionate share in the joint-hold property ...

...respondent No. 1, the appellant could not have sought possession in view of Section 44 of the Transfer of ...it was incumbent for him to seek partition in accordance with Section 4 of the Partition Act , 1893. I find no...Judgment (Oral)C.M No. 18494/2014 (u/S 151 CPC)Allowed subject to all just exceptions.C.M No. 18493/2014 (u/S 5 of the Limitation Act ...

.... In substantive provisions of law, there is no bar for the co-owner to sell the undivided share as per Section 44 of the Transfer of Property Act , 1882 . The only restriction on the purchaser is that he...

...stranger to the family. Essentially, this is a suit filed under Section 44 of the Transfer of Property Act , 1882 .3. On an application for injunction the Trial Cour... Section 44 of the Transfer of Property Act , 1882 , a stranger to the family can be restrained to...proceeded on the basis of an information slip issued by the authority, which cannot be treated as finally published Record of Rights.8. There is no quarrel that under...

... Section 44 of the Transfer of Property Act , 1882 . RSA No.2001/2017 12. A... Property Act , 1882 enables sale of defendants share and that recital was absent in Exs.P.1 to P.3 and the interpretation of Section 133 of Karnataka Land Revenue Act and ...the appeal. He further submits that the presumption under Section 133 of the Karnataka Land Revenue Act , 1964 and Section 44 of the Transfer of ...

...case was concerned with the right conferred by the second paragraph of Section 44 of the Transfer of Property Act , 1882 . Therefore what was stated in that case regarding.... To start with it was accepted as a part of custom and was applied by the courts, particularly in Northern India, accordingly. It received statutory recognition in Section 22 of Hindu Succession Act ..., 1962 Supp 3 SCR 724, 1962 Jab LJ 676 this Court was concerned, inter alia, with the constitutionality of Section 16 of the Punjab Pre-emption Act , 1913, which conferred right of pre-emption...

... Section 44 of the Transfer of Property Act , 1882 and Section 4 of the Partition Act and as to whether the building could be put to us...all contentions, including the question whether the property is a dwelling house. The question as to the application of Section 44 of the Transfer of Property ...effect of Section 44 of the Transfer of Property Act , 1882 and Section 4 of the Partition Act or any other material. We may ...

...रिहदे।" 4. The contention of the learned counsel for the petitioners is that given the provisions of Section 44 of the Transfer of Property ...as to how the provision of Section 44 of the Transfer of the Property Act would create any obligation or contract in favour of the petitioner, for prevention of breach of which, injunction could be...asked to address the Court on the aspect of the maintainability of the suit for injunction given the provisions of Section 38 read with clause (e) of Section 41 of the Specific Relief Act , 1963, and...

....6. On the other hand, Mr. Jaiswal supported the impugned order. He relied upon Section 44 of the Transfer of ... Act , 1882 and contended that the applicants herein have not purchased the entire property . Their remedy is to institute suit for general partition.7. As noted earlier, the earlier...application under Section 115 of the Code of Civil Procedure, 1908 (for short, C.P.C’), the applicants have challenged the judgment and order dated 27.6.2011 passed by the learned Jt. Civil Judge, Sr. Dn...

... which is dealt under Section 44 of the Transfer of Property Act , 1882 . The only restriction on the purchaser is t...ground that the fifth respondent is having 1/6thshare of property in respect of which preliminary decree is already passed. Therefore, based on that protest petition, the impugned refusal...

...Hindu Succession Act , 1956 and provisions of agnate and cognate acts being Section 4 of the Partition Act , 1893 and Section 44 of the Transfer ...provisions of the three Acts has to be similar. 9. To the aforesaid, I must add that, though the basic foundation of the provisions of Section 44 ...interpretation of Section 44 of Transfer 6 of Property Act , 1882 must take ...

... Section 4 of the Partition Act were pari materia with the provisions of Section 44 of the Transfer of Property Act , 1882 . It was observed that...family were wholly irrelevant in considering Section 44 of the Transfer of Property Act and what is relevant for the purpose of such proceeding is whether the dwelling house belonged to an undivid...arising under Section 44 of the Transfer of Property Act . Section 44 of the Transfer of Property Act also has a similar provision which reads as under:...

... Section 44 of the Transfer of Property Act , 1882 , entitles the co-owners to sell his undivided ...order as well as the previous order of 15.10.2012 are mutually inconsistent. The order of 15.10.2012 was premised upon the fact that...impugned in the present appeal i.e the order dated 15.10.2012, this Court notices, sets out an obvious and well established legal proposition arising from Section 44 of the Transfer ...

...holding is partitioned amongst all co-sharers by referring to Section 44 of the Transfer of Property Act , ...with the entire body of joint/co-owners. Our above conclusion draws sustenance from Section 44 of the Transfer of Property ... Act and a reproduction thereof would place our conclusions in perspective, as under:—“ 44 . Transfer by one co-owner.—Where one or two or more co-owners of immovable property legally...

...the petitioner that the respondent No.2, without considering the facts, the provisions contained in Section 44 of the Transfer of Property Act , 1882 and the settled legal positio...parties have settled the dispute, the respondent authority has totally misconstrued the same and has not appreciated the said fact. It is submitted that as per the provisions of Section 44 of the Transfer ... 3.2 The respondent No.5, being dissatisfied with the order passed by the respondent No.3, preferred a revision application before the respondent No.2. It is the case of ...

...Sripathi Rao, learned counsel for the revision petitioner contended that in view of Section 44 of the Transfer of ... Section 44 of the Transfer of Property Act confers right to the revision petitioner to claim the right of pre-emption.... Section 44 of the Transfer of Property Act mandates that where one of two or more co-owners of immovable ...

...contended that in view of Section 44 of the Transfer of Property Act , 1882 , the revisi... Act confers right to the revision petitioner to claim the right of pre-emption. Section 44 of the Transfer of Property ... Section 44 of the Transfer of Property Act , no right of pre-emption is conferred on the revision petitioner and even other...

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SECTION 3 OF TRANSFER OF PROPERTY ACT, 1882 & DOCTRINE OF FIXTURES by-Oishi Sen

The Transfer of Property Act, 1882 (hereinafter referred to as TOPA or TP Act or the Act) is one of the most important legislations of the nineteenth century and still holds an important place among the books of statutes. The Act’s main objective is to deal with the transfer the immovable property although such is not exhaustive. The term ‘property’ has a very wide ambit and includes things which carry some value and over which one can claim rights of ownership. To give a comprehensive meaning to the term ‘Property’, the Bombay High Court in its judgement in Raichand v. Dattatrya2 explained that it can be said to include all legal rights of a person except one’s personal rights and this constitutes the person’s personal status or conditions. This paper aims at a detailed study of the Interpretation Clause, i.e., Section 3 of the TP Act, inter alia its clauses and allied laws, with specific reference to immovable property and “attached to earth”. The paper would also provide insights into the doctrines that can be inferred from Section 3 of TOPA and will especially focus on the Doctrine of Fixtures in the context of English law as well as Indian law. Necessary case laws have been provided to study judicial trends in India with respect to fixtures and to support facts and findings. Keywords:- Transfer of Property Act, interpretation clause, immovable property, attached to earth, fixtures

INTRODUCTION

Section 3 of the TP Act is the “Interpretation Clause” of the Act. It gives the statutory definitions of 7 terms which have been frequently repeated throughout the TOPA. These 7 terms are namely- (1) immovable property, (2) instrument, (3) attested, (4) registered, (5) attached to the earth, (6) actionable claim and (7) notice.3 It is a comprehensive statute laying down the ambit and explanations of each of these terms for reference while reading the Act. As said earlier, TOPA deals mainly with immovable property although it is rather surprising that it does not elaborately define “immovable property” in its interpretation clause or elsewhere. The concept of immovable property, the allied laws and other aspects of Section 3 of the TOPA will be explained in details in the paper. By reading the TP Act, one would come across the various doctrines enshrined in it, most of which have their roots in the English Law. The Doctrine of Fixtures is enshrined in the TOPA and is based on the principle derived from the maxim- “quicquid plantatur solo, solo cedit”4; meaning whatever is attached to the earth/soil, becomes a part of it. Section 3, Paragraph 6 of TOPA provides the definition of “attached to earth” thus confirming the doctrine of fixtures in the context of Indian law. These come under the definition of immovable property and further determined by a prescribed two-fold test5. At times, this doctrine is applied to even movable properties attached to immovable objects fixed to the earth, however, standing timber, growing crops and grass, although attached to the earth, do not.6 This exclusion will be elaborately dealt with in this paper. UNDERSTANDING THE INTERPRETATION CLAUSE- SECTION 3 OF TOPA

Section 3 of the TP Act serves the purpose of an interpretation clause in the Act. An interpretation clause is one that defines the important words and phrases that have been used repetitively in a written document.7

The above mentioned clause is comprehensive in providing for the meaning of some of the important terms included in the Act. This paper would focus on the terminologies of immovable property and the phrase “attached to the earth” provided in Section 3 of TOPA, explanations and judicial interpretations thereof. (i) Immovable property

Section 3 does not provide for a proper and all-round definition for immovable property but merely provides a negative definition. Paragraph 2 of Section 3 of the TP Act merely provide what all are not to be considered as immovable property- “Immovable property does not include standing timber, growing crops or grass.” (a) Standing timber-

The term refers to trees whose timber is valuable for commercial purposes, i.e., those trees which are intended to be cut in a a suitable period of time so that their wood can be used for construction and other purposes, for example, teak, bamboo, shisham, and so on. All standing trees are not immovable property. Whether a tree is immovable property or not is dependent on the purpose or circumstance of the tree and if the benefits of the tree can be enjoyed only whilst it is attached to the earth. For instance, a fruit-bearing tree, such as an apple tree, can only bear fruits till it is attached to the earth, i.e, intended for long-term benefits, and thus is immovable property. In Jagdish v. Mangal Pandey8, the court held that the following parameters must be determined to check if a tree comes within the ambit of standing tree- (a) Nature of the tree (b) Intent of the owner, i.e., whether it is meant to be cut in a short while or whether it is intended for long term benefits On the other hand, a tree of valuable timber is useful only after it is cut. The Allahabad High Court described the above purpose for the legislature’s intent to exempt standing timber from the ambit of immovable property- “The reason why they have been excepted from the definition is that, though they are standing for the time being, they are meant not to remain standing, that they can be brought to use only after they have been cut and that they are meant to be cut sooner or later. It is on account of their nature or character that they have been taken out of the definition of immoveable property.”9 Thus if the intention is to cut the tree at some point to gain benefits from its parts for commercial purposes, it is to be considered as movable property.10 (b) Growing crops-

For growing crops, such as wheat, corn, sugarcane, and so on, the above explanation in (a) stands valid since they are mainly produced for human consumption. They are sown and grown with the purpose of consumption and are useful only after they are harvested. Thus they do not have any independent existence or purpose other than the harvest and are therefore movable properties. (c) Grass-

Grass is also not considered as immovable property for its only useful purpose as fodder, therefore it is movable property. However, if a person has any sort of contract which gives him/her right over the grass, then it becomes immovable property. A better definition of immovable property can be found in Section 3(26) of the General Clauses Act, 1897, which provides- “Immovable property include land, benefits to arise out of land and things attached to the earth.”11 Section 2, clause 6 of the Registration Act, too, gives an insight into the statutory definition of immovable property as a property which is inclusive benefits “arising out of land”, such hereditary rights, right of way, and so on.12 More comprehensive definitions of immovable property can be found in the General Clauses Act, 1897 and in the Registration Act, 1908. (a) Section 3, clause 26 of the General Clauses Act provides that the following things come under the purview of immovable property13 – • Land

• Benefits arising out of the land • Things attached to the earth • Things permanently fastened to things attached to the earth

(b) Section 2 clause 6 of the Registration Act which provides that immovable property “includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.”14 Thus we find that there is a consensus between the TOPA and the Registration Act as far as the exclusion of standing timber, crops and grass from the definition of immovable property is considered; however, the General Clauses Act prescribes no such exclusion. Sukry Kurdepa v. Goondakull15 is one of the leading cases on this subject, wherein Justice Holloway had opined that if a thing cannot be removed from one place without causing damage to it, then it is to be considered as immovable property. Thus, after combing through the above definitions, the following are consistently considered as immovable property- – Land- Land includes the surface of the earth, and all things which are in their natural state present above or below the earth’s surface, such as minerals, lakes, etc. – Things that are attached to the land or to an object permanently fastened to the land – Benefits that can be derived from the land or objects attached thereto.

(ii) Attached to the earth

Paragraph 6 of this interpretation clause supplies the expression – “attached to earth”, which is further elaborated to include the following- “(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached”16 From the above definition, the definitions above provide for what all to be considered as immovable property and the definition provides for examples as well. Moreover, attention must be given to sub-clause (c), which specifies “for the permanent beneficial enjoyment of that to which it is attached”, which, when read along with the discussion above, can be inferred to be in consensus with the exclusion of standing timer, grass and crops from the ambit of immovable property. In Anand Behra v. State of Orissa17, the petitioner has acquired license from the proprietor the Raja of Parikud, to fish in certain areas of Chillika lake and sell those. When the property was taken over by the state government, they refused to recognise the license. The Supreme Court held that the lake is an immovable property and applied the principle of “profit a prendre” (French meaning- right of taking) to justify the petitioner’s right to enter the estate and catch fish thereof. The application of the above principle in India is regarded as a benefit arising out of the land and is thus immovable property. The following excerpt from the judgement must be referred to:- “As fish do not come under that category………the definition in the General Clauses Act as a benefit arising out of land it follows that it is immoveable property within the meaning of The Transfer of Property Act.” In Indian law, movable properties assume the stature of immovable property when they are affixed into the land, or are fastened to something that is permanently attached to the earth. When they are embedded with an intent to keep it so for a long period of time and in a manner that removing them would cause damage to property, they are called fixtures. In India, the doctrine of fixture as applied in the English law, had little to no relevance post the legislation of TOPA.18 In Ismai Kani Rowthen v. Nazarali Sahib19, Justice Bhashyam Ayyanggar had refused to adopt the doctrine of fixtures. However, the doctrine and the two-fold test are applied by the Indian judiciary, however not explicitly by the term. However, paragraph 6 of Section 3 of TOPA with reference to “attached to the earth”, Section 2(6) of the Registration Act and Section

3(26) of the General Clauses Act and their provisions which refer to things attached to the earth, firmly fastened to things attached to the earth and benefits derived from the land, are equivalent to the doctrine of fixture. In Official Liquidator v. Sri Krishna Deo & Ors20., the Allahabad High Court pronounced a judgement which was in consensus with the doctrine of fixture and the two-fold test to determine fixtures. It referred to extent with which the machinery was attached in the oil factory and the purpose of the machine and held that while readily detachable, an equipment attached to their bases with screws and nuts is not movable because it has been set up with the specific purpose of operating an oil factory and not with the purpose of being dismantled after a short use. The law relating to the doctrine of fixture has been elaborated in the next topic of this paper.

THE DOCTRINE OF FIXTURES

The principle of this doctrine is governed by the Latin-French phrase: “quic quid plantatur solo, solo cedit”, which means what is attached to the soil, becomes a part of it.21 Although the origin of the phrase is uncertain, it is believed to have its roots in the Roman doctrine of accessio.22 The doctrine of accession finds its application in the Common Law in the ambit of personal property, whereby, the owner of a property/object would also come into possession of another item if the two are joined inseparably.23 It can be derived that the purpose of giving effect to the doctrine in such cases is to prevent economic waste that would result if such inseparable items were to be separated. The doctrine of fixtures operates on a similar policy, although it purports to achieve more than just implementing such a policy.24 The doctrine of fixtures is believed to be derived from another source, the Latin phrase “cujus est solum ejus est usque ad coelum”, which refers to the ownership concept that the owner of a land or the landowner has possession from the centre of the earth (that land) to the heavens above it.25 Given that such a concept developed in the medieval periods, the extent of the truth in this phrase can be said to be a physical approach to the beliefs of the medieval people with respect to ownership of lands, coupled with the mystique of religious ceremonies associated to sale/purchase of lands.26 Therefore, it would not be surprising that anything that was placed on the land, or annexed to it with some degree of permanence, would thereafter be considered part and parcel of the land and would belong to the owner of such land. Now that we have perused through the concepts from which shaped the doctrine of fixtures as it is today, it is important to understand how a fixture differs from chattel. A fixture is a movable object/ chattel that has been brought onto a land or property and thereafter has been annexed to it that it is treated as part of the land. Such object is attached to the land in such a manner that the title of ownership of the fixture passes automatically with the title of the land.27 Chattel, however, is also a movable object that is brought onto the land but not treated as part of the land. Subsequently, the title to the chattel does not pass along with the transfer of title.28 It can be concluded from the discussion that some movable objects, fixtures, become associated with the property they are attached to and are then considered part and parcel of such property. Question arises as to how it is to be determined that when a fixture must be considered as part of the land it is brought onto. In Holland v. Hodgson29, a two-fold test was prescribed to determine whether an object was a fixture or not. The two fold test formulated herein is based on the following parameters:-

(a) Degree of annexation of the object- Indicates the physical connection of the concerned object to the land or to something else that was surely a fixture on the land. If removing the item would cause damage to the property unto which it is annexed, then such an item is deemed to be fixture. On another note, if the item is not attached to the property per se, but is of such heavy weight that it is held in place by gravity alone, such property might be considered a fixture provided that it is evident that the purpose of annexation must have been the same.30 (b) Purpose/ intent behind such annexation- This test looks into the purpose with which the object was brought onto the land. If the intent was to add on to enjoyment of the land, the object might be deemed as fixture; if the object was brought to be enjoyed in its own right, it is chattel.31 Therefore, it can be concluded that the 2 parameters are used to adjudge on the status of an object as fixture based on ‘objective intention’.32 Almost every time a property changes hands, the question has been recurring as to whether the lesser interests in the land, i.e., the objects annexed to it, are fixtures or not. The tests to determine the same were therefore much needed and were formulated in the 19th century in the owing to the industrial revolution and it also helped in answering the commercial arrangements which gave this ancient question a rather special status.33 The two parameters of the test, as aforementioned, each are individually implemented and are equally important to determine fixture, and complement each other. For instance, the law in this area has been surveyed vide the decision of the House of Lords in Elitestone Ltd v. Morris34. In this case the question arose, as to whether a building was fixture. The facts of the case were such that the building was only situated on pillars, and was therefore only held in place by gravity. The House of Lords said in its judgement said the question must be decided based on not only the degree of annexation, but more importantly on the intention with which the building was put on pillars. Based on these two parameters, the House of Lords decided that the intention of putting building there was not as a temporary structure but the intent was to make it a permanent structure. Thus the building was held in place on the pillars by means of gravity and the intent behind it, deemed it a fixture.35 The present trend has been to give more stress on the purpose of annexation.36 However, the degree of annexation is equally important because lack of the same would be decisive in itself, and the purpose of annexation is unclear at times.37 Even in present times, there is enough uncertainty as to whether an object is a part of the land (fixture) or chattel, which suggests that there is still certain uncertainty regarding the present law on the matter. The doctrine of fixture and the tests to determine the same have been criticized on the grounds that they lack certainty and coherence. Although the law here is dominated primarily by the test laid down in Holland v. Hodgson, it is still pretty imprecise given that these questions ought to be decided on case to case basis. In practice, lawyers and their clients have to deal with this question almost every time while a property is sold, mortgaged, leased or developed and so on. JUDICIAL TRENDS OF INTERPRETATION IN INDIA

The discussion herein will involve going through some of the interpretations as to the principles and that have been set by the court in due course of the long history of India. The timeline of Indian judiciary can be broadly classified into the pre-independence era and the post- independence era, and the interpretations are related to fixtures, standing timber, growing crops, and so on. (i) Pre-Independence Era:-

In Re:Hormasji v. Unknown38, the court dealt with the questions as to whether grass is immovable property and whether the agreement in this case was a lease of a deed for sale. Justice Nanabhai opined that the instrument in question was not a lease since the owner never really parted with the property and the people in whose favour the deeds were executed did not cultivate or pay rent for the grass or the land. Thus it was indirectly affirmed that “grass was considered to be a movable property.” The case of Kalka Prasad v. Chandan Singh39 in the Allahabad High Court was presided by Justice Mahmood wherein he dealt with the question as to whether a hypothecation was meant for the land or for the crops growing on it. Having decided in favour of the latter, i.e., the crops, it was held that the hypothecation was for movable property. Reference must be made to the following excerpt to make the position clear:- “….what was intended to be hypothecated was not the field itself, but only the crops of that field…This being so, the hypothecation was of moveable property and not of immoveable property.”40 The Provincial and Presidential Courts of Bengal Acts of 1850 and 1865 clearly put huts within the ambit of chattel, however, in the case of Nathu Miah v. Nand Rani41, huts were held to be fixtures. Furthermore, in Thakur Chander Pramanick42 case, the shortcomings of the property law were expressed in such cases:- “we have not been able to find in the law or custom of this country any traces of the existence of an absolute rule of law that whatever is affixed or built on the soil becomes a part of it, and is subjected to the same rights of property as the soil itself.” (ii) Post-Independence Era

An important case which held attachments or objects imbedded into immovable property to be fixture is J. Kuppanna Chetty, Ambati v. Collector of Anantapur43, wherein a boiler engine that was fixed/ embedded into the factory building was held to be meant for beneficial enjoyment of the building and was thus held to be immovable property, i.e., fixtures. The case of State of Orissa v. Titaghur Paper Mills Co. Ltd.44 dealt with contracts of timber and of bamboo. Reference was made to Section 3of the TP Act, thereafter it was held that bamboo and timber fall under the category of movable property and if they are severed on account of sale or due to a contract of sale, then they are not only movable property but also goods. The case of Ananda Behera v. State of Orissa45 is also a leading judgement on this subject, wherein the Apex Court applied the definition of the General Clauses Act to the fishes in a lake and held them to be benefits arising out of the land (the lake in the instant case) and thus held to be immovable property within the meaning of the TP Act. The judgement in Velayudhan Padmanabhan v. K. Thyagarajan46 held that yields of fruit trees (mango and jack fruit in the instant case) were not to be considered as growing crops. SUGGESTIONS AND CONCLUSION

In context of the Indian law, the courts have been very efficient in adjudging each case on its merits and passing viable judgments abiding by the letter of law and merit of the situation. However, as we conclude from the findings of the paper, the terminology in property law has remained vague and ambiguous, wherein every situation needs to be adjudged on the basis of individual facts and circumstances, which not only creates a problem for the common masses who get involved in the matter and the lawyers but also increases the bulk of cases in courts. Unlike countries like Canada, England and Australia, the Indian judiciary has not classified specific doctrines which might be applied in cases to classify movable property from immovable property.47 Thus, although the legal system follows sound reasoning while pronouncing judgments, a sustainable method of approaching such classification must be adopted. In light of the aforementioned, the paper puts forth the following suggestions:-

(i) The TP Act is the primary legislation dealing with property matters. In light of the same, the Act must provide an all-round definition of immovable property, such that it in consensus and/or covers the different definitions provided in plethora of acts and statutes. (ii) The definition of movable property must be included in the TOPA to minimize uncertainty and have a clear understanding of the application. Doing the same would bring coherence in the statute and reduce the inconvenience of referring to several statutes and definitions in order to find answers to the factual matrix in case-to-case basis.

(iii) “Benefits arising out of land” the land is a vague term in the legislation. The term benefit has not been defined anywhere in the statute and neither has an exhaustive list of such said benefits have been provided in such a long course of having to deal with so many questions of facts and law on this matter. This vague terminology must be done away with. (iv) The legislation should, for better distinction between chattel and fixture, include the English doctrine of ‘Mode and Object of Annexation’, i.e, the Doctrine of fixture. It can be inferred most agreeable approach to these flaws are comprehensive legislations that are straightforward and factually accurate. Thus, it is a vital requirement that the government progressively legislates in order to overcome legal inconsistencies. This will not only guarantee an efficient form of government, but it would also provide the much required relief to the justice system, which is still overburdened.

1 Student, Symbiosis Law School, Hyderabad. 2 Raichand v. Dattatrya, AIR 1964 Bom 344.

3 The Transfer of Property Act, 1882, § 3. 4 Chris Davis, Property Law Guidebook- Second Edition, Oxford University Press (2015), http://lib.oup.com.au/he/Law/davies2e/davies2e_probq01.pdf. 5 Holland v. Hodgson, (1872) LR 7 CP 328. 6 Supra note 3. 7 Oxford Reference, available at https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100008307 (last visited April 26, 2020).

8 Jagdish v. Mangal Pandey, AIR 1986 All 182.

9 Baijnath v. Ramadhar and Anr., AIR 1963 All 214. 10 Shantabai v. State of Bombay, AIR 1958 SC 532. 11 The General Clauses Act, 1897, § 3(26). 12 The Registration Act, 1908, § 2(6). 13 Naveen Kumar Shelar, Transfer of Property Act 1882, https://www.academia.edu/6331085/The_transfer_of_property_act_1882.

14 Anand Behara v. State of Orissa, AIR 1956 SC 17. 15 Sukry Kurdepa v. Goondakull, (1872) 6 Mad 71.

16 Supra note 13. 17 Supra note 14. 18 Juan Chand Chugh v. Jugal Kishore Agarwal & Ors., AIR 1960 Cal 331. 19 Ismai Kani Rowthen v. Nazarali Sahib, ILR 27 Mad 211.

20 Official Liquidator v. Sri Krishna Deo & Ors, AIR 1959 All 247. 21 Ronald W. Polston, The Fixtures Doctrine: Was It Ever Really the Law, 16 WHITTIER L. REV. 455, 457 (1995) file:///C:/Users/oishi/Downloads/16WhittierLRev455.pdf. 22 Ibid. 23 Ibid. 24 Venakata Subbarao, Property Law, Indian Legal System (2005), http://14.139.60.114:8080/jspui/bitstream/123456789/738/21/Property%20Law.pdf. 25 Ibid.

26 Supra note 15. 27 Michael L. Lower, A Brief Explanation of the Law of Fixtures, SSRN 1, (2011) file:///C:/Users/oishi/Downloads/SSRN-id1807786.pdf. 28 Ibid. 29 Holland v. Hodgson, (1872) 7 CP 328.

30 Elitestone Ltd v. Morris, (1997) 1 W.LR. 687. 31 Supra note 25. 32 Supra note 27. 33 Supra note 31. 34 Supra note 30. 35 Ibid.

36 M. Haley, The Law of fixtures: An unprincipled metamorphosis?, Conveyancer and Property Lawyer 137, 140 (1998). 37 Ibid. 38 Re:Hormasji v. Unknown, I.L.R. (1889) 13 Bom 87. 39 Kalka Prasad v. Chandan Singh, I.L.R. (1888) 10 (All) 20.

40 Ibid. 41 Nathu Miah v. Nand Rani, (1872) 8 Beng. LR 508. 42 Thakur Chander Pramanick , AIR 1938 All 115. 43 J. Kuppanna Chetty, Ambati v. Collector of Anantapur, AIR 1965AP 457. 44 State of Orissa v. Titaghur Paper Mills Co. Ltd, AIR 1985 SC 1293. 45 Supra note 14.

46 Velayudhan Padmanabhan v. K. Thyagarajan, (2011) 3 KLJ 146. 47 Manvedra Singh Jadon, Comparing the Incomparable: A Critical Analysis of the Classification of Property in Movable or Immovable with Respect to the Indian context and resolving the Conundrum, 71 (NULJ 2017), https://www.scconline.com/Members/SearchResult.aspx.

3 Most Important Landmark Cases on Transfer of Property Act

Find Out How Landmark Cases Can Help You Win Your Property Dispute

Introduction

The Transfer of property act, 1882 states in its preamble that it aims to define and amend laws relating to the Transfer of property. It does so not by operation of law but rather by the ct of the parties.

Transfer of property act is a civil law and codifies substantive rights. The act is also not exhaustive in nature, meaning it does not cover the entire dimension of the Transfer of property. As such, it being a substantive law, there are a lot of relevant cases regarding the Transfer of property, so in the interest of time, we’ll take a look at the most important landmark cases on the Transfer of Property Act.

Landmark Cases on Transfer of Property Act:-

Rusher v. Rosher
Related to – Section 10, TPA
Doctrine – Rule Against Alienability
Section 10 of the Transfer of Property Act:

Condition Restraining Alienation – “ Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void ,

Facts of the case

In this case, a testator devised an estate for his son (or his heirs) subject to a condition that if he should desire to sell the estate, during the lifetime of the testator’s wife, she would be given an option to purchase the estate for £300 for the whole and at a proportionate price for any part thereof.
The value of the property at the date of the will was £15,000. Thus, she had an option to purchase the property at one-fifth of its value.
The will also provided that if the son or any of his heirs wanted to let the estate on rent, they could do so freely only for three years.
After the expiration of that period, the widow would have the option to occupy the premises, for the period in excess of three years, at a fixed nominal rent.
If the tenancy exceeded seven years, again, she was entitled to occupy the property for a fixed rent.
The son or his heirs were under an obligation, therefore, to offer the premises to the widow first, and only when she declined to take it could they let it out to other persons.

Court’s Observations:-

The court observed that the test to determine whether a restraint is absolute or only partial depends upon the effect and not on the form of words laying down the condition.
If the effect is absolute, it would be struck off as bad howsoever clear language may have been used.

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Cooper v Cooper
Related to – Section 35 of the TPA 1882
Section 35 – ( Explained ) Where an individual person professes to transfer the property which he has no right to transfer and as a neighborhood of an identical transaction, it confers any benefit on the owner of the property, and such an owner must elect either to verify such Transfer. Or to dissent from it, and within the latter case, he should relinquish benefit so conferred. Thus the benefit is renounced in a way that it reverts to the transferor or his representative as if it had not been disposed of.

Facts of Case

Vera and Harold Cooper were married in 1933. They had two children. Due to legal separation, there was a settlement: agreement, and through this agreement, Vera took the family home and automobile, and Harold took tools and shop equipment.
With the name, Harold four policies were there, and Vera was the beneficiary of all those policies. Subsequently, the decree of divorce was granted by the court.
Then Vera married one Alves, and Harold married Ida. After Harold’s remarriage, he changed the beneficiary of the three equitable policies from Vera to Ida. One of the policy, which was left signed by Vera but was not signed by Harold. Then subsequently, Harold died.
The main question before the court in this landmark case on the Transfer of property act was whether Vera and his children have a vested interest in the property?
Vera had no interest within the policies at the date of Harold’s death because Harold’s obligation for her support and under the terms of the divorce decree, terminated upon her remarriage which the interest of the youngsters within the estate of their father is restricted to the quantity necessary for his or her support measured by the provisions of the divorce decree before reaching their majority.

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Bellamy v. Sabine
Related to – Section 52, TPA
Doctrine discussed – It is one of the landmark cases on the Transfer of property act that gave birth to the Doctrine of Lis Pendens.

Doctrine Explained – The doctrine of lis pendens is expressed in the well-known maxim, ‘pendente lite nihil innovature,’ which means during the pendency of any suit regarding the title of a property, any new interest in respect of that property should not be created.

The effect of the applicability of the doctrine is that it does not annul the conveyance but only renders it subservient to the rights of the parties to the litigation. The transferee will be bound by the result of the suit or proceeding, whether or not he had notice of the suit or proceeding.

Facts of the case

There was a person named Mr. H who sold an immovable property to Mr. B.
Now Mr. H’s son, Mr. P, who was the heir of Mr. H, sued Mr. B to have the sale declared to be void.
However, while this litigation was pending, Mr. B sold the property to Mr. C, who did not take notice of the suit.
The Court held that the son Mr. H was entitled to the property, and the sale was set aside.
Mr. C, who purchased the property from Mr. B, does not get any title as he purchased the property from someone who did not have the title and therefore cannot convey it.

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Court’s observation

The doctrine of lis pendens has its origin in this case, wherein Turner, L.J., observed that “The doctrine of lis pendens was a doctrine common to the courts of law as well as equity since it would become almost impossible for the suit that is instituted in a court, to be adjudicated if alienations pendente lite were allowed to prevail. The plaintiff, in such a situation, would be liable to be defeated by the defendants causing the alienation before the judgment is passed, every time, and would be driven to institute a new course of proceedings, every time.”

It is highly evident as we read these Landmark Cases on Transfer of Property Act that it’s a multi-dimensional concept, and it varies according to unique situations that we are faced with in daily life.

It has gone through various amendment processes and is bound to evolve more, considering it is not exhaustive. Suffice to say, it has proved its resilience and effectiveness with changing times and will continue to do so.

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Transfer of Property Act Research Paper Topics

Transfer of Property Act research paper Topics – We are providing some research paper topics related to the Transfer of Property Act:

“Analyzing the Historical Evolution of the Transfer of Property Act in India”
“Impact of the 97th Amendment Act on Property Transactions in India”
“Legal Implications of the Doctrine of Part Performance in Property Transactions”
“A Comparative Study of Property Transfer Laws in India and Common Law Jurisdictions”
“Exploring the Role of Registration of Property in Ensuring Legal Validity”
“Challenges and Remedies in Disputed Property Transactions under the Transfer of Property Act”
“The Role of Easements in Property Transactions: A Legal Perspective”
“Property Rights of Women in India: A Critical Analysis of the Transfer of Property Act”
“Succession and Inheritance Laws under the Transfer of Property Act: A Socio-Legal Study”
“Real Estate Transactions and Tax Implications: A Study of Stamp Duty and Registration Charges”

These topics can provide a starting point for your research paper on the Transfer of Property Act, and you can narrow them down based on your specific area of interest within property law or real estate transactions.

12 more research paper topics related to the Transfer of Property Act:

11. “The Role of Trusts and Gifts in Property Transfers: A Comparative Analysis” 12. “Impact of Digitalization on Property Transactions and Registration under the Transfer of Property Act” 13. “Environmental Considerations in Property Transactions: Legal Aspects and Compliance” 14. “Adverse Possession and Its Implications in Property Law: A Case Study under the Transfer of Property Act” 15. “Mortgages and Liens: Examining Security Interests in Property Transactions” 16. “Co-Ownership of Property: Rights, Responsibilities, and Dispute Resolution” 17. “Legal Aspects of Leasehold and Freehold Property Transactions in India” 18. “Transferring Intellectual Property Rights: Challenges and Solutions under the Transfer of Property Act” 19. “Property Transactions in Special Economic Zones (SEZs): Regulatory Framework and Implications” 20. “Property Frauds and Legal Safeguards: A Study of Prevention and Remedies” 21. “Evolving Land Acquisition Laws in India: Impact on Property Ownership” 22. “Foreign Investment and Property Transactions: A Legal Analysis under the Transfer of Property Act” These topics cover various aspects of property law and can serve as the basis for in-depth research papers in this field. Choose the one that aligns best with your interests and objectives.

7 more research paper topics related to the Transfer of Property Act:

23. “Legal Implications of Property Partition among Co-owners: A Comprehensive Study” 24. “Property Transactions and the Rights of Minor Co-owners: A Legal Perspective” 25. “Unregistered vs. Registered Property Transactions: A Comparative Analysis” 26. “Property Transactions in the Digital Age: Blockchain Technology and Smart Contracts” 27. “Corporate Real Estate Transactions: Compliance with the Transfer of Property Act” 28. “Eminent Domain and Property Expropriation: Examining Government Powers and Compensation” 29. “Land Reforms and Property Redistribution: A Study of Social Justice Underlying the Act” These topics delve into various aspects of property law and can provide a solid foundation for your research paper. Choose one that resonates with your interests and research goals.

A brief on Transfer of Property Act, 1882

This article is written by Darshit Vora , from Narsee Monjee Institute of Management Studies. The article covers various important elements mentioned in the Transfer of Property Act, 1882.

Table of Contents

Introduction

A transfer refers to a conversion of a thing from one person to another person. Property may be defined as anything physical or a virtual entity owned by an individual or a group of people. A property can be transferred from one person to another person by transferring rights, or interest, or ownership, or possession the party can satisfy either or all the ingredients.

The transfer of property can be made in the two following ways:

First: act of the parties;

Second: by law.

Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882 . It refers to an act done by a living person conveying property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individuals whether incorporated or not.

Illustration

A is the grandson of G and A owns three estates of which he wanted to transfer one estate to his grandpa D but he died two years ago the transfer won’t be held valid because the transfer of property should happen between two living persons.

Background of the Transfer of Property Act, 1882

Before the advent of the British Raj system in India, Hindus , and Muslims were governed by their personal laws for the transfer of property. When Britishers were actively involved in the Indian Legal system they established informal Courts in which clear and concrete law was absent as compared to the law that was prevailing in England. Various High Court expressed the need for creating specific acts related to the transfer of property. As the principle of a good conscience, equity, and justice was confusing and created various uncertainties, the privy council noted the uncertainties and also told the authorities to take immediate action.

So, the first commission was appointed by the British Queen Elizabeth II to remove uncertainties. On matters related to the transfer of property. The draft was sent in India after certain amendments were introduced in the legislative Council in 1877. It was then sent to the selection committee but it was reversed due to the public criticism. The Bill was redrafted by the Second law commission. Some of the provisions were borrowed from English law on real property, the Law of Conveyancing and Property Act, 1881 . Mostly the law was shaped in such a manner that suits the Indian population and can be easily understood by a non-professional judge.

Despite various amendments made by the Second Commission, there was an expansion of the law. Therefore a special committee was appointed to make the amendments in the prevailing act. So various amendments were made in the act to expand its scope and correct the existing errors.

Important concepts highlighted in the Act

Immovable property: According to the General Clauses Act, 1897 immovable property includes land, benefits arising out of the land, things that are attached to the land. Under transfer of property, the immovable property can be defined as all property are immovable property other than standing timber, growing crops, or grass.

Narayana Sa vs. Balaguruswami (1923)

In this case, large artillery was fixed for blowing liquor. The Court held that it would be considered as movable property if it was fixed in the land, not with an intention for beneficial enjoyment.

Mortgage debt: After the amendment of 1900 mortgage debt was excluded from actionable claims. In Peruma animal vs. Peruma Naicker , Wallis C.J.held that before 1900 mortgage debts could be transferred as actionable claims, it was excluded from the actionable claims, the legislature intended that the mortgage debt must be transferred in mortgagee’s interest through a registered instrument.
Instrument: According to the transfer of property Act, 1882 instrument refers to a non-testamentary instrument. It acts as evidence of the transfer of property between living parties. According to the legal dictionary , an instrument refers to a formal legal document.
Attested: It refers to a formal document signed by a witness. The transferors of the property are known as the executant. The amendment act was introduced in 1926 which mentioned that there must be two or more witnesses who must sign the document in presence of the executant not necessarily at the same time but they shouldn’t be the party to the transfer.
Registered: According to the transfer of property Act, 1882 registered refers to any property registered where the act is operative. One must comply with various procedures of registration.
The description of the property should be mentioned.
Avoid fraud.
Deeds should be presented by a competent person.
The property must be registered in the same territory where the registered office is situated.
Actionable claims: A claim to any debt, other than the debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in a movable property or to any beneficial interest in movable property not in the possession, either actual, or constructive possession of the claimant which the civil courts recognize as affording grounded of relief, whether such debt or beneficial interest be existent, accusing, conditional or contingent.

Illustration: A has given his house to B for rent but B hasn’t paid the rent because this would amount to an actionable claim.

Notice: Notice refers to knowledge of the fact. The person has knowledge of facts about various circumstances. According to the Transfer of Property Act, 1882 it prescribed two kinds of notices

Actual or implied notice: The person having actual knowledge about a particular fact.

Constructive notice: The knowledge of the fact is obtained through circumstances.

Essential elements of the Transfer of Property Act, 1882

To be a living or juristic person: For a transfer of property, there must be a transfer between living or a juristic person. In Shiromanigurudwara Prabhakar committee, Amritsar v. Sri Somnath Dass (2000) the court defines a juristic person which can be an individual firm, corporate, company society, association, but not a partnership. Anyone who can sue or can be sued would satisfy this requirement.
Transfer through Conveyance: Conveyance of property can be either done in the present or in the future. It is necessary to ensure nothing is transferred before the title.
The Property must be transferable: According to Section 6 of transfer of property Act, 1882 there are properties which cannot be transferred:
The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature cannot be transferred.
The mere right to re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner.
The easement right cannot be transferred.
The interest of the property restricted in its enjoyment to the owner cannot be transferred.
Political pensions, public office, the salary of the public officer cannot be transferred.
The right to sue cannot be transferred.
Stipends to military, navy or the airforce, political pensioners, and civil pensioners cannot be transferred.
No transfer cannot be made as opposed to the natural interest or if the object or the consideration is unlawful then the transfer cannot be held valid.
The right to future maintenance cannot be transferred.
Tenants having an untransferable right to occupancy, the farmer of an estate in respect of which default has been made in paying revenue or lessee of an estate under the management of the court of wards, to assign his interest as the tenant, farmer, or lessee.
Transfer of property must be done by a competent person: For a valid transfer, it is necessary that the property transferred should be of a sound mind, should not be intoxicated, must be a major or he is not a person disqualified by law cannot enter into a contract of transfer of property with another person.
The transfer should be made in a prescribed form: The transfer of property need not be in be made in writing however certain property to transfer then it must be in writing:
Sale of movable property value more than a hundred rupees.
Sale of intangible must be in a written format.
All mortgages which are more than a hundred rupees should be transferred in a written form.
The transfer of actionable claims must be in a written form.
A gift in a form of immovable property.
Lease of immovable property exceeding more than one year.

The rule against perpetually: It is necessary that the property must be transferred during the lifetime of an individual perpetuity rule should not be followed during the time of transfer of property.
Property cannot be transferred to an unborn child: A property cannot be transferred to an unborn child necessary to consider that while transferring the interest of the property person should be above the age of 18 years.
Conditional transfer of property: Under Section 25 of the transfer of property Act, 1882, the property can be transferred complying to the condition mentioned. If the condition becomes impossible, forbidden by law, opposed to public policy, or is immoral the transfer would be held void.

Illustration: A is interested in purchasing B’s property but B sets a condition that A in order to purchase B’s property has to kill C here the transfer is through unlawful act, therefore, the transfer would be held void.

Kinds of transfer under the Transfer of Property Act, 1882

Sale of immovable property: There is a transfer of ownership from the buyer to the seller in exchange for the price. Delivery of tangible property from the seller to the buyer.
Mortgage of immovable property: The property gets transferred from the buyer to the seller in the form of a mortgage where the immovable property is mortgaged to secure a loan. The mortgagor has to pay the principal loan along with the interest to release the immovable property from the mortgage.
Leases of immovable property: The possession of the property is being transferred from one person to another person for a fixed price in this scenario there is no transfer of ownership.
Exchange of immovable property: When two persons mutually decide to transfer immovable property it would be referred to as an exchange of property.
Gift of immovable property: According to the transfer of property Act, 1882, gift refers to a transfer of movable or immovable property violently or without the consideration, by one person that is donee, to donor transfer is accepted by and on behalf of the donee.

Features of Transfer of Property Act, 1882

The preamble of the transfer of property Act lays down that it is related to the transfer of property by the act of the properties.
The transfer of property act, 1882 provides a uniform and a clear law concerning the transfer of movable property from one living person to another living person by the act of parties.
The Transfer of Property Act, 1882 is an extension of the Indian Contract Act,1872 because the contract act was recognized as an inexhaustive code.
The transfer of property law is not a copy of the English transfer of property laws that was enacted based on socio-economic conditions of the country.
The transfer of property Act, 1882 cannot be considered as totally exhaustive; it covers the transfer of immovable property from the act of parties.
Transfer of property is subject to the concurrent list that provides power to both the state legislature and the parliament to pass laws related to the matter of transfer of property.
The act covers five types of transfer of immovable property they are as follows: a) Mortgage b) gift c) sale d) actionable claims e) lease.
The transfer of property Act, 1882 is a law that applies lex-loci to all people living in that jurisdiction, not like personal laws that differ from person to person.
The transfer of property Act, 1882 is governed by various principles like justice, equity, and good conscience.
Initially, at the time of implementation, the act didn’t apply to the State of Bombay, Punjab, and Delhi as because they had their own acts related to property matters. Currently, the transfer of property act doesn’t apply in Punjab; it complies with the rule of good conscience, equity, and justice.
Transfer of property Act, 1882 highlights the provision of inter-vivos parallel to the existing laws relating to the testamentary and interstate transfer.
The transfer of property act, 1882 is a general law and therefore it cannot prevail over the special laws passed by the parliament.
Under the Transfer of Property Act, 1882 it mentions that absolute conditional restraint is void and partial conditional restraint on the transfer of property is valid.

Conclusion

The Act was introduced with an intention to create a comprehensive Act which provides information about the transfer in a very simple language during the time of introduction it was not complete and had various uncertainties. It has gone through various amendment processes and the act has proved it time and again about its effectiveness. In India, many more such acts like transfer of property Act, 1882 are still in need to be implemented.

References

[1] https://blog.ipleaders.in/transfer-property-act/

[2] https://www.lawctopus.com/academike/transferability-immovable-property/

[3] https://shodhganga.inflibnet.ac.in/bitstream/10603/31643/13/13_chapter%205.pdf

[4] https://fklinknotes.wordpress.com/2019/01/17/objects-characteristics-features-of-transfer-of-property-act-1882/

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Transfer of Property Act Case Laws | Judicial Services

Written by admin

Updated on: April 11, 2024

Table of Contents

Transfer of Property Act Case Laws | Judicial Services | Law Exam

1. duncans industries ltd. v. state of u.p (2000) 1 scc 633.

Whether the machinery embedded in the earth can be treated as moveable or immoveable property depends upon the intention of the parties which embedded the machinery.

2. Sant Lai v. Kamla Prasad (1952) SCR 116

Each witness must sign only after the execution is complete otherwise it will not be a valid attestation.

3. Dr. HK Sharma v. Shri Ram Lai (2019) Supreme Court (SC) 83

The Supreme Court observed that the landlord-tenant relationship will not be terminated merely by an agreement to sell the property of the landlord unless there is a stipulation in the agreement itself to that effect.

Also Read: Amendment of Pleadings | Order 6 Rule 17 CPC

4. Rosher v. Rosher (1884) 26 Ch D. 801

The test to determine whether the restraint is absolute or partial depends upon the effect and not the form or words laying down the condition.

5. Muhammad Raza v. Abbad Bandi Bibi, AIR 1932 P.C. 158

Where the condition restricts the transferee from transferring the property to strangers, i.e outside the family of the transferor, the condition is merely a partial restraint which is valid and enforceable.

6. Shanta Bai v. State of Bombay, AIR 1958 SC 532

Standing timber is different from a timber tree. Standing timber refers to tree in such a state that if cut could be used as timber, while timber tree refers to tree drawing sustenance from the soil.

7. Pandit Chunchun Jha v. Sheikh Ibadat Ali, AIR 1954 SC 345

Supreme Court held that if the condition of re-purchase is no embodied in the document of mortgage then the transaction can’t be said to be mortgage.

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Transfer of Property Act: Notes, Case Laws and Reading Materials
This article provides Transfer of Property Act notes with case laws. The Act provides provisions for transfer of movable or immovable property. As a learner, you can consider it as a free, online, and self-placed course. As a competitive exams aspirant, you will find it perfect for Judicial Service Exams, UPSC CSE Law Optional, etc.
Property Law
Legal Bites' study material on the property laws of India is divided into six modules and an additional section containing related articles.The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically. Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of ...
The Doctrine Of Part Performance: Part Performance Under Transfer Of
The act of transferring property from one person to another, whether in present or in the future, is known as a transfer of property under the Transfer of Property Act. By transferring property, the transferor transfers all rights in the property, according to Section 8 of the Transfer of Property Act 1882 (The Act). There are several ways to ...
Transfer of Property Act Notes And Study Material [PDF Download]
Overview: The Transfer of Property Act is part of the syllabus for roughly all states' Prelims and Mains Judiciary Examination 2024. As a judiciary aspirant in 2024 or a student in your Law School, you should study the Transfer of Property Act in depth. Refer to this article to understand all the essential topics of the Transfer of Property Act for Judiciary Preparation.
Section 53A of Transfer of Property Act, 1882 : an analysis
Section 53 of the Transfer of Property Act, 1882. In general, the motive of an act is taken into consideration in the eyes of the law while evaluating civil liability. The rule is the opposite when criminal law is applied because mens rea is an essential element to constitute a crime.
Transfer of Property Act
The Transfer of Property Act, 1882 came into force on 1st July 1882. The Preamble of the Act lays down that it is an Act to define and amend the law r. Follow Us. ... Important study material and case laws on the Transfer of Property Act - Click on the topics to Read . Module 1 - Introduction. General Introduction of the Act;
THE TRANSFER OF PROPERTY ACT (1994). By R.K. Sinha. Central Law
Transfer of Property Act (2nd ed. 1973); G. P. Tripathi, The Transfer of Property Act (3rd ed. 1982), and books cited in supra notes 2 and 4. 6. R.K. Sinha, The Transfer of Property Act (1994). ... a nature that one wonders as how to get the correct reference of case.25 These mistakes could have been avoided by the author and the publisher by ...
Case Study 5
Section 43 of Transfer of Property Act, 1882 provides that. Transfer by unauthorized person who subsequently acquires interest in property transferred. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall ...
Transfer Of Property Act (One Shot)
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Understanding Lease under Transfer of Property Act, 1882
This article on 'Understanding 'Lease' under Transfer of Property Act,1882' has been written by Nishant Vimal, a 3rd-year student from Symbiosis Law School Hyderabad. The author discusses the concept of Lease under the Transfer of Property Act, 1882. ... In the case of Punjab National Bank v. Ganga Narain Kapur (1.), Court held that if ...
PDF Chapter I
4 CHAPTER III: ANALOGOUS LAWS In this chapter, the researcher intends to discuss different laws apart from the law in question i.e. the Transfer of Property Act, 1882 and make a brief comparison with the same. CHAPTER IV: CONCLUSION & SUGGESTIONS In the present chapter, the researcher concludes the paper and provides a brief
Transfer of Property Act, 1882
This Act governs the transfer of property/assets (movable or immovable) between living people, & it took effect on July 1, 1882. The Transfer of Property Act is a contract law extension that is comparable to succession laws and is one of the oldest laws in the Indian court system. Those intending to transfer their immovable property should be ...
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Section 44 of the Transfer of Property Act, 1882 and also Section 4(1) of the Partition Act, 1893 appear ...is based on the principles embodied in Section 44 of the Transfer of Property Act. The contrary view will cause gross injustice to the single male heir and the object of the ...interpretation should be consistent with justice, equity and ...
PDF THE TRANSFER OF PROPERTY ACT, 1882 ARRANGEMENT OF SECTIONS
relating to the transfer of property by act of parties; It is hereby enacted as follows:— CHAPTER I PRELIMINARY 1. Short title.—This Act may be called the Transfer of Property Act, 1882. Commencement.—It shall come into force on the first day of July, 1882. Extent.—1 [It extends 2 in the first instance to the whole of India.
SECTION 3 OF TRANSFER OF PROPERTY ACT, 1882 & DOCTRINE OF FIXTURES by
Necessary case laws have been provided to study judicial trends in India with respect to fixtures and to support facts and findings. Keywords:- Transfer of Property Act, interpretation clause, immovable property, attached to earth, fixtures. INTRODUCTION. Section 3 of the TP Act is the "Interpretation Clause" of the Act.
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The Transfer of property act, 1882 states in its preamble that it aims to define and amend laws relating to the Transfer of property. It does so not by operation of law but rather by the ct of the parties. Transfer of property act is a civil law and codifies substantive rights. The act is also not exhaustive in nature, meaning it does not cover ...
Comparing Section 6(A) and 43 of the Transfer of Property Act in light
Under The Transfer of Property Act 1882 in this case, Sec 6(a) favors no transfer while Sec 43 favors transfer if promised earlier. It happened that the grandsons transferred the property to a transferee (T) and misrepresented the fact that they held the ownership. To this W2 filed a case against the grandsons as she was still alive.
Transfer of Property Act Research Paper Topics
12 more research paper topics related to the Transfer of Property Act: 11. "The Role of Trusts and Gifts in Property Transfers: A Comparative Analysis". 12. "Impact of Digitalization on Property Transactions and Registration under the Transfer of Property Act". 13.
PDF KLE LAW ACADEMY BELAGAVI
The act deals with transfer of property between two living persons. The majority of the act deals with transfers relating to immovable property. This act does not apply to transfer of property governed by personal law, for ex, Mohammedan Law. Section 3 defines Immovable Property We know that property is the total wealth of a person. It may include
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As to the lessee's death, a lease, being a transfer of an interest in immovable property, is a heritable right,3-4 except where the lease provides to the contrary expressly or by implication. A contractual tenancy is subject to devolution on succession. 1. AIR 1957 Cal 173 (176).
A brief on Transfer of Property Act, 1882
Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It refers to an act done by a living person conveying property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individuals whether incorporated or not.
Transfer of Property Act Case Laws
Where the condition restricts the transferee from transferring the property to strangers, i.e outside the family of the transferor, the condition is merely a partial restraint which is valid and enforceable. 6. Shanta Bai v. State of Bombay, AIR 1958 SC 532. Standing timber is different from a timber tree.
Fifth Circuit: Preference Claims Are Property of the Bankruptcy Estate
A debtor's non-exempt assets (and even the debtor's entire business) are commonly sold during the course of a bankruptcy case by the trustee or a chapter 11 debtor-in-possession ("DIP") as a means of augmenting the bankruptcy estate for the benefit of stakeholders or to fund distributions under, or implement, a chapter 11, 12, or 13 plan.

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The Doctrine Of Part Performance: Part Performance Under Transfer Of Property Act

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4) Readiness Or Willingness Of Transferee

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Module 2 - Kinds of Property

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Case Study 5 - Transfer of Property Act 1882

Section 43 of Transfer of Property Act, 1882 provides that

We conclude as follow

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