TRANSFER OF PROPERTY

ACT, 1882
- Khyati Nayak
CONTENT OUTLINE

 Introduction to Transfer of Property Act, 1882

 Concept and Meaning of Property (in alignment with other Statutes)
 Preamble of the Statute and reference to IOS principles

 Basic and Practical Understanding of Theories of Properties, Ownership,

Possession, Right and Interest
 Understanding the jurisprudential aspect of the concept of property, ownership,
possession, right and interest.
Introduction to Transfer of
Property Act, 1882
LAW RELATED TO TRANSFER OF
PROPERTY
 The classic law related to TPA was purely customary before the advent of
British and their active intervention in the Indian Legal system.
 Uncertainty – Due to lack of codification
 1st Law Commission prepared a draft bill in 1870, which was introduced in
legislative assembly in 1877 with some modifications.
 Then it was referred to a select committee which redrafted and referred the
same to 2nd law commission.
 After several redrafts it was passed on 17th Feb 1882 and came into force on
1st July 1882.
 The bill was primarily based on English Law of property.
 Transfer of Property (Amendment) Supplementary Act, 1929.
 THE TRANSFER OF PROPERTY ACT, 1882
ACT NO. 4 OF 1882
 Received Assent – 17th feb 1882
 Came into force – 1st july 1882

 It contains 137 Sections and 8 Chapters.

 Section1
 Short title.— This Act may be called the Transfer of Property Act, 1882.
 Commencement.— It shall come into force on the first day of July, 1882.
 Extent.— It extends in the first instance to the whole of India.
 (except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the
States of, Bombay, Punjab and Delhi.)
Whether Transfer of property is a “Union”
subject or a “State” subject ?
LEGISLATIVE COMPETENCE

 7Th SCHEDULE
 Entery 6 of List III
 Transfer of property other than agricultural land; registration of deeds and
documents.
 Entry 18 of List II
 Land, that is to say, rights in or over land, land tenures including the relation of
landlord and tenant, and the collection of rents; transfer and alienation of agricultural
land; land improvement and agricultural loans; colonization.

 Megha Raj v. Allah Rakhia (1947) FCR 77

 SCOPE OF THE ACT

 Law to define and amend Law relating to Transfer of property by act of parties.

 Transfer of Property: Any transaction which has the effect of conveying any
property or any interest therein from one person to another.

 TRANSFER CAN BE INITIATED BY :

 By effect of Law
 For example : Land Acquisition, succession, Court auction, insolvency
proeedings, Forfeiture etc.
 By Act of Parties
 1. Testamentary
 For example : Will
 2. Inter-vivos transfers (Non testamentary/transfers b/w living persons)
 For example : sale, exchange, mortgage, gift etc.
 WHAT KIND OF TRANSFERS ARE COVERED
UNDER TPA, 1882
 Total : 137 Section & 8 Chapters

1. CHAPTER 1 – Preliminary
2. CHAPTER 2 – Transfer of property by act of parties (Theories/Doctrines)
(Section 5 – 37 & Sec. 38 – Sec. 53 A)
3. CHAPTER 3 – Sale (Sec. 54- 57)
4. CHAPTER 4 – Mortgage (Section 58- 104)
5. CHAPTER 5 – Lease (Sec. 105- 117)

6. CHAPTER 6 – Exchange (Sec. 118-121)

7. CHAPTER 7 – Gift (Sec. 122-124)

8. CHAPTER – Actionable Claim (Section 130- 137)

PREAMBLE OF THE STATUTE, ITS OBJECTIVES,
SCOPE & EXTENT
Introduction to Transfer of Property Act, 1882
 PREAMBLE

 Long-Title— An Act to amend the law relating to

the Transfer of Property by act of Parties.

 Preamble —
WHEREAS it is expedient to define and amend
certain parts of the law relating to the transfer
of property by act of parties.
 The Act is not exhaustive of all kinds of
transfers
 Not exhaustive or a complete code (Apparent from the language in the
preamble itself)
define and amend certain parts
 Covers only inter-vivos transfer.
 Even as to inter-vivos the act is not exhaustive.
 Only deals with Sale, Gift, Exchange, Mortgage and Lease.
 For example – In Khunni Lal v. Govinda
It was held abandonment or release of claim in not transfer under TPA.
 Kalyan Das v Jan biwi (1929) (Equity, Justice or Good Conscience or even
with the help of English Cases until it is prohibited by and statutory provision
in India or expressly covered by TPA.)
 Coverage of the Act

 1. Transfer of property act includes the following types of

conveyances only-
 Sale, Gift, Exchange, Mortgage and Lease.
 2. It includes only “Transfer inter-vivos”.
 3. Transferee must be a living person (Except section 13 –
Transfer for benefit of unborn child.)
 4. The definition of living person is wider than the Natural
Human being. (It includes a company or association or body of
individuals, whether incorporated or not.)
 5.Other laws governing the transfer of property by juristic
persons are not affected by the act.
 WHAT KIND OF TRANSFERS ARE COVERED
UNDER TPA, 1882
 Total : 137 Section & 8 Chapters

I. CHAPTER 1 – Preliminary
II. CHAPTER 2 – Transfer of property by act of parties
III. CHAPTER 3 – Sale
IV. CHAPTER 4 – Mortgage
V. CHAPTER 5 – Lease
VI. CHAPTER 6 – Exchange
VII. CHAPTER 7 – Gift
VIII. CHAPTER – Actionable Claim
 Territorial Extent

Extent.— It extends in the first instance to the whole of India.

 (except the territories which, immediately before the 1st November, 1956, were
comprised in Part B States or in the States of, Bombay, Punjab and Delhi.)
 But this Act or any part thereof may by notification in the Official Gazette be extended
to the whole or any part of [the said territories] by the State Government concerned.
 And any State Government may, from time to time, by notification in the Official
Gazette, exempt, either retrospectively or prospectively, any part of the territories
administered by such State Government from all or any of the following provisions,
namely:—
 Sections 54, paragraphs 2 and 3, 59, 107 and 123
 B States or in the States - Part B State Law Act 1951
 Bombay - 1st January 1893
 Punjab - Gian Chand Sam Chand v Rattan Lal Kishan Kumar (1969)/ Tara Singh V. Kehar Singh (1989)
 Delhi -17th Nov. 1962
2. Repeal of Acts. Saving of certain
enactments, incidents, rights, liabilities,
etc.—
 In the territories to which this Act extends for the time being the enactments
specified in the Schedule hereto annexed shall be repealed to the extent therein
mentioned.
 But nothing herein contained shall he deemed to affect—
 (a) the provisions of any enactment not hereby expressly repealed;
 (b) any terms or incidents of any contract or constitution of property which are
consistent with the provisions of this Act, and are allowed by the law for the time
being in force;
 (c) any right or liability arising out of a legal relation constituted before this Act
comes into force, or any relief in respect of any such right or liability; or (No
retrospective effect)
 (d) save as provided by section 57 and Chapter IV of this Act, (Provision by Court for
incumbrances, and sale freed therefrom)
 any transfer by operation of law or by,
 or in execution of, a decree or order of a Court of competent jurisdiction;
 and nothing in the second Chapter of this Act shall be deemed to affect any rule of
Muhammadan law.
TPA & PERSONAL LAWS

 Muslim Law
 Chapter 2 does not apply in so far as it is contrary to the provisions.
 If there is a rule of Muslim law at variance
 Especially rules regarding Gifts & settlement of property in perpetuity
 Gifts can be orally effected / Generally followed by immediate delivery
 Provisions related to transfer to unborn persons (wakf act)

 Hindu Law
 The Amending Act of 1929
CONCEPT
AND
MEANING OF PROPERTY

Concept of Ownership, Possession, Rights & Interest

Concept and Meaning of Property (in alignment with other Statutes)
WHAT IS PROPERTY ?
 Subject-matter of Ownership. (owned by an individual or jointly by a group of
individuals)

 Something that can be owned

 Something that has some value attached to it.
 Basically, Property signifies some beneficial rights to a thing.

 What are the rights that an owner has in property ?

 Right of Ownership/of having the title of the property
 Exclusive right to possess and enjoy the property
 Exclusive right to alienate the property

These rights are called “interest” in the property.

 In the widest possible sense, the property includes all the legal
rights of a person, no matter what his description is. The
property of a man is all that belongs to him following the law.

 According to Blackstone: “The inferior hath no kind of property

in the company, care or assistance of the superior, as the
superior is held to have those of the inferior.”

 According to Locke: “Every man has a property in his person.

Every individual has the right to preserve his property, that is,
his wife, liberty and estate.”
Property Under English Law :

Classification of Property Under English Law :

 Personal Property
 Real Property (immovable property itself & certain interest which
endure for life or are inheritable)
 Chattels Real (interest in immovable property for a terms of year only)
 Chattels Personal (Other than real property & Chattels real)
 Property Under TPA
- Movable & Immovable property

 The term “Property” has not been defined under TPA

 Comprehensive of all terms
 Total wealth of a person
 Broadly classified into Movable & Immovable

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:
“Property” means property of any kind, whether movable or immovable, tangible or
intangible, and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:
“Property” means the general property in goods, and not merely a special property.
 Why it is necessary to distinguish between movable &
immovable property ?
 General rules for both
 Rules for specific transfers of immovable property only.
 Specific procedure for immovable property (Attestation &
Registration)
 Law of Limitation
 MOVABLE PROPERTY
 TPA, 1882 does not define movable property.
It has to be explained by the help of other statutes.
 The general understanding is that it includes something that can be moved from one place to another
place.
 The General Clause Act, 1987
 Movable property means property of every kind except immovable property.
 Section 22 of IPC
 “Movable property”. —The words “movable property” are intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything which is
attached to the earth.
 The Registration Act, 1908 (Section 2(g))
 Movable property means property of every kind except immovable property but including standing timber,
growing crops and grass. (?)
 Sale of Goods Act defines “Goods” means
 every kind of movable property
 other than actionable claims and money
 includes stock and shares, growing crops, grass and things attached to or forming
part of the land which are agreed to be severed before sale or under the
contract of sale. [Section 2(7)].

 State of A.P. v NTPC Ltd, 2002 5 SCC 203

 IMMOVABLE PROPERTY
 Again,
 Section 3 of TPA 1882
 “immoveable property” does not include standing timber, growing crops or grass;

 General Clauses Act, 1897 (Section 3(26))

 Immovable property shall include land, benefits arising out of land, and things attached to earth, or
permanently fastened to anything attached to earth for its permanent beneficial enjoyment.
 Section 2(6) in The 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;“
 Section 3 of TPA 1882
 “attached to the earth” means—
 (a) rooted in the earth, as in the case of trees and shrubs;
 (b) imbedded in the earth, as in the case of walls or buildings; or
 (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
Hence, as per these three definitions, the term “immovable property”
 Includes three things which are as under –
 1. Land
 2. Benefits arising out of Land (Profit de prendre)
 Ananda Behra V. State of Orrisa AIR 1956 (Orrisa Estate Abolition Act)
Firstly, As a profit de prendre it is recognised as the part of the land and hence immovable property under TPA. Secondly, the sale was
oral.
 Shanta Bai V. State oF Bombay AIR 1959 (M.P. Abolition of proprietary Rights (Estate Mahals & Alienated Lands) Act, 1950
Right to enter land (grant in immovable property) / Also, Distinction b/w Standing timber v Timber tree - benefit of soil
 3. Things attached to earth (Which means -)
 (a) rooted in the earth, as in the case of trees and shrubs;
 (b) imbedded in the earth, as in the case of walls or buildings; or
 (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
 Excludes three things –
 1. Standing timbers
 2. Growing Crops
 3. Grass
 Doctrine of Fixtures
 Evolution:
 The doctrine of fixture is evolved to define or view a thing which is chattel once but has later become a part
of the land.
 In India, it is defined as a permanent attachment or fixed real property. This doctrine is invoked to fulfill the
legal requirement to deal with the matter relating to determining the chattel and fixture.
 Meaning:
 Generally, fixtures mean the things which are physically attached to land become the part and property of the
landowners.

 “Quic quid plantatur solo, solo cedit”

 “Quic quid inaedificatur solo solo cedit”
 In English Law, chattels are also considered immovable property. Whatever is planted in the soil is belongs to
the soil. Subsequently, when the chattel is fixed to the soil it becomes fixtures. (Quic quid plantatur solo,
solo cedit.)

 Exceptions
 No Contract to the contrary
 Trade Fixtures
INDIAN LAW
 In Indian law, the movable property assumes to be the immovable property for the legal
purpose is called fixtures. The things embedded in the earth or what is so embedded for the
beneficial enjoyment which is regarded as immovable property. When a property is considered as
a fixture any dealing with the property should possess the legal requirement to deal as
immovable property.

 Ismai Kani Rowthan v. Nazarali Sahib, 1904 MLJ 14 25.

Held – The maxim of the English law ' Quic quid plantatur solo, solo cedit & Quicquid
inaedificatur solo solo cedit' has no application in India.
 The established rule is that the lessee, who is the lawful occupier of property not a
trespasser may remove at any time during the continuance of the lease all things which he
has attached to the earth, provided he leaves the property in the state in which he
received it.

 Thakoor Chander v. Ramdhone (1868) 6 WR 228

 The second rule is that if he allows the attachment or improvement to remain on the land
of the owner, and owner derives benefit from it, he is entitled to compensation for the
value of the attachment or improvement.
 TEST OF FIXTURE

 1. Mode of Annexation or extent of Fixture.

 Wake V. Hall (1883)

 2. The purpose or object of annexation.

 3. By whom the things are attached.

 THANK YOU
- Khyati Nayak
- Assistant Professor (Law)
- KPMSOL, NMIMS MUMBAI

[email protected]
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