TRANSFER OF PROPERTY ACT, 1882

- Khyati Nayak
 CONTENT OUTLINE

MODULE 1
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

MODULE 2
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
 HISTORY AND ORIGIN OF
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 (Privy Council)
•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.
•TRANSFER OF PROPERTY ACT, 1882

•The bill was primarily based on English Law of property.

•Consistently Amended.. 12 amendment acts including... Transfer of Property (Amendment) Supplementary Act, 1929....
& so on in 2002.
 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.)
 WHAT IS 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)

 WHETHER TRANSFER OF PROPERTY IS A “UNION” SUBJECT
OR A “STATE” SUBJECT ?

LEGISLATIVE COMPETENCE:
7Th SCHEDULE
The 7th Schedule of Indian Constitution has three lists namely, the Union list, state list, and concurrent list that show the division of power between the Union
and States concerning certain subjects. The Union List has a total of 97 subjects, the State List has 66 subjects, and the Concurrent List has 47 Subjects.

 Entery 6 of List III (Concurrent List)

 Transfer of property other than agricultural land; registration of deeds and documents.

 Entry 18 of List II (State List)

 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.
 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 proceedings, Forfeiture etc.

By Act of Parties
1. Testamentary
For example : Will

2. Inter-vivos transfers (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
 LONG TITLE & 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.)
 SECTION 4
THE TRANSFER OF PROPERTY ACT, 1882
Section 4 in The Transfer of Property Act, 1882
4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration
Act.—The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian
Contract Act, 1872 (9 of 1872). [And section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall
be read as supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].]
 COVERAGE OF THE ACT
1. Transfer of property act includes the following types of conveyances only-
 Sale, Gift, Exchange, Mortgage and Lease also actionable claims.

2. It includes only “Transfer inter-vivos”.

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 Validation Act, 1913)

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 ?
Jurisprudential aspect of the concept of property, ownership, possession, right and interest :
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.

OWNERSHIP : Signifies some Rights In Property

What are the rights that an owner has in property ?
 Right of Ownership/of having the title of the property (Ownership/Title)
 Exclusive right to possess and enjoy the property (Right of Possession/Enjoyment)
 Exclusive right to alienate the property (Right of alienation)

These rights are called “interest” in the property.

According to Rousseau, “It was to convert possession into property and usurpation into a right that law and state were
founded”.
The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real society.

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an end. It is maximization of utilities.
According to Bentham, the command of utilities is measured by the material wealth. The maximization of material wealth is
indistinguishable from the ethical end; property is virtually an end in itself. In the words of Locke, the unlimited accumulation is
a natural right of the individual that is an end in itself.
Aristotle and Aquinas have considered, ‘’property as a means, concluded for a limited property right. Hegel and Green, treats
property, as a means, concluded for an unlimited right’.
The supporters of utilitarian tradition treat, accumulation of property, as an end, always meant a right of unlimited
accumulation.

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 (all form of property other than interest in freehold estate and interest in land----- but includes
equitable interest in freehold estate)
E.g. : Pritchard v. Briggs (1980) - Pre-emption

 Chattels Real (Akin to realty but lack indeterminate duration - interest in immovable property for a terms of year only)

 Chattels Personal (Other than real property & Chattels real)

 Real Property (immovable property itself & certain interest which endure for life or are inheritable)
 PROPERTY UNDER TPA
The term “Property” has not been defined under TPA
•Comprehensive of all terms
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.
•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.
 - MOVABLE & IMMOVABLE PROPERTY
Why it is necessary to distinguish between movable & immovable property ?

 Application of Rules
 General rules for both
 Rules for specific transfers of immovable property only.

 Application of Specific procedure for immovable property (Attestation & Registration) -

written/oral

 Application of Law of Limitation – 12 yrs v 3 yrs

 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)].

Article 366(12) - Goods

“goods includes all materials, commodities, and articles”

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

Electricity is an item produced as an article , thing or goods and process of generation of electricity is akin to manufacture.
 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;

According to the Section 269UA(d) of the Income Tax Act, 1961, the immovable property includes any
land, building, or section of the building that has machine equipment, plant, furniture, fittings, and others
attached to it.

 Examples of the immovable properties include:

 House, land, and trees which are attached to the Earth
 Factories
 Machine equipment required for commercialization purposes
 Statues, paint works and other decorative items which cannot be moved on their own
 Fertilizer used for plants and trees
 Mines or quarries
 Cutting of the bamboo trees up to a term mentioned in the contract
Hence, as per these above 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. (Right to enter lake and catch fish)
 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
The major conclusions arrived from this case were that trees are regarded as immovable property. In the case of a lease, the person who enjoys the property has no right to take it away.

 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 belongs to the soil. (Quic quid plantatur solo, solo cedit)
Subsequently, Whatever is built or embedded or attached into earth becomes earth. when the chattel is fixed to the soil it becomes fixtures. (Quic quid plantatur
solo, solo cedit.)

Rule : whoever own the land owns the fixtures.

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.

 khyati.nayak@nmims.edu
THANK YOU -
-
Khyati Nayak
Assistant Professor (Law)
- KPMSOL, NMIMS MUMBAI