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Transfer of Property Act 1882

Introduction
A property, movable or immovable, is transferred from one
person to another under various different situations and
circumstances and for different values.
The transfer may be a gift, an inheritance or an asset acquired
by paying full value.
Transfer of property is a Concurrent Subject (Entry 6 of List III
(Concurrent List) of Seventh Schedule to Constitution).
When a movable property is transferred inter-vivos (between
two living persons), Sales of Goods Act, 1930 comes into play.
When an immovable property is transferred from living person to
living person(s), the Transfer of Property Act, 1882 comes into
play.
In case, the property is transferred from a dead person to a
living person(s), the law applied will be the Law of succession.
Should a person die without leaving a will (intestate), the law of
intestate succession is applicable and in cases where a person
dies leaving a will, the law of testamentary succession is
applicable.

The Transfer of Property Act, 1882 mainly
deals with transfer of immovable property.
It does not apply to transfers by the
operation of law such as transfer of
immovable property necessitated by Order
of Court for insolvency or forfeiture among
others.
The 137 sections contained within have
been divided into 8 chapters.
Interestingly, nowhere does the Act define
What is a transfer of property. But it does
define transfer as a standalone in Section
5.


OBJECTIVES


a) As per the preamble of the Act, the T P Act, 1882 is to
amend or regulate the law relating to transfer of property
by the acts of the parties.
b) The Act provides a clear, systematic and uniform law for
the transfer of immovable property.
c) The Act completes the Code of Contract since it is an
enacted law for transfers that take place in furtherance of
a contract.
d) With provision for inter-vivos transfers, the T P Act,
1882 provides a law parallel to the existing laws of
testamentary and intestate transfers.
e) The Act is not exhaustive and provides scope to apply
the principles of Justice, Equity and Good Conscience if a
particular case is not governed by any provision of law.
scope
Since the T P Act, 1882 is not a complete code of transfer of property; we can say
its scope is limited. The Act does not apply to all the transfers taking place in
India.
a) Limitation on Transfer: The Act applies to transfer by the act of parties and
not by application of law.
b) Territorial Limit: The T P Act, 1882 is a territorial law and its operation
extends to the whole of India except for Punjab
c) Transfer of Immovable Property: The Act mainly deals with transfer of
immovable properties only.
d) Exemption of Muslim Law: In case of a conflict between the T P Act, 1882
and rules of Muslim Law, the latter will prevail. Section 2 of the Act does not
affect inconsistent rules of Muslim Law. Thus, a settlement made in perpetuity
for the benefit of descendants of the settler is a valid wakf (charitable gift)
wherein there is an ultimate gift in favor of a charity.
e) Exemption of Rights and Incidents: Certain incidents of a contract or the
essential nature of property are exemption from the operation of the Act by
Section 2. The Act also saves certain property rights. For example, the right to
partition of immovable property is an incident of property but this right is not
affected by the provisions of the T P Act, 1882.


CHANGES MADE BY AMENDMENT ACT OF 1929

a) The Doctrine of Part Performance has been
statutorily recognized and embodied in Section 53A.
b) After amendments, the T P Act, 1882 is in
conformity with provisions of Indian Registration Act.
c) The Act was amended to exclude government
grants from its purview.
d) It provided that the procedural rules regarding
mortgages were to be governed by Civil Procedure
Code.
e) Sections 60A, 63A, 65A and 67A were included
and the stand on mortgages was made clearer. A
mortgagor now had the power to make leases while
a mortgagees right to compensation for necessary
improvements was recognized.

Imp. Concepts
WHAT IS A PROPERTY

The Transfer of Property Act 1882 (TPA) does not
define the word Property.
Many other statues define the word Property on the
basis of their objects, e.g:
Sale of Goods Act, 1930: Property means the general
property in goods, and not merely a special property.
Wealth Tax Act, 1957, Section 4, Expln. C: The
expression Property includes any interest in
property, movable or immovable, the proceeds of sale
thereof and any money or investment for the time
being representing the proceeds of sale thereof and
where the property is converted into any other
property by any method, such other property.
Gift Tax Act, 1958, Section 2(xxii): Property includes
any interest in property, movable or immovable.

IMMOVABLE AND MOVABLE PROPERTY
TPA defines the word Immovable Property as follows:
Immovable Property does not include standing crop, growing
crops or grass.

General Clauses Act 1897 defines the word Immovable Property
as follows:
Immovable Property shall include land, benefits to arise out of land
and things attached to earth, or permanently fastened to anything
attached to earth.

General Clauses Act 1897 defines the word Movable Property as
follows:
Movable Property shall mean any property of every description
except immovable property.

MOVABLE PROPERTY IMMOVABLE PROPERTY
It can be transferred from one
place to another.



Registration is optional as per the
Indian Registration Act, 1908.




The Sales and Central Sales taxes
are applied,
It cannot be transferred without
causing extensive damage to the
property. The damage relates to the
nature of the property

Registration is compulsory under
the Indian Registration Act, 1908 if
the value of the property is more
than Rs. 100. The property needs to
be registered at the Sub-Registrars
office.

The appropriate stamp duty and
the registration fee have to be paid.

The Section 3 reads that immovable property does not
include standing timber, growing crops or grass.
Standing timber refers to trees that are fit for usage in building or
repairs.
Growing crop includes all such vegetables, etc that are solely grown
only for their produce. Grass is referred to as fodder.

Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an
exhaustive definition. It says that Immovable property shall include
land, benefits arising out of land and things attached to the earth, or
permanently fastened to anything attached to the earth. It specifies the
following as immovable property.
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. Jamun 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.

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
WHAT IS INCLUDED IN
IMMOVABLE PROPERTY
WHAT IS NOT INCLUDED IN
IMMOVABLE PROPERTY
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.
1) A right to worship;
2) A copyright;
3) The interest of a partner in a
partnership firm;
4) A right to get maintenance;
5) A right to obtain the specific
performance of an agreement to
sell;
6) Government promissory notes;
and
7) A machinery that is not
permanently attached to the earth
and can be shifted from one Dlace
to another.

ATTESTATION
The term 'attested' in this section means
that a person has signed the document by
way of testimony of the fact that he was it
executed.
It does not import anything more, and
therefore it must be distinguished from
cases where a person signs a document
not merely as a witness to the execution but
also with a view to giving consent to the
transaction.

Attestation is stated in Sec. 3 of the
Transfer of Property Act.
For valid attestation the essential
conditions are:
(1) there must be two attesting
witnesses;
(2) each must have seen the
executants sign or affix his thumb
mark to the
instrument ;
(3) each of the two attesting witnesses
must have signed the instrument in
the
presence of the executants.
Registering officer as witness:
In Abdul Jabhar v. Venkata Sastri,
the Supreme Court has held that
such signatures can only amount to
a valid attestation if the attesting
witnesses had put their signatures
with such animus; the court further
held that ordinarily the registering
officer put his signature in the
performance of his statutory duty
and not with an intention to attest.
NOTICE
The last paragraph of the section 3 states under
what circumstances a person is said to have
notice of a fact.
(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.
Case on constructive notice:
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.
TRANSFER OF PROPERTY
Transfer of Property has been defined in S. 5 of
the Transfer of Property Act meaning 'an act by
which a living person conveys property, in
present or in future to one or more other living
persons and to transfer property is to perform
such act'.

Living person' has been defined to include a
company or association or body of individuals
whether incorporated or not, but nothing herein
contained shall effect any law for the time being
in force relating to the transfer of property to or
by companies, associations or bodies of
individuals.
General Rules
Section 7 .Every person who is competent to contract and entitled to
transferable property, or authorized to dispose of property is competent
to transfer such property
Section 9 A transfer of property may be made without writing in every
case in which a writing is not expressly required by law.
Condition restraining alienation - voidsection 10
2 Exception:
restriction in case of Lease
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.
while an absolute restraint is void, a partial restraint may not be.
Illustration: A and B enter into a sale deed for a piece of land. The terms of the
sale deed provides that the piece of land should be used for the purposes of
starting a factory for the manufacture of jute textiles only. This condition is
invalid. B can enjoy the land in any manner that he chooses and the sale deed
itself continues to be valid.
Restraint to Enjoyment-
Insolvency clause VOID
Section 12 of the Transfer of Property Act provides that where
the property is transferred subject to a condition that makes any
interest in that property cease, either on the insolvency of the
person in whose favour it is created or in case any endeavor is
made by that person to transfer of dispose of the same interest,
then such a condition or limitation is void.
Transfer to an unborn person - Section 13
An interest must be created for the benefit of an unborn person,
that is, a person not in existence at the time of the transfer &
This interest must extend to the whole of the remaining interest
of the transferor, in order to be valid.
Illustration: Asha transfers a property to Bipasha for Bipashas
lifetime, and then to Bipashas unborn first child absolutely. This
transfer would be valid under Section 13 of the Transfer of
Property Act.
Rule Against Perpetuities
doctrine of remoteness-Section 14
The rule against perpetuity, simply, means that all devices shall be
void which tend to create a perpetuity or place property, forever, out
of the reach of the exercise of the power of alienation. So long as
the transferees are living persons, any number of successive estates
can be created.
In other words, it provides that the property cannot be tied for an
indefinite period.
A transfer can be made to ''A'' for life, to ''B'' for life, and then to ''C''
for life, and so on, provided ''A'', ''B'' and ''C'' are all living at the date
of the transfer.
But, if the ultimate beneficiary is someone not in existence at the
date of the transfer, Section 13 requires that the whole residue of the
estate should be transferred to him. If he is not born before the
termination of the last prior estate, the transfer to him fails according
to Section 14. If he is born before the termination of the last prior
estate, he takes the vested interest at birth and possession,
immediately on the termination of the last prior estate.

However, the rule against perpetuities does not require that the
vesting shall take place at the birth of the ultimate beneficiary.
What it does require is that the vesting cannot be delayed, in any
case, beyond his reaching the age of 18 years.
Perpetuity may arise in two ways-
(a) By taking away the power of alienation from the transferor
(b) By creating a remote interest in the future property.
Illustration: Akshay transfers a property to Bipasha for life and
then to her unborn child on attaining 21 years of age. Here, the
transfer would be bad for violating the rule against perpetuity.
The transfer was valid for Bipashas life interest. Further, it
vested the property in the unborn child absolutely. However, the
property would vest in him only on attaining 21 years of age, that
is, 3 years after the age of majority.
This would be bad in India where the perpetuity period cannot
extend beyond the majority of the unborn person.
Exemption under Section 18: The restrictions in sections 14, 16 and
17 shall not apply in the case of a transfer of property for the benefit of
the public in the advancement of religion, knowledge, commerce, health,
safety or any other object beneficial to mankind.
Class Transfers:
According to Section 15 of the Act, if a transfer is made in
favour of a class and, it fails to take effect in favour of one or
more persons in that class due to the reasons, stated in section
13 and 14 of the Act, the transfer, in favour of the rest of the
people in the class, does not fail. Thus, the rest of the people of
the class will still be able to get such property.
Section 16 of the Transfer of Property Act provides further that if
an interest should fail entirely by the operation of Sections 13
and 14, then any interest that is created subsequent to such a
failed interest must also fail.
Illustration:
Anthony transfers property to Brutus for life and then to Brutuss
sons who attain the age of 21 years and in default of that to
Ceaser absolutely. At the time of the transfer Brutus has no
sons. In such a case, the transfer to Brutuss son fails for
violating the rule against perpetuity. Therefore, the transfer
would be void as to Ceaser as well under Section 16 of the
Transfer of Property Act.
Accumulation of Income:
The terms of transfer can direct that income, arising from the
property, must be accumulated.
However, Section 17of the Act provides that, if the period for
which such accumulation is to be done exceeds the following:-
(i)The life of the transferor, or
(ii) A period of eighteen years from the date of transfer;
such direction will be void to the extent to which the period
exceeds rather than the period mentioned above.
At the end of such period, the income is to be disposed of as if
the period that is directed has elapsed.
However, this provision shall not affect any direction for
accumulation for the following purposes:-
the payment of the debts of the transferor or any other person, taking any
interest under the transferor; or
the provision of portions for children or a remoter issue of the transferor or, of
any other person, taking any interest under the transfer; or
the preservation or maintenance of the transferred, property and, such
direction may be made accordingly.


Permissible period for Accumulation is as
per law:
i) Life of the transferor; or
ii) Period of 18 years, whichever is longer. Any
condition beyond this period is void and not
operative. The direction can be for the whole or
part of the income.
Illustration
X transfers his property to Z with a direction
that the income of the said properties shall
accumulate during Xs life and shall be given
to M. The direction here is valid only up to
the life of Z and not after his death.
Vested and Contingent Interests
Sections 19 to 23
In a transfer, when an interest is created in favour of
a person without specifying the time in which it is to
take effect, or specifying that it shall take effect on the
happening of an event which is certain to happen,
such an interest is said to be vested unless the terms
of the transfer indicate a contrary intention.
A gift to ''A'' on the death ''B'' creates a vested
interest in A, even during B''s lifetime, for there is
nothing more certain than his death. But, a gift to A
on the marriage of B creates, only, a contingent
interest, for, B may never marry; but, that contingent
interest becomes vested if and when B marries.
where on a transfer of property an interest 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 does not happen
, the person acquires a contingent interest in the property.
Such interest becomes a vested interest under these two
circumstances:
In case where on a transfer of property, an interest is created in favour of a
person to take effect only on the happening of a specified uncertain event, then
on the happening of the event.
In case where on a transfer of property an interest is created in favour of a
person to take effect only on the not happening of a specified uncertain event,
then when the happening of the event becomes impossible. The not happening
of the event should become absolutely certain, beyond doubt.
For example, if A's property is to be transferred to C in case A and
B die before the age of 18. In such a case, C has a contingent
interest in the property until A and B die under the age of 18. An
interest would be contingent , when some contingency is to
happen before the person is qualified to take the possession of
the property.
Transfer contingent on happening of specified uncertain
event- Void if event doesnt happens in time stipulated

Distinction between vested and contingent
interest
A contingent interest is inalienable. On the other hand, vested interest is
heritable and transferable.
A contingent interest depends solely upon the fulfilment of a condition, so
that in case of non-fulfilment of the condition, the interest may fall
thorough. On the other hand, a vested interest does not depend upon the
fulfilment of any conditions and takes effect from the date of the transfer
of property.
In case of a contingent interest there is no present right. However, there is
a promise for giving one and is altogether dependent upon the fulfilment
of the condition. As against this, in case of a vested interest, there is a
present and immediate right. Only its use is postponed.
In case of a contingent interest, the transferee takes an interest of a
contingent nature, which may be defeated by reason of non-fulfilment of
the precedent conditions. This is not the case in case of a vested interest.
It is to be noted that where, under a transfer of property, a person
becomes entitled to an interest in the property 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 to be
applied for his benefit, then such interest is not contingent interest.
SPES SUCCESSIONIS
Sec. 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.

The things referred to in this clauses as non-transferable are :
(1) The chance of an heir succeeding to an estate,
(2) The chance of a relation obtaining a legacy (a gift by will)
on the death of a kinsman, and
(3) any other mere possibility of a like nature.
Illustration
A has a wife B and a daughter C. C in consideration of Rs. 1,000
paid to her by A, executes a release of her right to share in the
inheritance to A's property. A dies and C claims her one-third
share in the inheritance. B resists the claim and sets up the
release signed by C. The release is no defence, for it is a
transfer of a spes successions, and C is entitled to her one-third
share but is bound to bring into account the Rs. 1,000 received
from her father.
Chance of an heir apparent.
A mere possibility of an heir succeeding to an estate
is excluded from the category of transferable property.
The prohibition enacted in this clause is based on
public policy, namely, that if these transfers were
allowed speculators would purchase the chance of
succession from possible heirs and there would be
increase in speculative litigations.
Spes Successionis and contingent interest
Doctrine Of Election
Sec 35 of Transfer Of Property Act
1882 incorporates the Doctrine Of Election.
Election means choosing between
two inconsistent or alternative rights. Under any
instrument if two rights are conferred on a person in
such a manner that one right is in lieu of the other,
he is bound to elect only one of them.

The Doctrine Of Election is based on Equitable
Principle under which a person may not be
allowed to approve that part of an instrument
which is beneficial to him and disapprove its that
part which goes against him. No one can
approbate and reprobate at the same time which
means where a person takes some benefit under
a deed or instrument, he must also bear
its burden.
Section 35 of TP Act:
Sec 35 of the Act makes following provisions in
respect of the rule of election-
i) where a person profess to transfer a property
not his own.
ii) in lieu of his transfer, the transferor confers
certain benefits upon the owner of the property.
iii) the two things, i.e. transfer of property and
conferring of the benefit forms part of the
same instrument.
Then, the owner of property is bound to elect
either to take the benefit and transfer his
property or to retain his property and give up the
benefit.

Part of the same transaction-
The rule of election operates only when
the transfer and the benefit form part
of the same transaction. By same
transaction is meant that the transfer of
property is to be made evidently only in
lieu of the benefit.
Thus where the benefit and transfer are
interdependent and inseparable, they form
part of the same transaction.
Owners duty to elect-
If a property is professed to be transferred and
in the same transaction some benefit is given to
the owner of property, then such owner is under
a duty to elect.
By his election he may either accept the
instrument with all its contents or reject it
altogether.
He has no option to accept only the beneficial
part of instrument.
Where he elects to accept the instrument, he is
entitled to get the benefit, but he is bound to
transfer his property.
If he elects to reject the instrument he cannot
claim benefit, but he may retain his property.
Modes of election-
Election may be a) Express b) Implied.
a) Express- The owner may express his
intention in clear and specific words. Where
election is express, it is final and
conclusive.
b) Implied- Election is implied when the
owner of property being aware of his duty
to elect and having full knowledge of the
circumstances accepts the benefit. Such
election would mean that he has chosen in
favour of the transaction.
This may also be suspended with person of
disability. Ex Minor may suspend it till
majority.
Feeding The Grant By Estoppel Sec. 43
Transfer of Property Act
The doctrine of Equity that 'equity' treats that as done which
ought to be done' or as a combination of both, but, a statutory
shape having, been given to the principle, it is the section itself
which must ultimately determine its scope and the conditions of
its application.
In order that Section 43 may apply there must obviously have
been a fraudulent or erroneous representation by a person that
he was authorised to transfer immoveable property and he must
have professed to transfer such property, but there is nothing in
the section requiring that the trans-feror should have been aware
of the erroneousness of the representation made by him.
The transferor might have honestly believed in the truth of the
representa-tion that he was authorised to transfer the property
which he professed to transfer, but that would not render the
Section inapplicable.
Contd..
The matter for erroneous transfer is concluded by the
following observations of the Supreme Court in the
case of Tumma Masjid Mercara v. Kodimaniandra
Deviah, AIR 1962 S C 847 :--
It is immaterial whether the transferor acts bona fide
or fraudulently in making the representation. It is only
material to find out whether in fact the transferee has
been misled
The point next to be considered is whether a
transferee is deprived of the benefit of Section 43 if he
is aware of the erroneousness of the representation or
could have discovered its ertoneousness by exercising
reasonable care or pursuing reasonable inquiry.
Section 41. Transfer by ostensible owner
Ostensible owner/Doctrine of Holding out-
Sec 41
Sec 2 (a) of the Benami Transactions
(Prohibition of the Right to Recover the
Property) Act, 1988
Meaning of Benami Transactions
Exceptions
Sec 41 of the Transfer of Property Act
Sec 41 is an exception to the principle
Nemo
dat quod non- habet (No person can
transfer
a better title than he has)
Essential conditions for Sec 41
1. There is transfer of an immovable
property
by ostensible owner with express or
implied
consent of the real owner
2. The transfer is for consideration
3. The transferee has acted in good faith,
and
4. The transferee has exercised
reasonable care in finding out the
transferors power to make the transfer

Ostensible owner:
An ostensible owner is one who has all
the indicia of ownership without being
the real owner. It has been held that the
possession of a manager cannot be
treated as ostensible ownership with the
consent of the real owner. The
occupation of a menial servant does not
constitute ostensible ownership.

Fraudulent Transfers Sec 53

Essential conditions of Fraudulent
Transfers
Transfer of immovable property
Intent to defeat or delay
Fraudulent transfer to defeat or delay
creditors
Transfer is voidable by Creditors
The principle of Section 53 is based on
the rule of justice, equity and good
conscience. The section enumerates
fraudulent transfer.

Every transfer of immovable property, made
with the intent to defeat or delay the
creditors of the transferor, comes into the
category of the fraudulent transfer and
therefore, they are voidable at the option of
the creditors, who are so defeated or
delayed.
Every transfer of immovable property
made, without consideration with intent to
defraud a subsequent transferee, comes
under the category of fraudulent transfer.
Therefore, it is voidable at the option of
such transferee.
In both circumstances, the transfer is
voidable at the option of the person
affected by such fraudulent transfer.
Illustrations:

''A'' obtained a decree against B for the
possession of certain properties and
mesne profits estimated at RS. 10,000.
''B'', a month later, executed a deed of
trust, settling all the property, of which he
was then possessed, on his wife and
children. The settlement was voidable
under Section 53.

Doctrine of part performance Sec
53-A
The necessary conditions are

1) there must be a contract to transfer for consideration any immovable
property;

2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;

3) the writing must be in such words from which the terms necessary to
construe the transfer can be ascertained;

4) the transferee must in part performance of the contract take
possession of the property, or of any part thereof;

5) the transferee must have done some act in furtherance of the
contract; and

6) the transferee must have performed or be willing to perform his part
of the contract.
Cont..
then, notwithstanding that where there is an
instrument of transfer, that the transfer has
not been completed in the manner
prescribed therefore 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 .
Section 53-A is only meant to bring about a bar against
enforcement of rights by a lessor in respect of property of which the
lessee had already taken possession, but does not give any right to
the lessee to claim possession or to claim any other right on the
basis of an unregistered lease.
This section is only available as a defence to a lessee and not as
conferring a right on the basis of which the lessee can claim rights
against the lessor.
Section 53-A affords protection to a transferee on certain
conditions, one of which is that the transferee has performed or is
willing to perform his part of the contract. Where one party to a
contract repudiates the contract, the other party to the contract who
claims specific performance of the contract is absolved from his
obligation to perform the contract.
Further to qualify for the protection of the doctrine of part
performance, it must be shown that there is an agreement to
transfer of immovable property for consideration and the contract is
evidenced by a writing signed by the person sought to be bound by
it and from which the terms necessary to constitute the transfer can
be ascertained with reasonable certainty.
Contd..
Section 53-A requires that the person claiming the benefit of
part performance must always be shown to be ready and
willing to perform his part of the contract.
The section cannot be used by the transferee to have his title
to the property declared or to seek recovery of possession of
the property. The doctrine of part-performance is available to
retain the possession and not to get the possession. The
benefit of the section to a large number of cases where the
transferee may not be able to sustain his possession as
against his transferor.
Validity of part performance. --
Where bona fide purchasers for value
had no knowledge of defect in title of
seller, held that such purchasers will be
protected by Section 53-A and sale deed
in their favour could not be declared as
void.
Sale:
The Transfer of Property Act defines
'sale' as the transfer of Ownership of
immovable property in exchange for a
price paid or promised or part-paid or
part-promised.
The difference between a sale and an
exchange is this that, in the former, the
price is paid in money, while in the latter,
it is paid in goods, by way of barter. [CIT
v. Motor and General Stores (P.) Ltd.
AIR 1968 SC 200]

What does the Agreement for
Sale normally contain
A full description of the property which is agreed to be sold,
Full names of the owners and the purchasers,
Their addresses,
The exact price of the deal,
The manner of payment of the price; whether in one lot or in installments,
Description regarding the owner's title thereto,
The owners' obligation to satisfy the purchasers, in respect of the
owner's title to the property and his right to sell the same,
The time within which the transaction is to be completed,
Provisions for payment of the Stamp Duty and registration charges i.e.
whether Stamp Duty is to be paid only by the buyer, or whether it is to be
shared between the seller and the buyer and
Ultimately, execution and registration of the sale deed.


A sale has to be effected only by a registered deed,
and not otherwise, in the following cases:

In case of tangible, immovable property
of which the value is rupees one hundred
or more;
In the case of reversion; and
In the case of intangible things;
A sale can be effected, even without a
registration deed, in the case of tangible
immovable property, of a value less than
one hundred rupees (section 54 of the
Transfer of Property Act)

What is meant by "lease"?
It is a type of transfer of an interest in
immovable property.
Section 105 of the Transfer of Property Act,
1880 defines a lease as:
"A lease of immovable property is a transfer
of a right to enjoy such property, made for
a certain time, expressed or implied, or in
perpetuity, in consideration of a price, paid
or promised, or of money, a share of crops,
service or any other thing of value, to be
rendered, periodically or on specified
occasions to the transferor by the
transferee, who accepts the transfer on
such terms."

Subject Matter of lease:
Any immovable property can be the
subject matter of a lease. e.g. a
furnished dwelling house, floor
premises, a residential unit, a shopping
unit, industrial premises/ structure/ gala,
space for advertisement, the right to
work mines and extract minerals,
plantations, orchards etc.


The main provisions are contained in Sec.105 to 117 of the
Transfer of Property Act, 1882. These provisions define "lease",
how leases are made, the rights and liabilities of a Lessor, the
rights and liabilities of a Lessee, the rights of the lessors
transferee, the circumstances in which leases are determined
i.e. terminated and the effect of surrender and forfeiture of a
lease on an under-lease (i.e. a further lease of leased property).
The Transfer of Property Act does not apply to leases of
agricultural land. Such leases are governed by the laws passed
by the State Legislatures. These laws vary from state to state.
Leases of agricultural land are subject to various restrictions and
also subject to the approvals of the prescribed Revenue
authorities.


Failure of registration of lease
The failure to register a Deed of Lease
has the following consequences:-
it does not create a valid lease of any
immovable property comprised
therein.
such a deed cannot be received as
evidence of any transaction, affecting
such property.

What is a sub-lease?
A lease may be granted by a person,
who himself is a lessee. The second
lease is called a sub-lease, under-lease
or a derivative lease. When a lessee
grants to another person a lease of the
property held by himself as a. lessee, it
becomes a sub-lease. With respect to
the second lease, the original lessee
becomes the sub-leassor and the one,
who is granted the lease, is called the
sub-lessee.

Lease & Sale:
A sale is an absolute transfer of property. A
lease is a partial or limited transfer of
property. In a lease, there is a transfer of
the right to enjoy such property. Thus, in
case of a lease, there is a separation
between ownership and possession.
Lease could be for any fixed period of time
or it could be for perpetuity.
The person who gives the property on
lease is called a "Lessor" and the person
who takes the lease is called a "Lessee".


Lease & Licence:
A cardinal distinction between a lease
and a licence is that in a lease, there is a
transfer of interest in the leased property
whereas, in the case of a licence, there
is no such transfer of any interest in the
property, although the licensee may have
a right to occupy the subject property,
e.g.land.

(b) A mere right of re-entry for breach of a condition subsequent
cannot be transferred to anyone 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.
(dd) A right to future maintenance, in whatsoever manner arising,
secured or determined, cannot be transferred.
(e) A mere right to sue 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, naval, air-force and civil
pensioners of the government and political pensions cannot be
transferred.
(h) No transfer can be made
(1) opposed to the nature of the interest affected thereby
(2) for an unlawful object or consideration
(3) to a person legally disqualified to be transferee.

MORTGAGE

Section 58 of TPA:
Mortgage is transfer of interest in any specific immovable
property for the purpose of securing payment of money
advanced or to be advanced by way of a loan, any existing or
future debit, etc. The person who mortgages the property is
called as Mortgagor and the person in whose favour
property is being mortgaged is called the Mortgagee and the
instrument by which mortgage is created is called the
Mortgage Deed.

TYPES OF MORTGAGES

SIMPLE MORTGAGE
In simple mortgage the mortgager without delivering the
possession of the mortgaged property binds himself to pay the
loan and agree that in the event of his failure to repay the
amount, the mortgagee shall have the right to cause the
mortgaged property to be sold and apply the proceeds against
the loan.
MORTGAGE BY CONDITIONAL SALE
In mortgage by conditional sale, the mortgagor ostensibly
sells the property with condition that on default of payment of
loan, the sale shall become absolute or in the event of
repayment of loan, the sale shall become void and thereafter
the buyer (mortgagee) shall re-transfer the property to the
seller (mortgagor).
USUFRUCTUARY MORTGAGE
In Ususructuary Mortgage, the mortgagor delivers possession
of the mortgaged property to the mortgagee and authorizes
him to retain such possession until payment of loan. The
Mortgagee is authorized to receive the rent and profits
accruing from the mortgaged property.

TYPES OF MORTGAGES
..continued.
ENGLISH MORTGAGE
Where the mortgagor binds himself to repay the loan on
certain date and transfers the mortgaged property
absolutely to the mortgagee but subject to a proviso that
he re-transfers it to the mortgagor upon payment of
mortgaged money as agreed.
MORTGAGE BY DEPOSIT OF TITLE DOCUMENTS
As name itself indicates, to create a mortgage, a person
delivers to the creditor, the documents of title to
immovable property with intent to create security thereon.
ANOMALOUS MORTGAGE
An Anomalous Mortgage is a mortgage which does not fall
in any of the aforesaid category but is a mixture of any two
or more aforesaid mortgages.




MOST COMMON FORMS OF MORTGAGES

Simple Mortgage (which is also
known as Registered Mortgage) and

Mortgage By Deposit Of Title
Documents

MORTGAGE BY DEPOSIT OF TITLE DOCUMENTS
Any person in any of the notified towns can deliver to the Bank
documents of title to the immovable property with intent to create
security thereon.

Before accepting the title documents, Bank needs to ensure that :-
That the title documents being deposited are necessarily evidencing
the title of the property.
The title documents are being deposited in a town which is notified
by the State Government though the property may be situated
somewhere else, may be in a town not so notified.
Original title documents are being deposited with intent to create
equitable mortgage and not for safe custody.
The intention to create equitable mortgage is to secure payment for
a debt.

DEFINITION
Section 22
Transfer
Movable or immovable
property
Without consideration
One person to another
Accepted by the other
GIFT-SECTION 122 TO 129

Essentials
Donor & Donee
Subject matter of a
gift
Interest created by
the donor
Free consent
Acceptance
Without consideration
Section 123: transfer how affected
Movable property
Registered instrument
signed by donor

Attestation by two
witnesses

Immovable property
Registered instrument
signed by donor or;

By delivery
Section 124: gift of existing &
future property
Must be of
existing property

Cannot be of
future property


Section 125: gift to several of
whom one does not accept
Gift of a thing

To two or more donees

One does not accept

Void only to extent of
those who have not
accepted

Section 126: when gift may be
revoked
Donor and Donee
agree on
happening of an
event
No depended on
the will of Donor
Gift shall be
revoked
Donor and Donee
agree on
happening of an
event
Depended upon
the will of Donor
Gift shall be void
Section 127: Onerous Gifts
Single transfer:
several things: same person
One thing burdened by
obligation
Others no burdened
Either acceptance of
whole transfer or
rejection of whole
transfer
Separate transfers: several
things: same person
One thing burdened by
obligation
Others not burdened
Liberty to reject one or
accept others
Section 128: Universal Donee
Gift consisting donors
whole property

Donee personally liable

for all debts due

At the time of gift deed

Section 129: saving of donation
mortis causa & muhammadan law
Essentials
Movable property
Contemplation to death
Suffering from illness
Immediate apprehension
of death
Possession delivered to
Donee
Gift void if Donee recovers

Transfer of Actionable Claims

An actionable claim is a claim to any debt or
to any beneficial interest in movable
property.
Under the Transfer of Property Act, an actionable Claim
excludes the claims to such debts as are secured by
mortgage, hypothecation or pledge of immovable or
movable and the claims to any beneficial interest in any
movable property that is in the actual or constructive
possession of the Claimants.

Examples of "Actionable Claims"
The benefit of a contract giving an option to purchase the land;
Claim for arrears of rent;
Claim for rent to fall due in future;
The benefit of executory contract for the purchase of goods;
An option to repurchase the properties sold;
An endorsement on the back of a contract for the purchase of goods by the
purchaser that he had sold all his rights and interest in the contract to a
person named;

Section 130 says that A transfer of an actionable claim has to be
effected only by an execution of an instrument in writing which has
to be signed by the Transferor or his duly authorized agent. It need
not be signed by the Transferee.
Transfer of an Actionable Claim is not required to be registered
with any authority whatsoever.
Section 131 says that Every notice of transfer of an actionable
claim shall be in writing, signed by the transferor or his agent duly
authorised in this behalf, or, in case the transferor refuses to sign,
by the transferee or his agent, and shall state the name and
address of the transferee.
Illustrations
(i) A owes money to B, who transfers the debt to C. B then
demands the debt from A, who, not having received notice of the
transfer, as prescribed in section 131, pays B. The payment is
valid, and C cannot sue A for the debt.
(ii) A effects a policy on his own life with an insurance company
and assigns it to a bank for securing the payment of an existing or
future debt. If A dies, the bank is entitled to receive the amount of
the policy and to sue on it without the concurrence of A's executor,
subject to the proviso in sub-section (1) of section 130 and to
provisions of section 132.