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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

- 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:

1. A determinate portion of the earth’s surface.

2. Possibly the column of space above the surface.

3. The ground beneath the surface.

4. All objects which are on or under the surface in its natural state- minerals, lakes, ponds, rivers.

5. 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-

Apart from property being immovable from the physical point of view, every benefit arising out of it and every interest in such property is also regarded as immovable property.- hereditary allowances, rights of way, lights, ferries and fisheries. A debt secured by a mortgage of immovable property is an interest inland. A right to collect lac from jungle, flash from pond, right to take minerals, rent from hat or market place.

Things attached to earth-

S.3 – defines the expression –attached to the earth- as including-

1. Things rooted in the earth,

2. Things imbedded in the earth,

3. Things attached to what is so imbedded,

4. Chattel attached to earth or building.

Things rooted in the earth-

Includes like trees and shrubs, but when such trees constitute standing timber they are not immovable property.

Shantabai v/s State of Bombay- if the intention is to use them for enjoying their fruits, they will be regarded as immovable property. But if the intention is to cut them down sooner or later for the purpose of utilizing the wood they would be timber and regarded as movable property.

Similarly, growing crops, and grass are regarded as movable property.

Things imbedded in the earth-

Includes such things as houses and buildings, there are certain thing which are imbedded in the land but not a immovable property like anchor imbedded in the land to hold a ship.

When the article in question is no further attached to the land by its own weight, it is generally to be considered as movable property. But when in such a case if the intention is to make the articles as part of the land

The rule is- if the article stands on the earth up to its own weight, it will not be part of the land but if it is caused to go deeper in the earth by external agency, then it is part of a land.

Things attached to what is so imbedded-

Includes like door, window of a house are attached to the house for the permanent enjoyment of the house, when the intention Is not permanent enjoyment then it becomes the movable property like fans, blinds.

Chattel attached to earth or building-

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-

1. Right to collect rent of immovable property.

2. Right to collect dues from a fair on a piece of land.

3. Right of ferry.

4. Right of way.

5. A right of fishery.

6. A debt secured by mortgage and interest of a mortgage of immovable property.

7. Hereditary offices.

8. Right to receive future rents and profits of land.

9. The equity of redemption.

10. Reversion of property of leased.

11. Right to collect lac from trees.

12. A factory.

Recognized as movable properties-

1. Right to worship.

2. A royalty.

3. A decree for sale of immovable property.

4. A decree for arrears of rent.

5. A right to recover maintenance allowance.

6. A machinery which is not permanently attached to the earth.

7. Government promissory notes.

8. 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

1. Sale (Immovable Property). Transfer of Complete Rights. Consideration.

2. Mortgage. ( it is of six kind- 1. Possession,2. Enjoyment,3. Subject to Condition,4. Equitable,5. Symbolic, 6. Constructive.) Limited Rights Transfer.

3. Gift- ( No consideration)

4. Actionable claim.- Unsecure debt.

5. Lease (Time force, Rent)

Movable Property= Pledge

Immovable Property= Mortgage.

Machinery= Hypotation.

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.

x x x x x

What is transfer? The term "transfer" means a process or an act by which something is made over to another. It does not however, mean that the making over of the thing should always be absolute. I may transfer my book to you for a day. I may also transfer it to you absolutely either by sale, gift or in exchange of your book. In either case, what is primarily essential is that I have to handover the book to you, and that act of handing over the book to you is the transfer of the book.

Analysis of Definition.

1. Transfer of Property has special technical meaning in Transfer of Property Act. Only 5 conveyances are transfer of property for the Act. Three modes convey absolute title e.g. sale, gift, exchange. Two convey limited interest e.g. mortgage and lease.

2. Transfer inter vivos alone are included as Transfer in Transfer of Property Act, e.g. transfer from living person or persons to living person or persons.

3. Transfer can be present or future but transferor and transferee must be living person. The only exception is Section 13 of Transfer of Property Act.

4. Living person is wider term than natural human beings. It includes juristic persons like company and other like associations or body of individuals whether registered or not registered.

5. Other laws governing transfer to juristic persons etc. are not affected by Transfer of Property Act.

Synopsis-

Definition-

 An act by which,

 A living person,

 Conveys,

 In present or future,

 Property,

 To another living person.

Not a Transfer of Property

- 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).

S.6- What Can be Transfer-

Section -6

General Rule- Every thing Can be Transfer

Exception- Prohibited by S.TPA, any other law in force.

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.

Chance of Legacy- because the will executed only after the death of the testator.

Rights of Future offering. Receiving offering of a temple.

Case law-

Punch Tahkur v/s Bindeshwari AIR 1916 Cal 43 Cultauta High Court held-

it is mere possibility so it cannot be transfer.

Balmukund v/s Tularam AIR 1928 All 21

It is not the spes succession , it is not a hope or uncertain and not variable to pass and of conception of law hence transferable.

Badrinath v/s Punna AIR 1979 SC 13`14 – Vashno Devi Tample –

It is not a mare possibility it is attached with a duty, and held it is heritable and it is not depending upon possibility it is coupled with duty and hence transferable.

Spes Succession Condition in English Law

Spes Secceession not transferable but it depend on one conditions,

1. if the transferee has paid the consideration.

2. If everything goes well that contemplated event has been done.

Section 9- Oral Transfer- Mode of Transfer

This section deal with mode of transfer, it says where writing is not necessary the property may be transferred orally. i.e. without writing any deed.

It means there are two mode of transfer-

1. Delivery of possession- which generally happened in case of movable property.

2. Transfer by registration.

In the following condition Registration are compulsory u/s 9 of TPA-

1. Gift of an immovable property.

2. Sale of an immovable property exceeding Rs 100.

3. Sale of reversion or other intangible property irrespective out of its value.

4. Leases form year to year or for a term exceeding one year or reserving a year rent.

5. Simple mortgage irrespective of its amount.

6. Other kind of mortgage( except mortgage by deposit of title deeds) where the sum secured exceeds Rs 100.

7. Exchange of immovable property ERs 100.

8. Transfer of actionable claim.

Section 10 Conditional Transfer

Conditional transfer if allowed.

There are two form of Conditions-

1. Use related conditions.

2. Further transfer of property- alienation.

Application of S.10-

Does not apply on –

1. Mortgage

2. Lease