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THE TRANSFER OF PROPERTY ACT, 1882
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A R R A N G E M E N T O F S E C T IO N S
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PREAMBLE
CHAPTER I
PRELIMINARY
SECTIONS
- Short title. Commencement. Extent.
- Repeal of Acts. Saving of certain enactments, incidents, rights, liabilities, etc.
- Interpretation-clause.
- Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act. CHAPTER II OF TRANSFERS OF PROPERTY BY ACT OF PARTIES ( A ) Transfer of Property, whether moveable or immoveable
- “Transfer of property” defined.
- What may be transferred.
- Persons competent to transfer.
- Operation of transfer.
- Oral transfer.
- Condition restraining alienation.
- Restriction repugnant to interest cleated.
- Condition making interest determinable on insolvency or attempted alienation.
- Transfer for benefit of unborn person.
- Rule against perpetuity.
- T ransfer to class some of who m co me unde r sections 13 and 14.
- Transfer to take effect on failure of prior interes t.
- Direction for accumulation.
- Transfer in perpetuity for benefit of public.
- Vested interest.
- When unborn person acquires vested interest on transfer for his benefit.
- Contingent interest.
SECTIONS
- Transfer to members of a class who attain a particular age.
- Transfer contingent on happening of specified uncertain event.
- Transfer to such of certain persons as survive at some period not specified.
- Conditional transfer.
- Fulfilment of condition precedent.
- Conditional transfer to one person coupled with transfer to another on failure of prior disposition.
- Ulterior transfer conditional on happening or not happening of specified event.
- Fulfilment of condition subsequent.
- Prior disposition not affected by inva lidity of ulterior disposition.
- Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.
- Such condition must not be invalid.
- Transfer conditional on performance of act, no time being specified for per formance.
- Transfer conditional on performance of act, time being specified. Election
- Election when necessary. Apportionment
- Apportionment of periodical payments on determination of interest of person entitled.
- Apportionment of benefit of obligation on severance. (B) Transfer of Immoveable Property
- Transfer by person authori sed only under certain circumstances to transfer.
- Transfer where third person is entitled to maintenance.
- Burden of obligation imposing restriction on use of land or of obligation annexed to ownership but not amounting to interest or easement.
- Transfer by ostensible owner.
- Transfer by person having authority to revoke former transfer.
- Transfer by unauthorised person who subsequently acquires interest in property transferred.
- Transfer by one co-owner.
- Joint transfer for consideration.
- Transfer for consideration by persons having distinct interests.
- Transfer by co-owners of share in common property.
- Priority of rights created by transfer.
- Transferee's right under policy.
- Rent bona fide paid to holder under defective title.
SECTIONS
63A. Improvements to mortgaged property.
- Renewal of mortgaged lease.
- Implied contracts by mortgagor. 65A. Mortgagor’s power to lease.
- Waste by mortgagor in possession. Rights and liabilities of Mortgagee
- Right to foreclosure or sale. 67A. Mortgagee when bound to bring one suit on several mortgages.
- Right to sue for mortgage-money.
- Power of sale when valid. 69A. Appointment of receiver.
- Accession to mortgaged property.
- Renewal of mortgaged lease.
- Rights of mortgagee in possession.
- Right to proceeds of revenue sale or compensation on acquisition.
- [ Repealed .].
- [ Repealed .].
- Liabilities of mortgagee in possession. Loss occasioned by his default.
- Receipts in lieu of interests. Priority
- Postponement of prior mortgagee.
- Mortgage to secure uncertain amount when maximum is expressed.
- [ Repealed. ]. Marshalling and Contribution
- Marshalling securities.
- Contribution to mortgage-debt. Deposit in Court
- Power to deposit in Court money due on mortgage. Right to money deposited by mortgagor.
- Cessation of interest. Suits for Foreclosure, Sale or Redemption
- [ Repealed. ]. Foreclosure and Sale
- [ Repealed .].
- [ Repealed .].
- [ Repealed .].
SECTIONS
- [ Repealed .].
- [ Repealed .]. Redemption
- Persons who may sue for redemption.
- Subrogation.
- Prohibition of tacking.
- Rights of mesne mortgagee.
- Right of redeeming co-mortgagor to expenses.
- Mortgage by deposit of title-deeds.
- [ Repealed .]. Anomalous Mortgages
- Rights and liabilities of parties to anomalous mortgages.
- [ Repealed .]. Charges
- Charges.
- No merger in case of subsequent encumbrance. Notice and Tender
- Service or tender on or to agent.
- Notice, etc., to or by person incompetent to contract.
- Power to make rules. CHAPTER V OF LEASES OF IMMOVEABLE PROPERTY
- Lease defined. Lessor, lessee, premium and rent defined.
- Duration of certain leases in absence of written contract or local usage.
- Leases how made.
- Rights and liabilities of lessor and lessee. A.—Rights and liabilities of the lessor. B.—Rights and liabilities of the lessee.
- Rights of lessor’s transferee.
- Exclusion of day on which term commences. Duration of lease for a year. Option to determine lease.
- Determination of lease.
- Waiver of forfeiture.
- Waiver of notice to quit.
- Relief against forfeiture for non-payment of rent.
THE TRANSFER OF PROPERTY ACT, 1882
ACT NO. 4 OF 1882
[17 th February, 1882.]
An Act to amend the law relating to the Transfer of Property by act of Parties.
Preamble .—WHEREAS it is expedient to define and amend certain parts of the law 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. except 3 [the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of], Bombay, Punjab and Delhi.] (^4) [But this Act or any part thereof may by 5 notification in the Official Gazette be extended to the whole or any part of 6 [the said territories] by the State Government concerned.] (^7) [And any State Government may 8 *** from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:— Sections 54, paragraphs 2 and 3, 59, 107 and 123.]
- Subs. by the A.O. 1950, for the third paragraph.
- The application of this Act was barred in the Naga Hills District, including the Mokokchung Sub - division, the Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasi and Jantia Hills and the Mikir hills Tract, by notification under s. 2 of the Assa m Frontier Tracts Regulation, 1880 (Reg. 2 of 1880). Partially extended to Berar by Act 4 of 1941. Extended to Manipur by Act 68 of 1956; to Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. I; to Goa, Daman and Diu by Reg. 11 of 1963, s. 3 and Sch.; to Lakshadweep by Reg. 8 of 1965, s. 3 and Sch., to Pondicherry by Act 26 of 1 968 , s. 3 and Sch. It has been amended to Bombay by Bombay Act 14 of 1939, 5 7 of 1959, in U.P. by U.P. Act 24 of 1954, 14 of 1970 and 57 of 1976. Extended to the Union territory of Jammu and Kashmir and Union territory of Ladakh by Act 34 of 2019, s. 95 and Fifth Schedule (w.e.f. 31- 10 - 2019).
- Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part B States”.
- Subs. by the A.O. 1937, for the original paragraph.
- The Act has been extended to— The Presidency of Bombay (except Scheduled Districts) w.e.f. 1 - 1 - 1893; to Mehwassi Estate by Born. Reg. 1 of 1949; and to former princely area w.e.f. 1 - 4 - 1951; now applicable to whole of Maharashtra; Gujar at (Saurashtra are a) by S aurashtra Ordinance 25 of 1949, and to Kutch area w.e. f. 1 - 1 - 1950. Madhya Pradesh: Mysore, w.e.f. 1- 4 - 1951; Rajasthan, w.e.f. 1- 7 - 1952; the former State of Travancore-Cochin, w.e.f. 1- 5 - 1952, now applicable to whole of Kerala. The provisions o( sections 54, 107 and 123 were extended to— Delhi, w.e.f. 30- 5 - 1939. Section 129 was extended to certain areas of Delhi w.e.f. 16 - 11 - 1940 and to the remaining areas w.e.f. 1- 12 - 1962. the remaining provisions were also extended to the Union territory of Delhi w.e.f. 1- 12 - 1962; Himachal Pradesh, w.e.f. 7- 12 - 1970: Punjab, w.e.f. 1- 4 - 1955 and to former princely area w.e.f. 15- 5 - 1957. (Section 59 was enforced in Haryana area, w.e.f. 5- 8 - 1967). The Act has been declared in force in the Pargana of Manpur by the Manpur Law Regulation, 1926 ( Reg. 2 of 19 26), in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (Reg. 1 of 1929), and in the State of Sikkim on 1.9.1984 vide Notification No. S.O. 643(E), dated 24 - 8 - 1984, Gazette of India, Extraordinary, Pt. II, sec. 3(. The Act has been repealed as to Government Grants by the Government Grants Act, 1895 (15 of 1895). The Act has been repealed or modified to the extent necessary to give effect to the provisions of Madras Act 3 of 1922, in the City of Madras see s. 13 of Madras Act 3 of 1922.
- Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “said States”.
- Subs. by Act 3 of 1885, s. 1, for the original paragraph.
- The words “with the previous sanction of the Governor General in Council” omitted by Act 38 of 1920, s. 2 and the Schedule.
(^1) [Notwithstanding anything in the foregoing part of this section, sections 54, paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 2 [1908 (16 of 1908)], under the power conferred by the first section of that Act or otherwise.]
2. Repeal of Acts. Saving of certain enactments, incidents, rights, liabilities, etc.— In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect— ( a ) the provisions of any enactment not hereby expressly repealed: ( b ) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force: ( c ) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability: or ( d ) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction: and nothing in the second chapter of this Act shall be deemed to affect any rule of 3 *** Muhammadan (^4) *** law. 3. Interpretation-clause .—In this Act, unless there is something repugnant in the subject or context,— “immoveable property” does not include standing timber, growing crops or grass: “instrument”, means a non-testamentary instrument: (^5) [“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary:] “registered” means registered in 6 [^7 [any part of the territories] to which this Act extends] under the law^8 for the time being in force regulating the registration of documents: “attached to the earth” means— ( 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: (^9) [“actionable claim” means a claim to any debt, other than a debt secured by mortgage of
- Added by Act 3 of 1885, s. 2 (w.e.f. 1- 7 - 1882).
- Subs. by Act 20 of 1929, s. 2, for “1877”.
- The word “Hindu” omitted by s. 3, ibid.
- The words “or Buddhist” omitted by s. 3 , ibid.
- Ins. by Act 27 of 1926, s. 2, as amended by Act 10 of 1927, s. 2 and Sch. I.
- Subs. by Act 3 of 1951, s. 3 and the Schedule, for “a Part A State or a Part C State” (w.e.f. 1 - 4 - 1951).
- Subs. by the Adaptation of Laws (No. 2) Order 1956, for “any State”.
- See the Indian Registration Act, 1908 (16 of 1908).
- Ins. by Act 2 of 1900, s. 2.
CHAPTER II^1
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
( A ) T ra n sf e r of P ro p er t y , w he t he r m o ve a b le o r i m m ov e a bl e 5****. “Transfer of property” defined .—In the following sections “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, 2 [or to himself] and one or more other living persons; and “to transfer property” is to perform such act. (^3) [In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]
6. What may be transferred .—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force. ( a ) 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. ( b ) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby. ( c ) An easement cannot be transferred apart from the dominant heritage. ( d ) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. (^4) [( dd ) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.] ( e ) A mere right to sue 5 ***cannot be transferred. ( f ) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable. ( g ) Stipends allowed to military 6 [,naval], 7 [air-force] and civil pensioners of 8 [Government] and political pensions cannot be transferred. ( h ) No transfer can be made ( 1 ) in so far as it is opposed to the nature of the interest affected thereby, or ( 2 ) 9 [for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or ( 3 ) to a person legally disqualified to be transferee]. (^10) [( i ) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.] 7. Persons competent to transfer.— Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
- Nothing in Chapter II is to be deemed to affect any rule of Muhammadan Law— see s. 2, supra
- Ins. by Act 20 of 1929, s. 6.
- Added by s. 6, ibid.
- Ins. by s. 7, ibid.
- The words “for compensation for a fraud or for harm illegally caused” omitted by Act 2 of 1900, s. 3.
- Ins. by Act 35 of 1934, s. 2 and the Schedule.
- Ins. by Act 10 of 1927, s. 2 and the First Schedule.
- The word “Government” successively adapted by the A.O. 1937 and A.O. 1950 to re ad as above.
- Subs. by Act 2 of 1900, s. 3, for “for an illegal purpose”.
- Added by Act 3 of 1885, s. 4.
8. Operation of transfer.— Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims n ot transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. 9. Oral transfer.— A transfer of property may be made without writing in every case in which a writing is not expressly required by law. 10. Condition restraining alienation .—Where property is transferred subject to a condition or limitation absolutely restraining the transfer ee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. 11. Restriction repugnant to interest created.— Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. (^1) [Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.] 12. Condition making interest determinable on insolvency or attempted alienation.— Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such cond ition or limitation is void. Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him. 13. Transfer for benefit of unborn person. — Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.
- Subs. by Act 20 of 1929, s. 8, for the second paragraph.
directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
20. When unborn person acquires vested interest on transfer for his benefit .—Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appear from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his bi rth. 21. Contingent interest.— Where , on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible. Exception.— Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent. 22. Transfer to members of a class who attain a particular age.— Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age. 23. Transfer contingent on happening of specified uncertain event.— Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist. 24. Transfer to such of certain persons as survive at some period not specified .—Where , on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer. Illustration A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the life of B. D survives B. At B's death the property passes to D. 25. Conditional transfer.— An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Illustrations ( a ) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void. ( b ) A gives Rs. 500 to B on condition that he shall marry A's daughter C. At the date of the transfer C was dead. The transfer is void. ( c ) A transfers Rs. 500 to B or condition that she shall murder C. The transfer is void. ( d ) A transfers Rs. 500 to his niece C if she will desert her husband. The transfer is void. 26. Fulfilment of condition precedent.— Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with. Illustrations ( a ) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D, and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition. ( b ) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.
27. Conditional transfer to one person coupled with transfer to another on failure of prior
disposition. —Where, on a transfer of property, an interest therein is created in favour of one person, and
by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor. But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner. Illustrations ( a ) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A's life-time. The disposition in favour of C takes effect. ( b ) A transfers property to his wife; but, in case she should die in his life-time, transfers to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.
28. Ulterior transfer conditional on happening or not happening of specified event.— On a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27. 29. Fulfilment of condition subsequent.— An ulterior disposition of the kind contemplated by the last preceding section cannot take effect unless the condition is strictly fulfilled. Illustration A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies a minor or marries without C's consent, the Rs. 500 shall go to D. B marries when only 17 years of age, without C's consent. The transfer to D takes effect. 30. Prior disposition not affected by invalidity of ulterior disposition.— If the ulterior disposition is not valid, the prior disposition is not affected by it. Illustration A transfers a farm to B for her life, and, if she do not desert her husband to C. B is entitled to the farm during her life as if no condition had been inserted. 31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.— Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. Illustrations ( a ) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm. ( b ) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases. 32. Such condition must not be invalid.— In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest. 33. Transfer conditional on performance of act, no time being specified for performance.— Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act. 34. Transfer conditional on performance of act, time being specified.— Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of
If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer. In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority. Appointment 36. Apportionment of periodical payments determination of interest of person entitled.— In the absence of a contract or local usage to the contrary, all rents annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof. 37. Apportionment of benefit of obligation on severance.— When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose: Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance. Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs. Illustrations ( a ) A sells to B, C and D a house situated in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7½ to C, and Rs. 7½ to D, and must deliver the sheep according to the Joint direction of B, C and D. ( b ) In the same case, each house in the village being bound to provide ten days' labour each year on a dyke to prevent inundation, E had agreed as a term of his lease to perform this work for A. B, C and D severally require E to perform the ten days' work due on account of the house of each. E is not bound to do more than ten days' work in all, according to such directions as B, C and D may join in giving. (B) Transfer of Immovable property 38. Transfer by person authorised only under certain circumstances to transfer.— Where any person, authorised only under circumstances in their nature variable to dispose of immoveable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith. Illustration A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable, to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A's maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed. 39. Transfer where third person is entitled to maintenance.— Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred 1 *** the right may be enforced against the transferee, if he has notice 2 [thereof] or if the
- The words “with the intention of defeating such right” omitted by Act 20 of 1929, s. 11.
- Subs. by s. 11, ibid ., for “of such intention”.
transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands. (^1) * * * * * 40. Burden of obligation imposing restriction on use of land.— Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment^2 [in a particular manner of the latter property], or or of obligation annexed to ownership but not amounting to interest or easement. — where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands. Illustration A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A. 41. Transfer by ostensible owner.— Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be violable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. 42. Transfer by person having authority to revoke former transfer.— Where a person transfers any immoveable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power. Illustration A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B's lease subject to the opinion of the surveyor as to B's use of the house having been detrimental to its value. 43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— Where a person 3 [fraudulently or] erroneously represents that he is authorised to transfer certain immovable 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. Illustration A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B's dying A as heir obtains Z.C, not having rescinded the contract of sale, may require A to deliver Z to him. 44. Transfer by one co-owner.— Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's
- The Illustrations omitted by Act 20 of 1929, s. 11.
- Subs. by s. 12, ibid., for “of the latter property or to compel its enjoyment in a particular manner”.
- Ins. by s. 13, ibid.
Illustration A lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B is not chargeable with the rent so paid.
51. Improvements made by bona fide holders under defective titles .—When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such imp rovement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them. 52. Transfer of property pending suit relating thereto .—During the 1 [pendency] in any Court having authority 2 [^3 [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4 [the Central Government 5 ***], of 6 [any] suit or proceeding 7 [which is not collusive and] in.^ which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. (^7) [ Explanation.— For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order, has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.] (^8) [ 53. Fraudulent transfer .—( 1 ) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree - holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. ( 2 ) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
- Subs. by Act 20 of 1929, s.14, for “active prosecution”.
- Subs. by A.O. 1950, for “in the Provinces or established beyond the limits of the Provinces”.
- Subs. by Act 3 of 1951, s. 3 and the Schedule, for “within the limits of Part A States and Part C States” (w.e.f. 1- 4 - 1951).
- Subs. by A.O. 1937, for “the Governor General in Council”.
- The words “or the Crown Representative” Rep. by the A.O. 1948.
- Subs. by Act 20 of 1929, s. 14, for “a contentious ”.
- Ins. by s. 14, ibid
- Subs. by s. 15, ibid., for s. 53.
For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.] (^1) [ 53A. Part performance .—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2 ***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] CHAPTER III OF SALES OF IMMOVEABLE PROPERTY
54. “Sale” defined .—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made .—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale .—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. STATE AMENDMENTS Assam. Amendment of section 54 of the Central Act 4 of 1882. —In Section 54 of the principal Act, in para 2, for the expression “by a registered instrument” the following expression shall be substituted, namely: — “by an instrument registered in the State of Assam, notwithstanding anything contained in the India Registration Act, 1908 (Act 16 of 1908) to the contrary.” [ Vide Assam Act 10 of 1976, s. 2.] 55. Rights and liabilities of buyer and seller .—In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: ( 1 ) The seller is bound— ( a ) to disclose to the buyer any material defect in the property 3 [or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
- Ins. by Act 20 of 1929, s. 16.
- The words “the contract though required to be registered, has not been registered, or” omitted by Act 48 of 2001, s. 10 (w.e.f. 24 - 9 - 2001).
- Ins. by Act 20 of 1929, s. 17.
