Professional Documents
Culture Documents
Immovable properties
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Definition of Immovable PropertiesSection 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 TPThere are four meaning of Land in TP1.
2.
3.
4.
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.
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Q-
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AThe 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 attachedPerumal 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.
2.
3.
4.
Benefits to arise out of landApart 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 earthS.3 defines the expression attached to the earth- as including1.
2.
3.
4.
Things rooted in the earthIncludes 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 earthIncludes 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 imbedded3 | Page
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 buildingIf 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 properties1.
2.
3.
4.
5.
6.
Right to worship.
A royalty.
A decree for sale of immovable property.
A decree for arrears of rent.
A right to recover maintenance allowance.
A machinery which is not permanently attached to the earth.
Government promissory notes.
Standing timber, growing crops, and grass.
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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 vivosLiving or Natural person and Artificial Person ( Law existence, company).
Conveys- transfer.
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SynopsisDefinition
An act by which,
A living person,
Conveys,
In present or future,
Property,
To another living person.
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
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Transferee by virtue of which the transferee gets the new title or interest
is called the conveys.
EmpA -------------------- Make (Sale/Gift/Moorgate etc)
get the new title)
------------
B ( Now
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 SettlementFamily 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
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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.
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Prohibited
Category
outside the
TPA
Civil Law
Some p art gov erned by other personal laws like muslim or H indu Law
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Section -6
General Rule- Every thing Can be Transfer
Exception- Prohibited by S.TPA, any other law in force.
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Legal Incident
Easement , rent,and profits and all
things attached to the earth.
House
Easement the rent accruing after the
transfer, locks, keys,bars, doors and
other things.
Machinery attached to earth
Movable parts of machinery
Debt
Securities (right to resort to some
property for the satisfaction of the debt
Money or other property yielding income Interest or income accruing after the
transfer takes effect.
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Conditional Transfer
Absolute restraint
Partial restraint
Restaint on alienation in compromises
Applicability of S.10
Exception
1. Married woman
2. Lease
CRUX
OF
S.10
PROPERTY
NATIONAL WEALTH
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S11
MODE OF USE
ONLY ABSOLUTE
SECTION 13-
2. Prior interest
3. Absolute interest
NO DIRECT TRANSFERNo transfer can be made directly to an unborn person. Such transfer can be made
by the machinery of trust. Reason behind if a transfer were made directly to an
unborn person, there would be an abeyance of ownership form the date of
transfer till the coming into existence of the unborn person which is void
according to English Common Law.
PRIOR INTEREST
In case the trust is not created , the estate must vest in some person between the
date of the transfer and the coming into existence of the unborn person. In other
words, the interest in favour of an unborn person must always be preceded by a
prior interest in favour of a living person.
Illustrations
I.
A transfer his house to X for life and thereafter to UB (unborn) who is an
unborn son of A.
The transfer of house in favour of UB is valid, here since UB is not in
existence at the date of the transfer, A could not transfer the houser directly
to him. So, A had to make a direct transfer of life interest in favour of X who
is a living person at the date of the transfer. After the death of X the interest
of the house shall pass on to UB who is the ultimate beneficiary.
ABSOLUTE INTEREST
The entire property must be transferred to the unborn person. It is not permissible
to confer a life-interest on an unborn person. in English Law it is possible to give
an estate to an unborn person for life. But this aspect of Enlish Law was subject ot
a restriction called the rule against double possibilities.
Illustration
I.
A transfer his property to X for his life and thereafter to UB for life X is a
living person at the date of the transfer.
UB is not into existence at the date of transfer so the transfer of life interest
of X is valid. But the transfer of life interest of UB is void because although
the transfer in favour of UB is preceded by a life interest to X but UB himself
has not been given an absolute interest. The result is, therefore that X shall
hold the property during his life but after his death it shall not pass on the
UB but shall revert back to A or ( if A is dead that time) to As legal heirs.
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direction that form the rents of the house B shall pay Rs 500 per months
towards the satisfaction of a debt of Rs on Lac incurred by A. The direction of
the accumulation of income is valid even it continues after the life of A or
expiry of period of 18 years.
2. Raising portions- Portion ordinarily means a part or share which points to
the arising of something our of something less for the benefit of some
children or class of children.
3. Preservation of Property- for the maintenance of property/ preservation
of property, it is allowed.
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POSTPONMENT OF ENJOYMENT
Postponement of enjoyment of property does not mean that the interest of the transferee
is not vested. In a transfer of property, the primary thing is the transfer of interest of title.
Possession of property is secondary.
For ExampleA transfers his property to B to be given to B on Bs attaining the age of 20 years, the
interest of property is vested although the enjoyment of property has been postpone.
However, if B Dies before attaing the age of 20 years the possession and enjoyment of the
property shall go to Bs representatives or legal heirs together with title which B already
had and died having it.
The postponement of property may be postponed till any future date or future event which
is of MUST nature and is bound to happen.
PRIOR INTEREST
Where a prior interest is created in the same transfer there is postponement of the
enjoyment of property. The vesting interest is not postponed.
A transfers property to B for life and then to C the interest of C is vested interest.
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Here C has a vested interest immediately with the transfer was made but his right of
enjoyment is postponed till the life of B, because the death is the future event and must in
nature.
Direction for accumulation of income is valid provided its within the period prescribed in
S17 .Where the property is transferred with such direction the interest of the transferee is
nevertheless vested. In this case also the right of enjoyment has been postponed not the
vesting.
In KOKILAMBAL V/S RAMAN KOLILAMBAL There was a deed of family settlement in which the settler created a limited interest (right
to received the income form rents). The property of the settler was to vest in the settlee
only on death of settler.
SC HeldThe family settlement does not create a vested interest in favour of the settlee
and settle cannot be absolute owner during the life of settlor. Therefore the
settlee cannot succeed the property on the settlors death.
CONDITIONAL LIMITATION
It is the concept of English Law, means upon happen of a particular event the interest
vested in a person shall pass on to another person, S28 of TPA authenticated in India.
A condition limitation does not prevent the vesting of the interest. Rather it is implied that
the interest which had already been vested may be divested and my vest somewhere else.
A transfer his house to B with a condition that if B doest not take possession of this house
within 6 months form the date of the transfer, the house shall belong to C.
The interest of B is a vested interest although it is vested only for these 6 moth and if he
possess the house within 6 month the vesting would be permanent.
NATURE OF VESTED INTEREST
Present fixed right- when a interest is vested, it becomes the property of the
transferee and is u/s 6 transferable by him even before he has obtained possession.
If the transferee dies, his interest vested in hi legal representatives whether or not
he has obtained possession.
Basis
Right of
Enjoyment
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Vested
Immediate rights
Contingent
Merely a future possible rights
accrues
Nature of Event
Heritability
Nature of Title
Effect of Interest
Transferability
Attachment &
Sale in
Execution of
Decreed
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Object of S25- To eliminate the following conditions- if following are the condition then
the transferred would be void.
Impossible conditions
Unlawful / forbidden by law
Impossible performance.
Opposed to public policy
Fraudulent conditions
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Knowledge of the fact that transferor has no authority to transfer the property is
immaterial for applicability of the rule of election.
Benefit confer on the owner of the property
Doctrine says owner must condensate or confers the benefit for his ownership on
the property.
The word Ownership is a wide connotation, it include a person having vested
interest, or contingent interest and also a person who has ever reversionary or
remote interest in the property.
Part of the same transition
This Doctrine only applicable when transfer and benefit a part form the same
transition. Means the benefit and transition are interdependent and inseparable
they form part of the same transition.
OWNERS DUTY
Owner are duty bound to either accept or reject the offer benefits
He has two act in a same capacity means he may accept the benefit in one
capacity and reject the other part of instrument in the same capacity not vise
versa.
Mode of Election
it can be express or implied
owner can express his intention in clear and specific word, once the election has
done it is final and conclusive.
Election is implied when the owner of property having aware of his duty to elect
and accept the benefits. When owner has enjoyed the benefit for two years without
doing any act of refusal or dissent of the transation. When the owner of the
property exhausts or consume the benefits.
Requisition to Elect
This is the special procedure for expediting election, after the expiry of one year, if
the owner of property does not elect, neither confirm his dissents the transation, it
deem to elect in favour of transferee.
Suspension of Election- The election may suspend till the time there are any
legal disability.
Election against transfer- if there is dissent form the professed transferred, the
transferor forfeits his benefit confer to owner.
Difference between English & Indian Law
The thin line between English and India law is the residues (balance).
A professed to gift a House worth Rs 800 to B which belongs to C, and he offers
benefits to C Rs 1000, before election C dies. According to Indian law the residue
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.
Effect of Transation made by Ostensible owner
The general rule of TPA is one who is not the real owner cannot transfer, but this
section is the exception of this rule subject to fulfillments of conditions laid down in
the section.
If a person purchases form a Benamidar / Ostensible owner, the real owner
cannont recover, provided other conditions are fulfilled
A purchased a property on her B, and B acted as his agent or care taker of the
property, B Mortgage the property to C. It was held that Silence of A on mortgage
created by B made B as ostensible owner and hence A cannot deny the mortgage.
Ingredients of S41
Consent of true Owner.
It is one of the important condition, that apparent ownership must have been
created or permitted by the real owner of the property, either by express or
implied consent.
Reasonable Care
it is also important that the transferee before taking effect of any transition he
made reasonable care which a ordinary man do and enquiries to ascertain the
transferor had the power to transfer.
Good Faith
The last condition is the transfer must be in a good faith there should not be any
malafied intentions.
Protection of Bona fide purchaser when disputed land.
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Suit most not be collusive In nature- means there should not be mala fide
intention, means there is no dispute just for the mala fide intention it evolve.
ExceptionA transfer during the pendency of a suit may be sanctioned by the court in which
the suit is pending, provided the order must not obtain fraudulently.
Effect Transfer by Court Order / Involuntary / by Operation of Law
Transferin Samarendra Nath Sinha V/s Krishna Kumar Nag- SC Held
the doctrine of les pendens applies where the sale is made by the order of the
court.
Effect of DoctrineThe transferee is bound by the order of court
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property is that he can recover his money form that property in case the debtor
fails to repay it personally.
Preference to one creditorif there are several creditor, and transfer in favour of one creditor does not amout
to an intention to defeat or delay in other creaditor.
Exp- A , who has taken load from B, C and D, and transfers certain property in
favour of B, it does not mean he is with intent to delay with other creditor.
Transfer is voidable by creditorsThe option remain with creditor to make the transation void, if he deem fit to
continue the transfer the transfer remain valid till.
Burden of proof- the burden of proof lies with creditors.
Transferee in good faith- This section also protect the right of transferee if he
acted in a good faith.
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2. EQ, also gives a right of action against the evictor but S53A, gives no such
rights.
Essentials
1. Written contract for the transfer of immovable property ( Transfer
for consideration, for Movable property, and must be valid
contract)
2. Transferee takes possession of the property under the contract (
the possession must be in furtherance of contract, some act in
furtherance of contract, taking possession is not only the method of
part performance of contract. If the transferee is already in possession of
the property then, after the contract of transfer, he has to do some
further act in part performance of that contract. In order to attached
S53A)
3. The transferee either performed his part or willing to perform.
The section doe not confer any interest or title, just protect the right of
transferee form ejection if the property in his possession.
It is a statutory bar on the transferor that he cannot dispossess the
transferee if he possess the property
section does not give to the transferee any rights of action. It provides merely a
right of defense. It is shield not a sword
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Sale
S-54-Sale is the transfer of ownership, in exchange of price paid, or promises to
paid or part paid or part promise.
When sale made Prior owner distitle and new owner gets the title of the
property
Constituent Transfer of ownership- In sale there must be transfer of absolute
ownership, means ownership with liability.
Money consideration- when ownership is transfer in money consideration
its call sale, the adequacy of consideration is immaterialize. The price may
be paid full, part, immediately or in future.
Essential of Valid Sale
Mode of Sale
Registration of Sale Deed
How sale made- Sale relating only with tangible immovable property, if the value of
property above Rs 100, it must be registered, in case of value of tangible
immovable property less then Rs 100 such transfer may be made either by
registered instrument or transfer of property.
Delivery of property
Deliver of tangible immovable property takes place when buyers takes the
possession of the property.
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Contract OF SALE
Contract + Transfer +
consideration
Immediate / Present
contract shall take palace
if terms settled between
the parties, it may be
noted that in every sale
there is a preceding
contract for sale, upon the
execution of this ,
preceding contract the
sale happened between
the parties. Thus sale
complete in furtherance of
his very contract.
Immediate/ simultaneous
activity
Type
Position in India
Sale deed
Establish law
Remedy
Protected by Law ( In
India)
Right of Purchaser
Establish Right
It can restrain or set aside
the execution of a sale
deed of the same land to
another person.
Time
Part performance
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Future
Some time parties are not
in a position to execute
the Sale Deed at present
but they intend that sale
would take place between
them in future. In order to
have the evidence of their
intention that the property
would sold the contracting
party only and not
anybody else.
Postponed / future/ delay
Nature
Effect
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Nothing
It is merely a document
creating a right to obtain
another documents
namely , dully a executed
sale deed.
S54 clearly says that a
contract for sale does not
itself , create any interest
or charge on the property.
No title or interest in
respect of the property is
therefore created in
favour of purchaser on the
basis of such contract.
Under English LawCreates an equitable
ownership in favour of the
purchaser and the vendor
holds property for him as
a trustee.
Under India Law
Doctrine of equitable
interest is not recognized
in India, so neither Legal
Estate nor the Equitable
Este in favour of the
transferee.
Basis
Considerati
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Sale
Ownership is
Exchange
Ownership is
Gift
Ownership is
on
Interest
Mode
Absolute
Registration of Sale
Deed
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transfer of
ownership of
some other
property
Transfer of
ownership of
money in return
is also the
exchange not the
Sale
Absolute
No registration
require
transfer without
consideration
Absolute
Registration
Required
Sellers Duty
1. To get the
1. Disclosure of
rent and
material defect
profits of the
in the property
property till
if any.
he possess
2. Produce of title
the
deed of the
ownership.
property.
3. Answer relevant
questions,
asked by buyer.
4. Care of property
and title deed
as its own, like
a normal
prudence
person care.
5. Payments of
outgoing till
date of sale.
Buyers Rights
Buyers Duty
1.Buyers charges- In
case the sale does
not take place due to
any reason, buyers
has a right to take
back his payment
made in advance
with interest.
1.Duty of disclosure,
if the seller is
ignorant about his
own right in property.
It is the duty of the
buyer to disclose the
seller that some
material fact can
increase the cost of
the property in future.
2.Payment of price. To
pay the agreed
payment/ price for the
property in the contract
of sale.
After Sale
Seller Rights
1.Sallers Lien or
charge-
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Sellers Duty
1. Giving
possession of the
property
2. Convent for title.
3. Delivery of the
title deed.
Buyers Rights
Buyers Duty
1.Bear the loss to
1. Enjoy all the
rights arising out of property.
2.To pay the out
the property
goings on property.
estate even before the completion of sale, in return he also acquire the lie on the
property from the date of contract, subject to price unpaid. In India contract of sale
does not given any interest in the property, the charge is created only after the
conveyance. In India the charge is created by Law not by equity.
Marshalling- S56
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S58- Mortgages
S58(a) Transferring LIMITED INTEREST of property for taking Loans.
Where a loan is secured against any immovable property is called Mortgage, and
when it secured against any movable property its called pledge.
It is a security against loan on the basis of any immovable property
Mortgagee= Who gives loan against property.
Mortgagor= Who Takes Loans against property.
Loan under mortgage= Mortgage money.
Instrument/ Deed of Transfer of Interest= mortgage Deed
Essential of Mortgage
1. There must be transfer of Limited Interest
2. Interest transferred against any specific immovable property.
3. Purpose of transfer must be to secure payment of any debt, or performance
of an engagement which may give rise to a pecuniary liability.
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