SEMESTER 3rd

TRANSFER OF PRPPERTY ACT -1882

(UNIT-1 - MODULE-1)

DR WAHEED ALAM

Assistant Professor,

Shia College of Law.

UNIT-I (Module- 1)

TRANSFER OF PROPERTY ACT 1882

Introduction:

1. When a movable property (or goods) is transferred from one living

person to another living person the law applied is the "Sale of Goods

Act 1930".

2. When property is transferred from dead person to living person the

law applied is the 'Law Succession, 1956'.

Two Categories:

a) When a person dies testate, dies leaving a testate will, the law applied

is testamentary succession.

b) When a person dies intestate dies without testate will the law applied

is intestate succession.

3. When an immovable property is transferred from one living person to

another living person the law applied is Transfer of Property Act,

1882 (TPA).

The Transfer of property Act was passed in 1882 come into

enforcement from 1st July, 1882.

It mainly deals with the Transfer of immovable property also movable

property b/w two living persons.

The Act does not apply to transfer by operations of law. (E.g. SUCCESSION, COURT'S ORDER, (SALE) INSOLVENCY ETC)

It contains 137 sections divided into 8 chapters & two parts.

DEFINITION CLAUSE ¹

1. Immovable Property

2. Attested

3. Actionable Claim

4. Notice

TRANSFER OF PROPERTY ACT, 1882

By Act of Parties By operation of law (Voluntary) (Compulsory) [Eg.Succession, Insolvency, Execution etc.] Testamentary (takes effect Inter Vivos (takes effect b/w Death& Governed by the two living persons & governed Indian Succession Act) by the T.P.A. Transfer of property Transfer of Immovable property Whether movable of Immovable Sec. 25 to 53A & 54 to 137 (Sec. 5 to 37 and 122 to 137 Sales Mortgages Ceases Exchange Gifts Actionable

Claim (S.Sec.54-57) (S.Sec.58-104) (S.S.105-157) (S.S.-118-121) (S.S.122-129)(130-137)

IMMOVABLE PROPERTY

Immovable Property is one which can't be transferred from one place to

another without causing damage to such property.

Definition of immovable Property Sec.-3 Para (2)of the act property

as Immovable property does not includes-

a) Standing Timber :

[Note- Standing timbermeantrees for use for building or repairing

houses.]

b) Growing crops

[Note- Growing crops includes all vegetables growth which have no

existence apart from their produce such as panleaves, sugarcane

etc)

c) Grass

[Note: Grass can only be used as Fodder and is a movable property.

General Clauses Act 1897

Sec-3 (K) 26 of the general clauses Act 1897,defines immovable property.

The term immovable property includes three things.

i) Land

ii) Things attach to earth

iii) Benefits arising out of land

Land:

This word does not include only the upper surface of earth but is

extensive enough to cover things below itforexample, minerals.All these are

immovable property. Any right in these or in respect of these or any other

interest in it are all Immovable property. Besides wellTube well, rivers,

ponds, tanks, streams, canal, dug on surface whether natural or artificial all

things covered of the term land.

Benefits arising out of land:

Benefits arising out of land like the right to receive future rent is an

Immovable property. The example of benefits are rent from house, shops

and jagir, Revenue from agriculture, right to collect lac, leves or other

things from forest trees, etc. similarly right to collect tax on Ghats and

bridges are all examples of benefits arising out of land.

Things attached to earth:

Following items fall within the meaning of the things attached to earth.

a) Things rooted in earth, E.g.: trees, shrubs excluding standing timber,

growing crops, grass etc.

b) Things imbedded in the earth; E.g.; wall and buildings, minerals etc.

c) Things fastened for the permanent beneficial enjoyment of anything

embedded to earth E.g.; windows, doors, ceiling fan etc.

Ceiling fan may be regarded as an immovable property if it is fixed for

permanent beneficial enjoyment. If it is meant for temporary purpose

it is an immovable property.

ATTESTATION/ ATTESTED

Meaning:

The expression 'attestation' means to sign & witness the fact of

execution of a document by the executend.

Attest means to justify a fact to bear witness to fact. Attestation in a

relation to a document significances the fact of authorization of the

signature of the executed of that document by the attester.By putting down

his own sign on the documents in testimony of the facts of the execution.

The term 'attested' in sec- 3 of TPA means that the person has

signed the document by way of testimony of the fact that he saw it

(document) executed.

Essentials:

An attestation to be valid the following conditions are to be satisfied-

1) Definition under section this confined to only to non- testamentary

instruments.It will not apply to wills.

2) Minimum 2 attesting witnesses are needed. Maximum is not

mentioned.

3) Three modes of attestation are recognized. e.g.:

(I) Each sees the executant signing or fixing Mark, or

(II) Each sees some other person signing in the presence and by

the direction of the executant, or

(III) Each has received from the executant the personal

acknowledgement

(a) of executant's sign

(b) of executant's mark

(c) sign of one who signed for the executant in his presence and

by his direction.

4). Each witness signs the instrument in presence of executant.

5.). Presence of both or all attesting witnesses one and at the same time

isnotessential.

6.) No particular form of attestation is prescribed.

*Qualification of Attestor: An attestor must be a major and a person of

sound mind. He may be literate or illiterate. A party of deed should not

attest.

Effect of invalid attestation: where attestation is compulsory, is must be

attested properly. Otherwise, it is ineffective. According to section 59 of the

act, if a mortgage deed is not duly attested, it can not be enforced in a

Court.

Note: Attestation is an important formality in execution of Transfer. All

transfers do not require attestation. It is necessary in certain cases like gift,

mortgage etc, optional in case of sale, lease etc.

Attestation is valid and complete, when to witnesses sign the

instrument. The object of attestation is to ensure that there is no fraud or

vitiating circumstances in the execution of a document.

Case Law:

Kundan Lal vs. Mushar ²

In this case the executant was a pardanashin lady was sitting behind the

thin curtain when the attestors signed. The Privy council held that the

attestation was valid as the executant, if so minded, could have seen the

witnesses, even if she did not actually see them, through the curtain. It is

tantamount to say that an attesting witness should sign his name in the

presence of the executant.

Rao Ganga Prasad Singh vs. Isturi Prasad Singh³

In this case deed of mortgage was signed behind the purdah and was

brought to the witness bearing a signature which the son of the lady said

was her signature. The Privy council held that there was no valid

attestation, the attestator must have actually witnessed execution or

received from the executant an acknowledgement of execution.

ACTIONABLE CLAIMS:

Actionable claim an act or claim for which an action can be instituted in civil

court for relaxation of the benefit it means.

(I) Any unsecured debt

(ii) Any interest in movable property not in possession of the claimant

An actionable claim is a claim to take legal action for realisation of the

benefit.

The constituents of the above definition may be explained as follows:

1. UNSECUREDDEBT :The claim under actionable claim may be an

unsecured debt without security. Debt secured by a Mortgage of

immovable property or by a pledge of movable property are not actionable

claim.

E.g.: X owns rupees 5000 to 4 against a promissory notes y's claim

actionable claim.

2. Beneficialinterst in movable property:

A right to claim benefit in a contract of purchase of goods is a

beneficial interest in movable property.

E.g.: A agrees to sell 100 bags of wheat to be delivered on a future

date. beneficial interest is actionable claim.

Example of Actionable claim:

i) Right to claim benefit under a contract of purchase of goods.

ii) Claim under insurance policy.

iii) Amount standing at the credit of provident fund a/c.

iv) Share in partnership.

v) Arrear of rent & etc.

Not Actionable claim:

i) Share in company

ii) Copy Right

iii) Mortgage

iv) Right to Recover damages from breach of contract.

NOTICE

Notice literally means knowledge at to existence to certain facts.

Section 3 of the TPAct defines notice, - A person is said to have notice of

the fact may he-

- Actually knows that factor .

- But for will full abstation from an enquiry or search which he out to

have made or gross neglegence he would have known it.

EXPLANATION-1

Where any transaction relating to immovable property it required by

law to be and has been effected by a regireved any person acquiring such

property or any part of share, interest in such property shall be deemed to

have notice of such instrument as from the vegirtration.

EXPLANATION-2 :

Any person acquiring any immovable property any share or interest in

any such property shall be deemed to have notice of the title if any person

who is for the time being in actual possession their off.

EXPLANATION-3 :

A person shall be deemed to have had notice of any fact if his agent

acquires notice on his behalf in the course of business to his that fact is

material.

Note: If the agent frauduntly, conseals the fact the principal shall not be

charge with notice.

Kinds of Notice: Notice is of three kinds, namely:

1. Actual or express notice.

2. Construction notice or implied notice

3. notice to agent.

1. Actual or Express Notice: It is a notice by which the person acquires

actual knowledge of the fact. It requires actual or real information about the

fact and should not be a vague report or remor.

Actual notice, to constitute a binding force must be definite information

given by a person interested in the things in respect of which the notice is

issued.

Note : The notice must be given in the same transaction. A person is

not bound by notice given in a previous transaction which he may have

forgotten.

2. Constructive notice: It is a notice which treats a person who ought to

have known a fact, as if he actually knows it. It is a presumed or implied

notice.

The legal Presumption take place in the following cases:

i) Wilful abstention from an enquiry or search,

ii) Gross negligence,

iii) Registration as notice,

iv) Actual possession as notice

v) Notice to agent

vi) State property amount to notice.

3. Notice to Agent: Notice through agency is defined in explanation III to

section 4 of the TP Act. The General rule is that notice to the agent is the

notice to the principal on the basis of vicarious liability. This rule also is

subject to certain limitations. Notice should have been received by agent

a ) During the agency

b) In his capacity as an agent

c) In the course of the agency business, and

d) In the manner material to the agency business.

Note: Communication by agent to the principal is not necessary.

Exception: Fraudulent concealment of fact by agent does not amount to

notice to the principal.

Conditions: To constitute imputed notice, the following conditions are to be

satisfied:

1. The agent should have received the notice during his agency.

2. The agent must act as an agent in his capacity as agent.

3. The notice must be received in the course of business.

4. It must relate materially to the agency business.

5. It should not have been fraudulently withheld from the principal.

References :

1. Section 3 of the TP act. 1872.

2. (5 PC 207)

3. (34 MLJ 545 (PC)

Bibliography

1. Dr. Rega Surya Rao, Lecture on law of property, Asia law house

Hyderabad, reprint 2018.

2. Dr. T. P. Tripathi, Transfer of property act, Allahabad law agency

publication, eight edition 2008.

3. Bare act, transfer of property act,1872, CLA'S edition, 2015.