Escolar Documentos
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Cultura Documentos
acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as
against any person who was a party to or otherwise cognizant of the fraud.
a) LAND. It encompasses the upper as well as the lower surface of the earth. Any interest in the same will be treated
as that of immovable property. It would include wells, streams etc.
b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing with rights and interests in
land as defined above. Right to collect rent or zamindari rights are two examples.
c) THINGS ATTACHED TO EARTH. The nature of attachment is important.
This clause is explained with reference to the following three points:
a) Things rooted in the earth like trees, shrubs but not including standing timber, growing crops and grass.
Jamuna trees are treated as immovable properties.
b) Things embedded in the earth like buildings, minerals etc. By embedded we refer to things that have their
foundations laid well below the surface of the earth. An anchor of a ship is not immovable property in its normal
usage.
c) Things that have been permanently fastened to anything embedded in the earth for the purpose of permanent
enjoyment. For example, ceiling fans, doors and windows. If the objects that have been attached are merely
transitory or not permanent and do not contribute to the value and purpose of the thing attached to, they are not
immovable properties.
To determine whether a fixture is permanent or not, the following points need to be considered:
a) Mode of Annexation: Temporary, standing on its own weight or dug in to the earth, etc.
b) Purpose or Object of Annexation:
Trade fixtures are to be treated in association with the business and not the land as the fixtures are attached in
connection with the business. Such fixtures are to be treated as accessory to the business and not as annexation. The
position is different if the person attaching the fixtures in a business place is the owner himself.
When it is a machinery in the factory, the court has to see the object and purpose of such installation. The beneficial
enjoyment of the machinery itself, the degree and the manner of attachment or annexation on to the earth are other
points for consideration.
The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical aspects of property in the
definition present in the said Act. The definition under the Act is as follows, Immovable Property includes land,
buildings, hereditary allowances, rights of ways, lights, ferries, fisheries or any other benefit arising out of land and
things attached to the earth but not standing timber, standing crops or grass.
CONCLUSION OF VARIOUS DEFINITIONS OF IMMOVABLE PROPERTY
All the definitions read together can give us a clear idea what is included or excluded from being an immovable
property. They do not define immovable property per Se. A clear idea can be obtained by creating a common
definition by mixing these three.
Immovable Property means lands, benefits arising of the lands and the things attached to the earth or permanently
fastened to anything attached to the earth. Other than the physical aspect, every benefit arising from and every
interest in the property is also included in the definition. It excludes three things, namely, standing timber, growing
crops and grass.
What is included
1) A right to collect rent from an immovable property;
2) A right to receive future rents and profits of land;
3) A tenancy right;
4) Coal mines;
5) A borewell that has been fastened in a permanent way to the earth;
6) Hereditary Offices; and
7) Right to use water of a perennial stream.
derive a profit from the soil itself, in the shape of the nourishment in the soil that goes into the tree & makes it grow
till it is of a size & age fit for felling as timber & if already of that size, in order to enable it to continue to live till
the petitioner choose to fell it. - grant was not only for standing timber but also for trees that were to fell gradually as
they grow to attain regarded height ( & these trees r immovable property ) . Moreover in case of standing timber, it
is left to petitioner's choice to fell them - that means they are not to be converted into timber at a reasonably early
date & that the intention is that they should continue to live, in other words, they are to be regarded as trees & not as
timber that is standing & is about to be cut & used for purposes for which timber is meant. It is clear because the
right was spread for a period of 12 yrs & the intent was not to cut the trees at a reasonably early time period therefore lease doc is not a transfer of trees as wood(movable) but a transfer of benefit arising out of immovable
property - right to fell trees for a term of years, so that the transferee derives a benefit from further growth of trees.
5. St of Orissa v Titaghur Paper Mills Company Ltd, AIR 1985 SC 1293: (1985) Supp SCC 280
[ The contract should be examined as a whole with reference to all its terms & all the rights conferred by it & not
with reference to only a few terms or with just one of the rights flowing there from - 'bamboo contract' (right to cut
& remove bamboos with several ancillary rights) is related to immovable property as a benefit to arise out of land &
did not relate to a contract of movable property. ]
Facts n Issue - In this case a contract of the petitioner company with State of Orissa for the purpose of felling,
cutting & removing bamboos from forest areas for the purpose of converting the bamboos in paper pulp, or for the
purposes connected with the manufacture of paper, etc have been held to be profit a pendre or benefits arising from
land, & thus an immovable property.
Court overruled in St of MP v Orient paper mills
Other cases which court relied on:Ananda Behera vs St of Orissa - right to fish - right in immovable property
6. Bamdev Panigrahi vs Monorama Raj, AIR 1974 AP 226
[ Cinema equipments like projector, diesel engine etc, installed on the tenanted land temporarily, and not attached to
the earth, but also not permanently fastened to anything to the earth, are movable properties. ] touring talkie installed
on land - not attached to earth but was on a temporary shed on the land - name 'touring talkies shows that aim &
intent of installation was for temporary period
7.Duncan Industries Lts V State of Uttar pradesh (2001) 1 SCC 633
Whether a machinery embedded in the earth can be treated as moveable or immovable property depends on the
intention of the parties which embedded the machinery & also the intention of the parties who intend alienating that
machinery]
Transfer of fertilizer plant - machinery transferred as movable property - escaped stamp duty
HC observed & SC confirmed that machinery relating to manufacture of fertilizer in a sale of fertilizer plant is
immovable property
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2. Attestation ( Sec 3 )
Importance of Attestation;
The Transfer of Property Act, 1882, hereinafter referred to as TPA, lays down the law to regulate the transfer of
property between living persons.
[1] The TPA regulates transfer of property by providing for certain kinds of transfers-sale, mortgage, lease,
exchange, gift and also provides for attestation of the instruments, by which these transfers take place. To attest is to
bear witness to a fact.
[2] By providing for attestation, the TPA seeks to ensure that witness is borne to the fact that the transfer instrument
is signed without any element of force, fraud or undue influence.
[3] The TPA while making a provision for attestation, makes attestation mandatory only in case of certain kinds of
transfers-gifts and mortgages, to the exclusion of all other kinds of transfers.
To attest is to bear witness to a fact.
[4] To attest an instrument is to bear witness to the fact of verity of that instrument.
[5] Thus, under the TPA, which provides for various kinds of transfers, to attest a transfer instrument, is to bear
witness to the fact of variety of the transfer instrument, which is being executed by the transferor in favor of the
transferee. Section 3 of the TPA, defines attestation in its verb form attested.
Section 3, the part of which defines attested, reads as follows
Attested, in relation to an instrument, means and shall be always deemed to have meant, attested by two or more
witnesses each of whom has seen the executant sign or affix his mark on the instrument, or has seen some other
person sign the instrument in his presence and by direction of the executant, or has received from the executant
personal acknowledgement of his signature or mark, or of signature of such other persons, 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 be present at the same time, and no particular form of attestation shall be necessary.
Section 3 in laying down the meaning of attestation, enumerates three conditions for a valid attestation under the
TPA
-Firstly, there must be at least two attesting witnesses.
-Secondly, each of the attesting witnesses must see the transferor (or executant) sign the instrument or affix his mark
or see some other person sign the instrument or affix his mark under the direction of the transferor, otherwise each of
the witnesses must at least receive a personal acknowledgement, from the transferor, that the signature or the mark is
his.
-Thirdly, the attesting witness must attest with an intention of bearing witness to the instrument being signed and
with no other intention. Not following the above three conditions would make the attestation invalid and an
instrument invalidly attested, cannot be executed in a Court of Law.
Since, attestation is done in order to bear witness to the fact of verity of the transfer instrument, which is being
executed by the transferor in favor of the transferee, it naturally follows that the transferor, the transferee, or any
other person, who is party to the instrument, cannot be an attesting witness to the transfer instrument.
8.In Harish Chandra v. Bansidhar Mohanty, (2004)A mortgage instrument was executed by the appellant in favor
of the second respondent, but it was the first respondent who had advanced the money and had also attested the
mortgage instrument.
On the first respondent filing a suit to enforce the mortgage, it was contended that the first respondent was a party to
the instrument and hence, the attestation is invalid. The Supreme Court, while holding that attestation by a party to
the instrument would make the attestation invalid, ruled that in the present case, the first respondent is not a party to
the instrument but is a party to the transaction and being so, can attest the mortgage instrument.
Thus, for a valid attestation, it is necessary that any person, other than a person who is party to the instrument, is the
attesting witness.
Object :
The object of attestation in the TPA, was held out by the Supreme Court, again in, Harish Chandra v. Bansidhar
Mohanty.
In arriving at its decision that a party to a transaction, as opposed to a party to an instrument can be an attesting
witness, the Supreme Court, stated the object of providing for attestation in the TPA is to protect the executant
from being required to execute a document by the other party thereto by force, fraud, or undue influence.
Thus, the purpose, with which attestation, has been provided for in the TPA, is to ensure that the transfer of property
takes place voluntarily i.e. without any element-whether fraud, fraud or undue element vitiating the free consent
of the transferor. As such, providing for attestation, the TPA seeks to ensure that witness is borne to the fact of verity
of the transfer instrument in the sense of it being signed by the transferor voluntarily.
Scope :
The TPA, while it provides for transfers such as sale, mortgage, lease, exchange, gift, makes attestation
mandatory only for certain kinds of transfers by mortgage and gift. Section 59[13] of the TPA lays down that for
every transfer by mortgage to be effected, where the principle amount is Rs. 100/- or upwards, and where the
mortgage is not by way of deposit of title deeds, attestation is mandatory. In case of mortgages, where the principle
amount is less than Rs. 100/- a mortgage can be effected either, by registration and attestation, or mere delivery of
property. Hence, for mortgages where the principle amount is less than Rs. 100/-, attestation is not mandatory.
Similarly, Section 123[14] of the TPA, lays down that, for transfer by gift involving immovable property, attestation
is mandatory for the transfer of gift to be effected, a transfer by gift involving movable property can be effected
either by registration and attestation or by mere delivery.
Thus, the TPA makes attestation a mandatory requirement, only in case of transfer by mortgage and gift; that too,
mortgages involving a principal sum of Rs. 100/- or upwards and gifts involving immobile property, respectively.
Under the TPA, where attestation is made mandatory for certain kinds of transfers by mortgage and gift, attestation
is not mandatory at all for other kind of transfers, whatever principle sum they may involve or whatever property
they may effect a transfer of.
Who may be a competent witness; - Anyone apart from the parties to the transfer of property
mode of attestation; attestation by a Pardanasheen woman
9. Kumar Harish Chandra Singh Deo vs Bansidhar Mohanty, AIR 1965 SC 1738: (1966) 1 SCR 153
No provision of law debars a money lender from attesting a deed which evidences the transaction where under the
money was lent.
3rd person lended the money to the mortgagee but the mortgage deed was between the mortgagor & mortgagee.
Held 3rd person cud attest the deed even though it was he who lended the money. SC observed 3rd person is not a
party to the deed but a party to the transaction.
10.M.L. Abdul Jabbar Sahib v H. Venkata Sastri, AIR 1969 SC 1147: AIR 1969 SC 1147
This case highlights the importance of valid attestation in matters of transfer of property, it is essential that the
witness put his signature animo attestandi i.e. with intention of attesting.
3. Notice (Sec 3)
NOTICE
The last paragraph of the section 3 states under what circumstances a person is said to have notice of a fact. He may
himself have actual notice or he may have constructive notice may be imputed to him when information of the fact
has been obtained by his agent in the course of business transacted by the agent for him.
(a) Express or actual notice. -- An express or actual notice of fact is a notice whereby a person acquires actual
knowledge of the fact. It must be definite information given in the course of negotiations by a person interested in
the property.
(b) Constructive Notice. -- It is a notice which treats a person who ought to have known a fact, as if he actually does
know it. In other words, a person has constructive notice of all facts of which he would have acquired actual notice
had he made those enquiries which he ought reasonably to have made. The cases of constructive notice into two
classes :
(i) Cases in which the party charged has had actual notice that the property in dispute was in some way affected, and
the Court has thereupon bound him with constructive notice of facts and documents, to a knowledge of which he
would have been led by an inquiry after the circumstances affecting the property had come to his knowledge.
(ii) Cases in which the Court has been satisfied from the evidence before it that the party charged has designedly
abstained from inquiry for the very purpose of avoiding notice A purpose which, if proved, would clearly show
that he had a suspicion of the truth, and a fraudulent determination not to learn it.
Notice Effect of not making enquiry.-- Property was in possession of tenant. The vendee has not made any enquiry
with the tenant in respect of prior agreement for sale executed in favor of the tenant. The vendee purchased the
property without taking any enquiry though the property was in possession of the tenant. Held that the vendee would
be deemed to have notice of the prior agreement in view of Section 3 of T.P.Act.
Constructive Notice.-- The explanation in Section 3 of the Transfer of Property Act, which provides for fixing a
party with constructive notice in respect of registered transactions, contains a proviso that in order to amount to
constructive notice,
(1) the instrument has been registered and its registration completed in the manner required by the Registration Act
and the Rules made there under,
(2) the instrument has been duly entered or filed in books kept under Section 51 of the Act, and
(3) The particulars regarding the transaction to which the instrument relates have been correctly entered in the
indexes kept under Section 55 of the Act.
Constructive notice has roughly been defined as knowledge which the court imputes to a person upon a presumption
so strong that it cannot be allowed to be rebutted that the knowledge must have been obtained. This legal
presumption arises under this section :
(1) In relation to a fact (a) when but for willful abstention from an inquiry which a person ought to have made he would have known the
fact; or
(b) When but for gross negligence he would have known it;
The possession of a small part of a house will not put a purchaser on constructive notice of that person's rights as to
whole house.
12.In Mohd. Mustaffa v. Haji Mohd. Hissa, It was held that the principle of constructive notice cannot be
extended to a case where the person who claims on the basis of prior agreement is in possession of only a small
fraction of the property. In such a case, it cannot be said that the person who purchases the property must make an
enquiry about the previous contract from the plaintiff or any other tenant in occupation of a portion of the house.
Willful abstention from an enquiry or search.
The words willful abstention are said to be such abstention from inquiry or search as would show want of bona
fide in respect of a particular transaction.
It should be noted that the abstention from inquiry must be with some purpose or design and due to a desire to avoid
an inquiry would lead to ultimate knowledge. This sometimes happens when a person thinks that he has struck a
good bargain and wants to purchase the property quickly lest other persons might come forward and compete with
him.
Gross Negligence
The doctrine of constructive notice also applies when a person, but for his gross negligence, would have known the
fact. Mere negligence is not penalised. It must be gross negligence.
13.In Nawal Kishore v. The Municipal Board, Agra,
The court felt that there was a principle on which question of constructive notice cold rest, that principle being that
all intending purchasers of the property in municipal areas where the property is subject to a municipal tax which
has been made a charge on the property by statute have a constructive knowledge of the tax and of the possibility of
some arrears being due with the result that it becomes their duty before acquiring the property to make enquiries as
to the amount of tax which is due or which may be due and if they fail to make this enquiry such failure amounts to
a willful abstention or gross negligence within the meaning of Section 3 of the Transfer of Property Act and notice
must be imputed to them.
It is not necessary to show that the person has been guilty to fraud or negligence amounting to fraud. Fraud is quite
different from negligence. The former connotes active dishonesty, the latter simply implies indolence. Gross
negligence is a degree of negligence so gross that a court of justice may treat it as evidence of fraud, impute a
fraudulent motive to it and visit it with the consequences of fraud, although, morally speaking, the party charged
may be perfectly innocent.
Registration as Notice.
The doctrine of constructive notice applies also in case of documents which are required by law to be registered.
Where any transaction relating to immovable property is required by law to be, and has been, effected by a
registered instrument, any person acquiring such property, shall be deemed to have notice of such instrument from
the date of registration.
It must be noted that registration amounts to notice only in those cases where the instrument is required law to be
registered. That is to say where the registration of a transaction is of a transaction is optional, the fact of registration
does not amount to notice.
Finally, it must be noted that the instrument must have been registered in the manner prescribed by the Indian
Registration Act, 1908. If the instrument has been registered in the same registration sub-district as that in which the
property is situate, it operates as notice from the date of registration. If, however, the property is situate in several
sub-districts, or if the registration has been effected in another district, the registered deed will not operate as notice
until memorandum of such registration has been received and filed by the Sub-Registrar of sub-district in which the
property is situate.
obtaining knowledge, but whether as a reasonable man he ought to have made it i.e. in the given circumstances there
was a duty to find out. In present case plaintiff couldnot have reasonably have thought that the municipality had not
cared to secure the payment of taxes due & thus bound to enquire about the matter - he did enquire about the rent
that was collected by the recover - hence reasonable assumption that payment of taxes from rental income would be
paid by recover to the municipality
16. Md Mustafa V Haji Md. Isa, AIR 1987 Pat 5
Principle of constructive notice does not apply in cases where the person who claims on basis of prior agreement is
in possession of a small portion of the property (Plaintiff)Tenant was occupying 1/7th of the property - occupied by many tenants - claimed prior agreement - asked
for decree for specific performance - claimed defendant took full consideration amt for the prop also executed a
registered sales deed - claimed defendant asked all tenants to pay - SC observed that 1/7th possession of land - 6
more tenants - plaintiff cannot be said to be in possession of the land
17.H.N. Narayanaswamy Naidu vs Deveeramma, AIR 1981 Kant 93
[Principle of notice & constructive notice is applicable when the plaintiff was in actual possession of the property &
carried out major repairs at his costs.] - conditional sale - money to be returned after 6 years & within 6months
thereafter - subsequently the vendors were in need of money, they further executed an agreement that they would
release the agreement of re-conveyance - it is for that purpose that plaintiff calling upon them to execute the
registered release deed as assured - mother-son(def) resold the re conveyance right to another party (def3) - issue in
this case is whether defendant 3 a bonafide purchaser for value w/o notice of the right to get the re conveyance from
the defendant1 & 2 18. Ram Niwas vs Bano, AIR 2000 SC 2921: (2000) 6 SCC 685
The principle of constructive notice is applicable when the plaintiff was in actual possession of the property, the
word notice is of wider import than the word knowledge - a person may not have actual knowledge of a fact but he
may have notice of it.
tenant takes suit shop on rent - later agrees to buy it for 9200 pays 3200 as consideration amount and agrees to pay
the rest on execution of the sale deed - later resp1 to 4 buy the shop for 20000 - tenant files suit of sp performance
respondent 1 to 5(vendor & purchasers) - purchasers deny the genuineness of the agreement to sell - S19 of Specific
Relief Act provides categories of persons against whom the sp performance of a contract may be enforced - among
them is included under S19(b) any transferee claiming under the vendor by a title arising subsequently to the
contract of which special performance is sought - however a transferee for value, who has paid his money in good
faith & w/o notice of the original contact, is excluded from the purview of the said clause
- to fall within the excluded clause a transferee must show that
(i) he has purchased for value the property (which is the subject matter of the suit)
(ii) he has paid the money to the vendor in good faith
(iii) he had no notice of the earlier contract for sale (specific performance of which is sought against him)
SC observed that both TC & HC dealt with the question of purchasers knowledge of the fact - but said the issue in
question here is not knowledge but Notice(which is wider than the scope of knowledge) - Apex court held that
purchasers will be deemed to have notice of earlier 'agreement to sell', should it be found to be true & valid
-----------------------------------
Interests in Property
As ownership consists of a bundle of rights, the various rights and interests may be vested in different persons.
Absolute ownership is an aggregate of component rights such as the right of possession, the right of enjoying the
usufruct of the land, and as on. These subordinate rights, the aggregate of which make up absolute ownership, are
called in this Act interests in Property. A transfer of property is either a transfer of absolute ownership or a transfer
of one or more of these subordinate rights.
Transfer
The word 'transfer' is defined with reference to the word 'convey'. This word in English Law is its narrower and
more usual sense refer to the transfer of an estate in land; but it is sometimes used in a much wider sense to include
any form of an assurance inter vivos. Transfer must have an interest in the property. He cannot sever himself from it
and yet convey it. A lease comes within the meaning of the word 'transfer'.
The definition of transfer of property in this section does not exclude property situated outside India or the territories
to which the Act applies. It matters not that the property is situated outside India, or in the territories where the Act
does not apply; for it the transfer is effected where the Act is in force, the rights of the parties are to be determined
by the court under the Act leaving it to the party to prove that by the lex rei sitae, ie by the law of the land where the
property is situated, the transaction in invalid or defective.
A transfer is not necessarily contractual, and included a deed of appointment. The section does not require that the
'living person' who conveys should necessarily be the same person as he who owns, or owned, the property
conveyed by some living person; under the section, there may be a transfer by a person exercising powers over the
property of another.
Partition of joint Hindu family or Deed of partition of joint family property
A partition is not actually a transfer of property.
2.The Privy Council in Girja Bai v. Sadashiv Dhundiraj,
held that, partition does not give a coparcener a title or create a title in him; it only enables him to obtain what is his
own in a definite and specific form for purpose of disposition independent of the wishes of his former co-sharers. A
partition effects a change in the mode of enjoyment of property but is not an act of conveying property from one
living person to another. Partition is not a transfer. It is only renouncement of existing rights in common properties
in consideration is only renouncement of existing rights in common properties in consideration of getting exclusive
right and possession over the specific plots. Partition is only a process of mutual renunciation by which common
unspecified rights in larger extents are converted into exclusive right over specific plots.
3.In V. N. Sarin v. Ajit Kr. Poplai ,court observed that
the true effect of partition is that each coparcener gets a specific property in lieu of his undivided right in respect of
the totality of the property of the family'. The Supreme Court in that case was considering the provisions of Rent
Control Act and did not express any opinion on the correctness of certain decisions holding that a partition is a
transfer within the meaning of S. 53. The correct view, it is submitted, is that a partition is not a transfer and
therefore, strictly not governed by the Act, but that many of the provisions of the Act may govern partition as
embodying rules of justice, equity and good conscience.
Partition of property does not amount to 'transfer' as contemplated by S.5. Doctrine of part performance therefore
does apply to partition. Partition is really a process, in and by which a joint enjoyment is transformed into a
enjoyment severally. Each one of the co-sharers had an antecedent title and, therefore, no conveyance is involved in
the process, as the conferment of a new title is not necessary. The doctrine of part performance does not apply to an
unregistered deed of partition.
A partition is possible between two co-owners who may not have absolute or equal rights, but are limited owners. A
document executed in settlement of disputes between two persons who are entitled to the same properties and who
agree to divide the properties amongst themselves is a partition, and not a settlement.
Where a joint family property is subject to mortgage, there is no transfer of ownership and the coparceners, being its
lawful owners, are competent of allot the mortgaged property in an oral partition to any of the coparceners. The
coparceners to whom the mortgaged property is allotted, becomes its absolute owner and is entitled to redeem the
mortgage. Consequently, where the right to redeem is transferred by that coparcener, the transferee is also entitled to
redeem the mortgage.
Property, subject to mortgage can be allotted in an oral partition to a coparcener, particularly when such oral
partition is not going to interfere with the scheme of the mortgage.
Living Person Will
These words exclude transfers by will, for a will operates from the death of the testator. Transfer of share or interest
in a co-operative society to the nominee of its member operating on his death would also be excluded like transfer
by will. When the beneficiary is not a living person, the expression used is the creation of an interest in an unborn
person.
The words 'living person' include a juristic person such as a corporation. A court is not a juristic person.
In present or in future
A transfer of property may take place not only in present, but also in the future, but the property must be existence.
The words 'in present or in future' qualify the word 'conveys', and not the word 'property'. A transfer of property that
is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as
the property comes into existence.
Transfer intervivos; - Transfer between living persons ( both juristic & natural people )
Living person distinguished from Juristic person;
The term 'juristic person' includes a firm, corporation, union, association, or other organization capable of suing and
being sued in a court of law."
A juristic person is a bearer of rights and duties that is not a natural person (that is, not a human being) but which is
given legal personality by the law is a juristic person - for example, a company.
Juristic persons are entities other than human beings on which the law bestows legal subjectivity. This does not
mean that they assume the guise of natural persons, but that the law for the sake of economic or social expediency
recognises a thing or community or group of persons as having legal personality and therefore the capacity to be the
bearer of rights and duties and the ability to participate in the life of the law in its own name. They are called juristic
persons because it is the law that accords them the status, in certain respects at least, of persons: they are artificial
persons created by the law.
God is a juristic person - property transferred to God governed by relevant religious or charitable endowment Acts
Natural Person
A natural person is a human being.
He has characteristics of the power of Thought speech and choice.
A natural person is a real and living person.
Slaves were also natural persons.
The layman does not recognize idiot, company, corporation, idol etc. as persons.
The only natural persons are human beings.
He is also a legal person.
Natural persons perform their functions and also perform the function of legal persons.
Man is the only natural person.
There is no such division in natural person.
Natural person can live for a limited period. i.e. he cannot live more than 100 years.
Legal Person
Legal person is being, real or imaginary.
A legal person is any being whom the law regards as capable of rights or duties.
Legal persons are also termed fictitious, juristic, artificial or moral.
In older law, slaves were not recognized as persons.
In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as legal persons.
There are several categories of legal persons recognized by law.
Although all legal personality involves personification, the converse is not true.
The legal persons perform their functions through natural persons only.
There are different varieties of legal persons, viz. Corporations, Companies, Universities, President, Societies,
Municipalities,
Grama panchayats, etc.
There are two classes of corporations corporation sole and corporation aggregate.
Legal person can live more than 100 years. Example: (a) the post of American President is a corporation, which
was created some three hundred years ago, and still it is continuing. (b) East India Company was established in
sixteenth century in London, and now still is in existence.
Status of partition of JF property; - Partition is not a transfer of property - because nothing new is obtained by cosharer on partition - his specific share vested in him earlier is simply separated
4. V.N. Sarin v Ajit Kumar Poplai, AIR 1966, SC 432: (2006) 1 SCR 349
On Partition a coparcener gives eviction notice to tenant who was inducted before partition - tenants contests on the
same on the basis that the landlord acquired the premises through transfer - hence it comes u/s 14(6) of Delhi Rent
Control Act which doesn't entitle landlord to demand possession till 5yrs - SC held that a partition is not transfer of
property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the
other co-sharer or co-sharers hence S 14(6) DRCA doesn't apply here
5.Kenneth Solomon v Dan Singh Bawa, AIR 1986 Del 1
[Bequeathing of tenancy rights by a tenant under his Will to his heirs amounts to 'parting with possession' though
such parting of possession does not amt to transfer within the meaning of Sec 5 TP Act] - dispute related to tenancy
rights of the tenant which he had bequeathed under his Will in favor of his heirs - on the death the beneficiaries
under the Will took possession of the tenanted premises as the contract of the lease was still subsisting. The landlord
filed a suit for eviction on the ground that this transfer of the premises amounted to violation of the provisions of the
Delhi RCA, as the tenant had parted with the possession of the premises in dispute without the permission of the
landlord - Issue was whether a person parts with possession of the property(u/ DRCA) through a devise of Will &
not whether such parting amounts to transfer within meaning of S5 TPA - Observation & Decision - The lessee by
her act of bequeathing the tenancy rights by means of the Will in favor of the appellant had parted with possession.
Thus a violation of the lease agreement had taken place - the landlord was therefore entitled to claim eviction
7. N. Ramaiah vs Nagaraj S, AIR 2001 Kant. 395 (A will does not amt to transfer within meaning of S5 TPA )
Issues
- whether bequest of a prop under a Will is a transfer of property
- whether direction to a party to maintain status quo in regard to a property, prohibits him from making a
testamentary disposition(via Will) & whether a Will made during the operation of an order of status quo regarding a
property is void & non est in so far as the bequest relating to such property. - claim over property by A named in will
& B succeeding as legal heir - A files suit of temporary injunction against B to stop from alienation - Judge passes
status quo - B dies bequeathing the property to C in her Will - TC Judge holds that Will is against the status quo
order - HC reversed TC Judge contention - held will does not amount to transfer as per TPA and is governed by
testamentary succession laws