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[EDIT] TPApahujalawacademy /tpaTRANSFER OF PROPERTY ACT (STUDY PLAN)PAHUJA LAW ACADEMYTRANSFER OF PROPERTY ACTScope/ object of this statute 1st understand WHAT IS PROPERTY? Property means anything to which any person may have legal title [LEGAL- means something enforceable by law]Legal title compris...

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TRANSFER OF PROPERTY ACT (STUDY PLAN)

PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT

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MAINS QUESTIONS 1. Explain the meaning of “Transfer of property” under Transfer of property Act. Also discuss what can be transferred? 2. Distinguish between movable and immovable property.. 3. Define explain expression “Immovable property” under Transfer of property Act. 4. What do you mean by (Profit a prendre) Explain through case law. . 5. Explain the doctrine of fixture. .

TRANSFER OF PROPERTY ACT LECTURE-1 STAR FACTS • Act ‘4’ of 1882 • Passed on 17/02/1882 • Came into force on 1st July 1882 [Trick to remember] Property ——- (land) • Signed by Lord Rippon • Transfer of property is a subject in “concurrent list” of 7th schedule of Constitution of India as [ENTRY 6 OF LIST III] Except That relating to agricultural land C is a state subject and the same is [ENTRY 18 LIST II] FOR understanding PREAMBLE OR

Scope/ object of this statute 1st understand WHAT IS PROPERTY? Property means anything to which any person may have legal title [LEGAL- means something enforceable by law]Legal title comprises of Bundle of Rights likewise ownership is nothing but Bundle of Rights which comprises • Right to Sale • Right to possess • Right to enjoyment etc. Following four factors will decide as to which statute will govern the transaction. These are

The preamble of the Transfer of property Act, 1882 provides that it is expedient to define and amend the law relating to transfer of property by act of parties. By summarizing this we can arrive at the conclusion that T.P. Act 1882 is an Act to deal with only specified transactions of transfer by Act of parties Since As has been already told that, prior to this enactment, the courts were deciding the matters • By referring English Law on real properties • Customary Laws & • Justice, equity, good conscience and fair play. Thus The laws laid down so far were amended by this act and certain new provisions were incorporated. This preamble now is where as it is expedient to define and amend Certain parts of the law relating to transfer of property by Act of parties T.P. Act 1882 is supplemental to:• Indian Registration Act 1908 • Indian Contract Act 1872

THUS From the above discussion we can safely infere that the PROVISIONS OF T.P. ACT are NOT EXHAUSTIVE AND , This Act deals with transfer by Act of parties i.e. by living persons ,which is also known as inter-vivos transfer. Living persons—for the purpose of this Act Includes—[i.e. inclusive definition]

BUT Laws governing such transfers to or by such company, associated body shall prevail upon the provisions of this law. NOW Let us understand basic scheme of the Act if helps • To understand the structure of Act • To memorise sections • To comprehend the concept of the Act.

Section 5 of TP Act 1882, defines – An Act by which • a living person • conveys property • to —one or more living persons or —himself or —himself and one or more living persons living persons for purposes of this act includes :• individual • company • association or • body of individual either incorporated or not Evident from the above definition

A person need not be an owner of the property Thus, as per section 7 Persons competent to transfer are :• persons competent to contract and • entitled to transferable property or authorize to dispose of transferable property not his own. The Transfer once done is operable forthwith in the absence of any express or implied contract otherwise. DEFINITION CLAUSE 1. Immovable property 2. Instrument 3. Attested 4. Registered 5. Attached to the earth 6. Actionable claims 7. A person is said to have notice.

Instrument means a legal document. Where a property is transferred through any document is called instrument. Section 3 of the Act defines instrument as a non- testamentary instrument. it clarifies that the Act excludes testamentary instruments. Registered means • Registered in any part of the territories to which TP Act extends, under the law regulating registration of documents in those territories

Immovable Property Defined in Para I of section 3 but the definition is neither comprehensive nor exhaustive and is merely negative definition and merely provides :-Immovable property does not include • Standing timber • Growing crop and • Growing Grass Term immovable property is also defined u/S- 2(6) of Registration Act, 1908 –< immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. S- 3(26) of General Clauses Act, 1897 – “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. Thus, holistic and harmonious construction of all the three definitions the term Immovable property includes :1) Land, 2) benefits arising out of land (profit a prendre) & 3) Things attached to the earth Attached to earth has been defined in para V of section 3 of TP Act

Benefit to arise out of earth :Is in peri materia with “Profits a prendre” in English law Prendre means TO TAKE (a French verb) The phrase “benefits arising out of land “ means profits derived from land without having any substantial control over the land. it is also known as “profit a prendere”. Ordinarily / in the absence of any intention to the contrary, all the benefits arising out of land stands transferred to the transferee, forthwith. Illustration :- 1. X sells his land to Y but defers the transfer of possession to another one year so as to allow the benefits of the trees standing and growing thereon. Illustration :- 2. X sells a forest to Y, the trees, rivers, minerals etc,. forming part of the land will go with it forthwith in the absence of any express contract to the contrary or by necessary implication. Case Law: Ananda behera vs. State of Orissa: (AIR 1956 SC 17) Held : Right to catch fish from chilka lake was held to be an interest in immovable property being benefit arising out of land. Shanta bai vs. State of Bombay

(AIR 1959 SC 532) Held : Right to fell, cut and collect standing timber from the trees in various stages of their growth and extending over a period of 12 years was held to be an interest in an immovable property. State of Orissa vs. Titaghur paper mills company limited Things attached to earth:– Is in peri meteria with “doctrine of fixture”– And means :• Things rooted in earth • Things imbedded in earth or • Things attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is so attached. Thus, the question of nature of property is a mix question of fact and law and can be determined on the basis of – • Intention, object and purpose of the party attaching the property • Duration of attachment • Degree of attachment • Mode of attachment And is known as doctrine of fixtures and is based on the maxim “quic quid plantature solo, solo credit” which means whatever planted to soil belongs to soil. Case law: On the basis intention, duration and purpose Bamdev Panigrahi vs. Manorama Raj (AIR 1974 AP 226) Touring talkie case. Duncans industries limited vs. State of UP (2000) 1 SCC 633

Fertilizer business case. Sirpur parper mills limited vs. CCE (1998) 1 SCC 400 Notice Para VII of interpretation clause that is section 3 of TP Act deals with notice Notice means:Knowledge of a fact Significance :In law knowledge of a fact affects one’s legal rights & liabilities. Types of notice:(i) Actual notice (ii) Constructive notice (1) Actual notice means and express notice and is a matter of fact. It is sufficient to raise the presumption and determine the rights and liabilities of the party having actual notice of material facts. Pre Requisites of Actual notice :• Must be definite information • Information shall be given by the person interested • Information shall be given to the party to the transaction • Information shall be given in the course of same transaction (2) Constructive notice –also known as implied / deemed notice. The doctrine of notice purely based on equity. It’s a mix question of fact and law It is a knowledge with the court impute to the person under the circumstances raising strong presumption. Legal presumption of constructive notice is raised by the court under following five circumstances

(a) Willful abstention from enquiry or search (b) Gross negligence (c) Registration as a notice (d) Actual possession as notice (e) Notice to the agent ( also called as ‘imputed notice’) Llyod banks limited vs. P. E. Guzdar and Company (1929) 56 Calcutta 868 Imperial bank of India vs. U. Raj GYAW (1923) 50 IA 283 Ahamdabad municipal Corporation vs. Haaji Abdul gafoor AIR (1971) SC 1201 Md. Mustafa vs. Haaji Md Issa AIR (1987) Patna V

PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT PRELIMINARY QUESTIONS 1. Immovable property does not include standing timber: (a) True (b) False (c) Till it is rooted in the earth. (d) Only the branches of timber does not include in immovable property. 2. A sheesham tree is: (a) Movable property. (b) Immovable property. (C) Both movable and immovable property. (d) Depend

3. “Standing timber-comes under the definition of ‘movable property, therefore; ‘bamboo’ would not come under the definition of immovable property”. This was laid down in: (a) State of Orrisa v Titagarh Paper Mills Ltd. (b) Md. Afzal v Qasim (c) Rajenara v Shanta Singh (d) Nalha Lal v Phoolchanara 4. Which of the following is an immovable property : (a) Standing timber (b) Growing crops (c) Grass (d) Tree bearing fruits 5. Which is not the immoveable property?: (a) A lease of land (b) Growing crops (c) A right of way (d) A life interest in the income of immoveable property 5. Which is not the immoveable property?: (a) A lease of land (b) Growing crops (c) A right of way (d) A life interest in the income of immoveable property 5. Which is not the immoveable property?: (a) A lease of land (b) Growing crops (c) A right of way

(d) A life interest in the income of immoveable property 6. Which of the following does not come under the immovable property’ as per the T. P. Act? (a) Rights relating to lease (b) Easementary rights (c) Right to claim maintenance (d) Sale of a ceiling fan 7. The term “profit a prendre“ means (a) Things imbedded in the earth (b) Things attached to the earth (c) benefit arising out of land (d) all of the above 8. Living person for the purpose of section 5 of the Transfer of Property Act, 1882 means (a) an individual (b) company (c) association (d) all of the above 9. The Transfer of Property Act, 1882 came into force on (a) 1 July 1882 (b) 1 July 1881 (c) 1 September 1882 (d) 1 September 1881 10. ‘Imputed notice’ means (a) actual notice (b) constructive notice

(c) notice to an agent (d) all of the above

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PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT MAINS QUESTIONS 1. A sold a house to B and on that date B executed a separate that if he wished to sell the house, he would not sell it to any other person unless A declines to purchase. Examine the validity of this restraint on alienate.. 2. What do you understand by conditional transfer of property?. 3. What is the difference between section 10 and 11 of the Transfer of property Act?. 4. Under which conditions a direction for accumulation is void? 5. What are the exceptions of the directions of accumulations ?

• Absolute transfer of property be transferred in case of sale, exchange and gift. (Section 10)

1. Muhammad Raza v. abbas bandi Bibi (AIR 1932 PC 158.) A partial restraint is valid and enforceable. A condition restricting the transfer outside the family of the transferor is valid and enforceable. 2. Brahmanand v. Raushni A transferee can transfer his property only in favour of any of his successor was held as an absolute restriction & void. 3. Tagore v. Tagore (1878 Privi Counsel) A transferee can transfer his property only for religious purpose been held as absolute restriction & void (Section 11) • Restraining the mode of the transfer • Transfer must be of absolute interest • Absolute transfer of property be transferred in case of sale, exchange and gift. (Section 12) • Transfer involving the condition that in case of insolvency that in case of insolvency or attempted transfer of the property would be void. • Such condition is VOID but transfer is valid Section 17 – Direction for accumulation

PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT PRELIMINARY QUESTIONS 1. ‘Rule against double possibilities’ was recognized in which one of the following cases?: (a) Girjesh Datt v Datadin. (b) Whitby v Mitcell (c) Ardeshir v Dadabhoy. (d) Sopher v Administrator General of Bengal. 2. ‘Rule against accumulation’ is an important rule of the T. P. Act, laid down in: (a) Sec. 17. (b) Secs. 17-18. (C) Sec. 18.. (d) Secs. 18-20 2. ‘Rule against accumulation’ is an important rule of the T. P. Act, laid down in: (a) Sec. 17. (b) Secs. 17-18. (C) Sec. 18. (d) Secs. 18-20 3. ‘What is the limit of accumulation of income in relation to the transfer of property -: (a) Life of the transferor. (b) A period of 18 years from .the date of the transfer. (C) Both (a) and (b). (d) Only (b).

4. ‘A direction for accumulation of income even beyond the periods stated in Sec. 17 of the T. P. Act is valid if it is for the purpose of: (a) Payment of the debts of the transferor. (b) Provision of portions for children. (C) Transfer beneficial to public, or for the preservation or maintenance of the property transferred. (d) All of the above. 5. ‘Under T. P. Act, a condition absolutely restraining the alienation is: (a) Valid. (b) Void. (C) Voidable. (d) Irregular 6. ‘‘A’ sold a property to ‘B’ on the condition that ‘B’ could not transfer the property without ‘A’s consent (a) The condition is illegal. (b) The condition is legal. (C) The condition is illegal and it completely takes away the power of transfer. (d) None of the above 7. ‘Which of the following conditions amounts to an absolute restraint on alienation of property: (a) A condition that transferee shall not transfer the property by way of gift. (b) A condition that transferee shall not transfer the property for a period of 5 years. (C) A condition that transferee shall not transfer the property during the transferor’s lifetime. (d) A condition that transferee shall not transfer the property to a particular person.

8. A, B and C divided a Joint Family Property and made a settlement that if any of them does not have a successor then he will not sold his portion and leave-it to other relatives: (a) The condition is illegal. (b) The condition is illegal in relation to private property. (C) The condition is illegal in relation to family property. (d) None of the above 9. ‘A’ has certain property. ‘B’ is ‘A’s son and his only heir. Then: (a) B cannot transfer the property during A’s lifetime. (b) B can transfer the property during A’s life time. (C) Both (a) and (b) are incorrect. (d)The T. P. Act does not contain any provision in this regard. 10. A sells a house to B directing B that he cannot reside in it but can use it only as agodown or shop , the condition being (a) Valid. (b) Void. (C) Void, B is entitled to use the house as his residence. (d) Valid, B is entitled to use the house as his residence.

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PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT MAINS QUESTIONS 1. A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives and after the death of the survivor, the eldest son of the intended marriage for life. And after his death for A’s second son. Does the interest so created for the benefit of the eldest son take effect? Decide. 2. What is meant by rule against perpetuity? Illustrate pointing out the distinction between English and Indian Law. 3. A property is given to Anil for life and afterwards to Bimal. Bimal transfer this interest to Chandan, Bimal dies during the life time of Anil. Chandan claims the property? Decide. 4. How a property to an unborn person can be transferred?. 5. What are the exceptions of rule against perpetuity? PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT Transfer for the benefit of unborn person not in existence (Section 13) • No direct transfer to unborn person. A transfer to unborn person can be made in following manner, • Transfer for benefit of unborn person : two rules 1. Prior limited interest must be created in favor of a person in existence at the date of transfer. 2. Further “the whole of the remaining interest” of the transferor in the property must be given to the unborn person i.e. only absolute interest may be given

Leading cases

5. vesting of interest in favor of ultimate beneficiary may be postponed only up to the life or lives of living person plus minority of ultimate beneficiary ; but not beyond that

Why a person desires to make a perpetual transfer? • To attach his name with the property for long time or for always. • To make sure use of property as transferor wants. Exceptions of rule against perpetuity:

1. S- 18 2. Creation of charge 3. Renewal of lease (s-105) 4. Mortgage 5. Personal rights like right to preemption 6. Provision for payment of debt (sec -17) PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT PRELIMINARY QUESTIONS 1. Whether a transfer can be made in favour of an unborn person? (a) Yes by machinery of trust (b) Yes (c) Guardian has got to be appointed first. (d) None of the above 2. Section 13 of T. P. Act deals with: (a) Conditions restraining alienation; (b) Oral transfers (c) Transfer for the benefit of unborn person.. (d) Registration of transfers 3. When does an unborn person acquire vested interest on transfer?> (a) As soon as he is born. (b) On attaining majority. (c) On attaining 21 years. (d) After marriage if female.

4. The ‘Rule against perpetuity is discussed in which section of T. P. Act? (a) Sec 14. (b) Sec15. (c) Sec 13. (d) Sec 17. 5. In transfer of property, law is against perpetuity because: (a) The property will remain tied up forever. (b) There will be no industrial progress. (c) There will be loss to business. (d) All of the above. 6. “The rule against perpetuity applies only in those circumstances where a new interest in immovable property is created.” This was held in:(a) Nafar Chandra v Kailash. (b) Padamanath Ayyar v Sitaram Ayyar. (c) T P Naidu v B. C. Jafferson. (d) Ram Prasad v Ram Mohit. 7. ‘Rule against double possibilities’ was recognized in which one of the following cases? (a) Girjesh Datt v Datadin. (b) Whitby v Mitchell. (c) Ardeshir v Dadabhoy. (d) Sopher v Administrator General of Bengal. 8. The rule against double possibilities has been incorporated under section (a) Section 14 (b) Section 13 (c) Section 12

(d) Section 11 9. The restrictions contained under sections……………………. shall not apply in the case of a transfer of property for the benefit of public in advancement of religion, knowledge, commerce, health, safety, or any other subject beneficial to mankind. (a) 14, 16 and 17 (b) 14, 15 and 16 (c) 13, 14 and 16. (d) 16, 17 and 18 10. Provision for the Contingent and Vested interest has been given under sections ………….. respectively. (a) 19 and 20 (b) 19 and 21 (c) 20 and 21 (d) 21 and 22

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PAHUJA LAW ACADEMY TRANSFER OF PROPERTY ACT MAINS QUESTIONS 1. What do you understand by doctrine of acceleration?. 2. What do you understand by transfer by an ostensible owner?. 3. What is ‘doctrine of election’? State the exceptions of it, if any ? 4. What is “apportionment” ? state the relevant provision under the transfer of property Act ? 5. What do you understand by ‘Feeding grant by Estopple’ ? State the relevant provision under the transfer of property Act. PAHUJA LAW ACADEMY TRANSFER OF...