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The transfer of property act 1882, Exams of Law

Central University of South Bihar Law

Important topics for exam purpose.

Typology: Exams

2020/2021

Uploaded on 06/27/2021

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The transfer of property act 1882

Immovable properties

-The definition of immovable properties it is negative definition, which say what is not an

immoveable property.

-Section 3- of Transfer of property Act 1882-immoveable property does not include

standing timber, growing crops or grass.

-Section 3- of The General Clauses Act 1897- “ Immovable property-

Land Benefits to arise out of land- Profit Appendary (Exp- Rent, fishing rights, right

to ferry, lease)

Things attached to the earth or permanently fastened to anything attached to the

earth.- Exp- building, wall, poll.

Definition of Immovable Properties-

Section 3- immovable property shall include land, benefits to arise out of land, and things

attached to the earth, or permanently fastened to anything attached to the earth, except

standing timber, growing crops or grass, it also include creepers and betel leave.

What is the meaning of Land in TP-

There are four meaning of Land in TP-

1. Plot of land or plain land.

2. Land includes space as well.

3. Things beneath land.

4. Things above surface or thing on surface.

Case law- Narayan Sa v/s Balagure Swami AIR 1924 Madras 187

Vassal used for destilation of liquor not immovable property.

Standing Timber- Case Law- Shanti Bai v/s State of Bombay AIR 1958 SC 532

In this case SC held that , intention of the owner decide whether a standing timber a timber

or crop.

- A fruit bearing tree are immovable property, if the owner treat it as a timber .

Q-

- which one is immovable property?- 2003-SN

- Growing crops? 2003-SN

1 | P a g e

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The transfer of property act 1882

Immovable properties

The definition of immovable properties it is negative definition, which say what is not an immoveable property.
Section 3- of Transfer of property Act 1882-immoveable property does not include standing timber, growing crops or grass.
Section 3- of The General Clauses Act 1897- “ Immovable property- Land Benefits to arise out of land- Profit Appendary (Exp- Rent, fishing rights, right to ferry, lease) Things attached to the earth or permanently fastened to anything attached to the earth.- Exp- building, wall, poll. Definition of Immovable Properties- Section 3- immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth, except standing timber, growing crops or grass, it also include creepers and betel leave. What is the meaning of Land in TP- There are four meaning of Land in TP-

Plot of land or plain land.
Land includes space as well.
Things beneath land.
Things above surface or thing on surface. Case law- Narayan Sa v/s Balagure Swami AIR 1924 Madras 187 Vassal used for destilation of liquor not immovable property. Standing Timber- Case Law- Shanti Bai v/s State of Bombay AIR 1958 SC 532 In this case SC held that , intention of the owner decide whether a standing timber a timber or crop.

A fruit bearing tree are immovable property, if the owner treat it as a timber. Q-
which one is immovable property?- 2003-SN
Growing crops? 2003-SN

Right to ferry? 2003-SN
Standing timber? 2003-SN
Define immovable property. In which cases things which we know as movable are treated as immovable property? Is there any test to decide it-2007-L A- The definition of Immovable property given in the S.3 of Transfer of Property Act 1882, is not exhaustive, it is the negative definition which exclude the things and says immovable property does not include standing timber, growing crops or grass. The definition in the General clauses Act also not exhaustive but it is some what positive definition which includes land, benefits to arise out of land , and things attached to the earth. Things attached to earth, or permanently fastened to anything attached to earth? a. Things rooted in the earth- trees and shrubs. b. Imbedded in the earth- wall or building. c. Attached to what is so imbedded for permanent beneficial enjoyment of that which it is attached- Perumal v/s Ramaswami – held- oil engine attached to earth and the attachment to lasts only so long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment in such case immovable property. Narayan Sa v/s Balagure Swami AIR 1924 Madras 187 Vassal used for destilation of liquor not immovable property. The degree, manner, extent and strength of attachment of the chattel to the earth or building, are main features to be regarded. Further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. Land- considers in its legal aspect, land includes the following elements:

A determinate portion of the earth’s surface.
Possibly the column of space above the surface.
The ground beneath the surface.
All objects which are on or under the surface in its natural state- minerals, lakes, ponds, rivers.
All objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land, and lose their identity as separate movable – building, walls, fences. Benefits to arise out of land-

If a chattel, i.e., movable property is attached to earth or building, it is immovable property. Perumal naicker v/s Ramaswami Kone- A property is a movable property and for its beneficial use of enjoyment it is necessary to imbed it or fix it on earth, through permanently, that is , when it is in use it should not be regarded as immovable property for that reason. For example – sugar cane machine or oil engine. Recognized as Immovable properties-

Right to collect rent of immovable property.
Right to collect dues from a fair on a piece of land.
Right of ferry.
Right of way.
A right of fishery.
A debt secured by mortgage and interest of a mortgage of immovable property.
Hereditary offices.
Right to receive future rents and profits of land.
The equity of redemption. 10.Reversion of property of leased. 11.Right to collect lac from trees. 12.A factory. Recognized as movable properties-
Right to worship.
A royalty.
A decree for sale of immovable property.
A decree for arrears of rent.
A right to recover maintenance allowance.
A machinery which is not permanently attached to the earth.
Government promissory notes.
Standing timber, growing crops, and grass. Section 5, Transfer of Property Section 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 and one or more other living persons; and "to transfer property" is to perform such act.

When we analyze the above definition- there are few things which comes up regarding Transfer of property-  Transfer is an ACT- Giving and Taking of Rights- Active Act, Visible Act.  Between two or more LIVING PERSON- by which a living person Inter vivos- Living or Natural person and Artificial Person ( Law existence, company).  Conveys- transfer.  Present or future- Future property not allowed.  Property- Property to another person- To himself ( Trust, minor or guardianship- Rahubar Singh v/s Jai Jnder Bhadur Singh. Transfer of Property Act Practice Insolvent Subject matter Mode of Transfer There are modes of transfer of property

Sale (Immovable Property). Transfer of Complete Rights. Consideration.
Mortgage. ( it is of six kind- 1. Possession,2. Enjoyment,3. Subject to Condition,4. Equitable,5. Symbolic, 6. Constructive.) Limited Rights Transfer.
Gift- ( No consideration)
Actionable claim.- Unsecure debt.
Lease (Time force, Rent) Movable Property= Pledge Immovable Property= Mortgage. Machinery= Hypotation.

Family settlement.
Compromise
Partition.
Surrender.
Relinquishment.
Charge.

Transfer of Property

Release
Property situated outside India. An Act- it means it is a process or an activity; it is not a digital application or not the automatic process. Meaning thereby, something should be done by the person who wants to transfer his or her property. Will or Inheritance is the exception of this rule as property transfer automatically by operation of law. Living Person- The Act use the word Inter Vivos i.e. transfer between living person AT THE DATE OF TRANSFER. Operation of law come into picture in case of Inheritance or wills ( means the death of the transferor) this sort of transfer ( By operation of law) called TESTAMENTRARY TRANSFER. Conveys – Doing an act of transfer denote conveys. It means any act the transferor by which certain new titles or interests are created in favor of the transferee. In simple language it would be called the ASSURANCE which is being given by Transferor to the Transferee. Conveys means anything done or any assurance given by the Transferor to the Transferee by virtue of which the transferee gets the new title or interest is called the conveys. Emp- A -------------------- Make (Sale/Gift/Moorgate etc) ------------ B ( Now get the new title) Conveys In present or In future- The transfer of property may be take place immediately or in future date, the expression in present or in future governed by Conveys, it does not govern by the property. Means the title of property may vested in the transferee immediately with enjoyment or it enjoyment can be delayed or postpone for future, which can also comply with certain conditions.

Property- property may be tangible or intangible, property is essentially a bundle of rights or interest. When a property is transferred it actually the transfer of rights. All rights in a property denote the ownership or absolute interest. in Sunil Sidhartbai v/s Commissioner of Income tax, SC held that in general transfer of property transferred the bundle of right but in some case it may only be partial of right transfer also happen example – Lease. In Jugalkishore V/ Ram Cotton Co. Ltd. SC held- the world PRESENT OR IN FUTURE’ qualify the word conveys and not the word property. When a future property is transferred the transferee does not get that property or interest there in. To another living person. There should be another person to whom the property can be transfer, a person can not transfer the property to himself, but in 1929 some amendment has been made and a person can transfer a property to himself in case he make any settlement in a trust and he become the sole trustee. Other Rules- Not a Transfer of Property Family Settlement- Family settlement or Family agreement is not a transfer of property, why because when it take place the already existing shares of the members of the family are defined and separated in order to avoid any possible dispute. In Sadu Madho Das V/s Pandit Mukund Ram, SC observed the same principle. Transfer of property Release- It is a transfer of property, because when larger interest falls into smallest interest every small interest generate a title for some one or new person. This Act also applicable on MOVABLE AND IMMOVABLE PROPERTYS ( Part A –Chapter II).

Section - General Rule- Every thing Can be Transfer Exception- Prohibited by S.TPA, any other law in force.

TransferPermitedCategory-CanbeTransferProhibitedCategoryCannotbeTransfe

r

ProhibitedUnderS. 6 TPASection. 6 ProhibitedUnderAnyotherLaw

Section .6 – Non Transferable.

Spes Successionis- Mere Chance to Get any thing.
Chance of an Heir apparent.
Chance of getting property under will.
Any othe rpossibility like nature.
Spes-successionis under Muslim Law.
Spes Successionis in Punjab.
English Law.
Mere Right of re entry.
Easement right apart from Dominate Heritage.
Restricted Interest.
Right to Future Maintenance.
Pensions and Stipens.
Transfer opposed to Nature of Interest.
Transfer opposed to nature of interest created thereby.
Transfer where its object or consideration is unlawful.
Transfer made to disqualified transfereee. Spes Successionis- Expectation of succession ( of gaining something) Exp- will or inheritance It includes- - Base – You can not transfer mere hope.
Chance of an Heir apparent- succeeding to an estate.
Chance of getting property under will.
Any othe rpossibility like nature. Right of reversioners u/Hindu Law. Reversioner was a person who used to inherit the properties of a widow held by her for life. After the death of widow.

Exchange of immovable property ERs 100.
Transfer of actionable claim. Section 10 Conditional Transfer Conditional transfer if allowed. There are two form of Conditions-
Use related conditions.
Further transfer of property- alienation. Application of S.10- Does not apply on –
Mortgage
Lease Applicable on following-
Sale.
Gift.
Actionable claim. Nature of Alienation- Only the CONDITIONS would be void not the transfer. General Rule- Right of disposing of property is the essential right of ownership. S.10 put a check on absolute restraint of alienation, and made the condition void. But there are two exception of this general rule
Lease.
Married woman. In both the cases the absolute restrain of alienation can be made. S.10 are based on the rule of equity, that property should no be made inalienable permanently. There for the provision s of this section may be applied also to those transfers which are not govern by this Act for example Punjab which is out of the purview of this act but the principle of alienation is applicable all the transfer in Punjab if the transfer against the principle of alienation. Why it is exception of general rule of S.10, because it is itself a conditional nature

Section-10- Condition restraining alienation- Void the Condition not the Transfer. Where property is transferred subject to a condition or limitation ABSOLUTELY RESTRAINING the transferee or any person claiming under him form parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of 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 women (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.  Conditional Transfer  Absolute restraint  Partial restraint  Restaint on alienation in compromises  Applicability of S. Exception

Married woman
Lease CRUX OF S. -CONDITION TRANSFER- VALID OR NOT -TYPE OF CONDITIONS
USE RELATED
FURTHER TRANSFER OF PROPERTY- called Alienation O BJECT-  PROPERTY SHOULD BE TRANSFER FROM ONE TO ANOTHER FOR THE HEALTH OF NATIONAL WEALTH  RIGHT OF DISPOSAL IS ONE OF THE ESSENTIAL FEATURE OF OWNERSHIP, AND IT IS THE RIGHT OF OWNER  THE TRANSFER WOULD NOT VOID BUT THE Condition would void Ingredients-  Conditions which absolutely restraint the alienation

 Partial restraint is valid and enforceable- Muhammad Raza V Abbas Bandi Bibi- condition restraint the transfer outside the family.  S10 applies only when there is absolute transfer of ownership like Sale, Gift, Actionable Claim  I t does not applies on Mortgage or Lease. Compromise- is outside the preview of S5 Transfer of property so S10 does not apply on Compromise. Mata Prasad V Nageshar Sahai- Dispute over succeeding the properties of the deceased between his widow and nephew. It was compromise between them that widow shall hold the possession of the property for her life while admitting the title of the nephew but nephew was restrained from transferring the property during the life of the widow. Same in Laxmama V State of Karnataka- Held – Grant by Govt is not fall within the meaning of S5 so it can be restraint. Exception- Lease- It applies to permanent or temporary lease. Married woman- to safeguard the right of married women. Section 11- Restriction repugnant to interest created- Section 11 r/w S Crux- Right to use in a particular Manner- is void. Exception-

Necessity of Beneficiary Enjoyment of property adjacent to property. (Which has been established in Tulk v Moxhay 1848,41 ER 1143- and call the RESTRICTIVE COVENANTS)
The condition has been imposed by the transferor himself. S-10 S 11 FURTHER TRANSFER MODE OF USE LIMITED AND ABSOLUTE ONLY ABSOLUTE

No transfer can be made directly to an unborn person. Such transfer can be made by the machinery of trust. Reason behind if a transfer were made directly to an unborn person, there would be an abeyance of ownership form the date of transfer till the coming into existence of the unborn person which is void according to English Common Law. PRIOR INTEREST In case the trust is not created , the estate must vest in some person between the date of the transfer and the coming into existence of the unborn person. In other words, the interest in favour of an unborn person must always be preceded by a prior interest in favour of a living person. Illustrations I. A transfer his house to X for life and thereafter to UB (unborn) who is an unborn son of A. The transfer of house in favour of UB is valid, here since UB is not in existence at the date of the transfer, A could not transfer the houser directly to him. So, A had to make a direct transfer of life interest in favour of X who is a living person at the date of the transfer. After the death of X the interest of the house shall pass on to UB who is the ultimate beneficiary. ABSOLUTE INTEREST The entire property must be transferred to the unborn person. It is not permissible to confer a life-interest on an unborn person. in English Law it is possible to give an estate to an unborn person for life. But this aspect of Enlish Law was subject ot a restriction called the rule against double possibilities. Illustration I. A transfer his property to X for his life and thereafter to UB for life X is a living person at the date of the transfer. UB is not into existence at the date of transfer so the transfer of life interest of X is valid. But the transfer of life interest of UB is void because although the transfer in favour of UB is preceded by a life interest to X but UB himself has not been given an absolute interest. The result is, therefore that X shall hold the property during his life but after his death it shall not pass on the UB but shall revert back to A or ( if A is dead that time) to A’s legal heirs. Reason- giving life interest or creating life estate in favour of a person means giving him only the RIGHT OF ENJOYMENT AND POSSESSION. HE HAS TO PRESERVE THE PROPERTY LIKE A TURSTEE DURING HIS LIFE TIME ON BEHALF OF UNBORN.

GIRIJESH DUTT V/S DELTA DIN

Held that the gift in favour of unborn daughter was invalid u/s 13 because the gift was of limited interest and subject to prior interest in favour of B.

The transfer of property act 1882, Exams of Law

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Partial preview of the text

Download The transfer of property act 1882 and more Exams Law in PDF only on Docsity!

The transfer of property act 1882

TransferPermitedCategory-CanbeTransferProhibitedCategoryCannotbeTransfe

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ProhibitedUnderS. 6 TPASection. 6 ProhibitedUnderAnyotherLaw

GIRIJESH DUTT V/S DELTA DIN