Property law
LLB Paper Code: LLB 306
Subject: Property Law L4 PSDA2 C5
Unit-I: Concept of Property and General Principles Relating to Transfer of Property
a. Concept of Property: Distinction between Movable and Immovable Property
b. Conditions Restricting Transfer
c. Definition of Transfer of Property
d. Transferable and Non-Transferable Property
e. Transfer to an Unborn Person and Rule against Perpetuity
f. Vested and Contingent interest
g. Rule of Election
Unit-II: General Principles Governing Transfer of Immovable Property
a. Transfer by Ostensible Owner
b. Rule of Feeding Grant by Estoppel
c. Rule of Lis pendens
d. Fraudulent Transfer
e. Rule of Art Performance
f. Actionable Claim
Unit – III: Specific Transfers – I
a. Mortgage: Definitions and Kinds, Rights and Liabilities of Mortgagor and
Mortgagee
b. Charge
Unit – IV: Specific Transfer – II
a. Sale and Gift
b. Lease
1.1 Introduction:-The act came into force on 1st July, 1882. The Act applies to the whole of
India. The Preamble to the Act lays down that it is an Act to define and amend the law relating to
transfer of property by act of parties (i.e. not by operation of law) The objectives of the Transfer
of Property Act are as follows : 1. To bring the rules which regulate the transmission of property
between living persons into harmony with the rules affecting its its devolution upon death, and
thus to furnish the complement to the work commenced in framing the law of intestate and
testamentary succession; and 2. To complete the code of contract law, so far as it relates to
immovable property.” The Act is limited to the transfer of property by act of parties, as
,distinguished form a transfer by operation of law e.g. in case of inheritance (succession),
insolvency, forfeiture, or sale in execution of a decree. It relates to transfers of property inter
vivos, i.e. voluntary transfers between living persons, and has no application to the disposal of
property by will. Some of the general provisions of the T.P Act may be applied even to transfer
by operation of law, on principles of justice, equity and good conscience.
Important Definitions:- 1. Property- Transfer of Property Act 1882 does not define the term
‘property’ but it has been used in its widest and most comprehensive sense. Property is a legal
term to denote every kind of a interest or right which has an economic content. When a property
is transferred, the rights along with the property are also transferred. Property is divided into two
broad category i.e. Movable and immovable property
2. Immoveable property – Transfer of property act does not defined the term immovable
property but it only speaks that immovable property does not include standing timber, growing
crops or grass. As the act do not give exhaustive definition it only tells what is not included in
immovable property, it become necessary to explore the other acts which defined the term
immovable property. According to section 3(25) of the General clauses Act 1897, “the
Immovable property shall include land, benefit to arise out of land and things attached to earth
or permanently fastened to anything attached to the earth”. Registration Act 1908 define
‘immovable property’ as “ it shall include land, buildings, hereditary allowances, right to ways,
lights, ferries, fisheries or any other benefits to arise out of land or things attached to the earth or
permanently fastened to anything which is attached to the earth but not standing timber, growing
crops grass”.
4. Attested:- Attested in relation to an instrument, means and shall be deemed always to have
meant attested by two or more witnesses each of whom has (a) seen the executant sign or affix
his mark to the instrument, or (b) has seen some other person sign the instrument in the presence
and by the direction of the executant, or (c) has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person, and (d) each
of whom has signed the instrument in the presence of the executant; but (e) it shall not be
necessary that more than one of such witnesses shall have been present at the same time, and (f)
no particular form of attestation shall be necessary. To attest means to sign and witness any fact.
In T.P. Act attesting means that a person has signed the document by way of testimony of the fact
,that he saw it executed. The party who sees the document executed is, in fact, a witness to it; if
he subscribes as a witness, he becomes an attesting witness. To ‘execute’ means to write and to
put signatures on the instrument.
5. Registered- According to Transfer of property act “Registered” means registered in any part
of the territories to which this Act extends under the law for the time being in force regulating the
registration of documents. According to Registration Act, (a) the description of the property must
be suitably given so that it become easy to identify the property, (b) registration must be done in
the area in which the property is situated (c) the registration must be by the prescribed authority
and (d) the document for registration must be presented by the proper person. For the purpose of
registration of a document, it is mandatory to fulfill all the above provisions of Registration Act,
if the provisions of registration act will not fulfilled, the document will not be considered as duly
registered.
6. Attached to the earth:- Attached to the earth means-- (i) rooted in the earth, as in the case of
trees and shrubs; (ii) imbedded in the earth, as in the case of walls or buildings; or (iii) attached
to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
7. Actionable Claim:- Actionable claim means a claim (a) to any debt, other than a debt secured
by mortgage of immoveable property or by hypothecation or pledge of moveable property, or
(b) to any beneficial interest in moveable property not in the possession, either actual or
constructive, of the claimant,
(c)which the Civil Courts recognize as affording grounds for relief, whether such debt or
beneficial interest be existent, accruing, conditional or contingent.
In brief, an actionable claim means – (i) a claim to an unsecured debt, or
(ii) a claim to any beneficial interest in movable property not in possession of the claimant.
Every claim is not an actionable claim. It must be a claim either to a debt or to a beneficial
interest in movable property. The beneficial interest is not the movable property in itself, and
may be existing, accruing, conditional or contingent. The movable property in which such
beneficial interest is claimed, must not be in the possession of the claimant. A debt is an
obligation to pay a definite amount of sum of money, if the sum money is not certain, it is not
debt.
A debt may be payable in future, or it may be conditional or contingent. Debt secured by a
mortgage of immovable property or by pledge of movable property is excluded from the
definition of actionable claim, as they are secured.
Beneficial interest refers to a claim under a contract to movable property
, 8. Notice: - A person is said to have notice" of a fact when he actually knows that fact, or when,
but for willful abstention from an inquiry or search which he ought to have made, or gross
negligence, he would have known it
1.3 Types of Property Transfer of Property Act 1882 does not define the term ‘property’ but it
has been used in its widest and most comprehensive sense. A property is a collection of rights.
When a property is transferred, the rights along with the property are also transferred but it is not
necessary to transferred all rights with the property, the arrangement can be made by which some
of the rights may be transferred. For example, when gift of a house is made by the transferor to
transferee, there is a transfer of absolute right but in case of a lease agreement only partial
interest i.e. right of enjoyment of the house is transferred. Property is divided into two broad
category i.e. Movable and immovable property.
1. Immovable Property – The transfer of property Act 1882 has not defined the term but
Section 3 of the act merely lay down that "immoveable property" does not include standing
timber, growing crops or grass. Section 3(26) of the general clause Act 1897 defined
immovable property as “it shall include land, benefits to arise out of land and things
attached to the earth, or permanently fastened to anything to the earth.’’ According to
Indian Registration Act, Immovable Property includes land, building, hereditary
allowances, right to ways, lights, ferries, fisheries, or any other benefits to arise out of land
and things attached to earth, but not standing timber, growing crops or grass. Immovable
Property means lands, benefits arising of the lands and the things attached to the earth or
permanently fastened to anything attached to the earth. Other than the physical aspect,
every benefit arising from and every interest in the property is also included in the
definition. It excludes three things, namely, standing timber, growing crops and grass. It
may be concluded from above definitions that Immovable Property means lands, benefits
arising of the lands and the things attached to the earth or permanently fastened to anything
attached to the earth. Other than the physical aspect, every benefit arising from and every
interest in the property is also included in the definition. It excludes three things, namely,
standing timber, growing crops and grass
After analysis the above definitions it may be concluded that the following objects and things
are included in ‘Immovable property’:
(1) Land – Land includes earth’s surface, column of space above the surface, the ground
LLB Paper Code: LLB 306
Subject: Property Law L4 PSDA2 C5
Unit-I: Concept of Property and General Principles Relating to Transfer of Property
a. Concept of Property: Distinction between Movable and Immovable Property
b. Conditions Restricting Transfer
c. Definition of Transfer of Property
d. Transferable and Non-Transferable Property
e. Transfer to an Unborn Person and Rule against Perpetuity
f. Vested and Contingent interest
g. Rule of Election
Unit-II: General Principles Governing Transfer of Immovable Property
a. Transfer by Ostensible Owner
b. Rule of Feeding Grant by Estoppel
c. Rule of Lis pendens
d. Fraudulent Transfer
e. Rule of Art Performance
f. Actionable Claim
Unit – III: Specific Transfers – I
a. Mortgage: Definitions and Kinds, Rights and Liabilities of Mortgagor and
Mortgagee
b. Charge
Unit – IV: Specific Transfer – II
a. Sale and Gift
b. Lease
1.1 Introduction:-The act came into force on 1st July, 1882. The Act applies to the whole of
India. The Preamble to the Act lays down that it is an Act to define and amend the law relating to
transfer of property by act of parties (i.e. not by operation of law) The objectives of the Transfer
of Property Act are as follows : 1. To bring the rules which regulate the transmission of property
between living persons into harmony with the rules affecting its its devolution upon death, and
thus to furnish the complement to the work commenced in framing the law of intestate and
testamentary succession; and 2. To complete the code of contract law, so far as it relates to
immovable property.” The Act is limited to the transfer of property by act of parties, as
,distinguished form a transfer by operation of law e.g. in case of inheritance (succession),
insolvency, forfeiture, or sale in execution of a decree. It relates to transfers of property inter
vivos, i.e. voluntary transfers between living persons, and has no application to the disposal of
property by will. Some of the general provisions of the T.P Act may be applied even to transfer
by operation of law, on principles of justice, equity and good conscience.
Important Definitions:- 1. Property- Transfer of Property Act 1882 does not define the term
‘property’ but it has been used in its widest and most comprehensive sense. Property is a legal
term to denote every kind of a interest or right which has an economic content. When a property
is transferred, the rights along with the property are also transferred. Property is divided into two
broad category i.e. Movable and immovable property
2. Immoveable property – Transfer of property act does not defined the term immovable
property but it only speaks that immovable property does not include standing timber, growing
crops or grass. As the act do not give exhaustive definition it only tells what is not included in
immovable property, it become necessary to explore the other acts which defined the term
immovable property. According to section 3(25) of the General clauses Act 1897, “the
Immovable property shall include land, benefit to arise out of land and things attached to earth
or permanently fastened to anything attached to the earth”. Registration Act 1908 define
‘immovable property’ as “ it shall include land, buildings, hereditary allowances, right to ways,
lights, ferries, fisheries or any other benefits to arise out of land or things attached to the earth or
permanently fastened to anything which is attached to the earth but not standing timber, growing
crops grass”.
4. Attested:- Attested in relation to an instrument, means and shall be deemed always to have
meant attested by two or more witnesses each of whom has (a) seen the executant sign or affix
his mark to the instrument, or (b) has seen some other person sign the instrument in the presence
and by the direction of the executant, or (c) has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person, and (d) each
of whom has signed the instrument in the presence of the executant; but (e) it shall not be
necessary that more than one of such witnesses shall have been present at the same time, and (f)
no particular form of attestation shall be necessary. To attest means to sign and witness any fact.
In T.P. Act attesting means that a person has signed the document by way of testimony of the fact
,that he saw it executed. The party who sees the document executed is, in fact, a witness to it; if
he subscribes as a witness, he becomes an attesting witness. To ‘execute’ means to write and to
put signatures on the instrument.
5. Registered- According to Transfer of property act “Registered” means registered in any part
of the territories to which this Act extends under the law for the time being in force regulating the
registration of documents. According to Registration Act, (a) the description of the property must
be suitably given so that it become easy to identify the property, (b) registration must be done in
the area in which the property is situated (c) the registration must be by the prescribed authority
and (d) the document for registration must be presented by the proper person. For the purpose of
registration of a document, it is mandatory to fulfill all the above provisions of Registration Act,
if the provisions of registration act will not fulfilled, the document will not be considered as duly
registered.
6. Attached to the earth:- Attached to the earth means-- (i) rooted in the earth, as in the case of
trees and shrubs; (ii) imbedded in the earth, as in the case of walls or buildings; or (iii) attached
to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
7. Actionable Claim:- Actionable claim means a claim (a) to any debt, other than a debt secured
by mortgage of immoveable property or by hypothecation or pledge of moveable property, or
(b) to any beneficial interest in moveable property not in the possession, either actual or
constructive, of the claimant,
(c)which the Civil Courts recognize as affording grounds for relief, whether such debt or
beneficial interest be existent, accruing, conditional or contingent.
In brief, an actionable claim means – (i) a claim to an unsecured debt, or
(ii) a claim to any beneficial interest in movable property not in possession of the claimant.
Every claim is not an actionable claim. It must be a claim either to a debt or to a beneficial
interest in movable property. The beneficial interest is not the movable property in itself, and
may be existing, accruing, conditional or contingent. The movable property in which such
beneficial interest is claimed, must not be in the possession of the claimant. A debt is an
obligation to pay a definite amount of sum of money, if the sum money is not certain, it is not
debt.
A debt may be payable in future, or it may be conditional or contingent. Debt secured by a
mortgage of immovable property or by pledge of movable property is excluded from the
definition of actionable claim, as they are secured.
Beneficial interest refers to a claim under a contract to movable property
, 8. Notice: - A person is said to have notice" of a fact when he actually knows that fact, or when,
but for willful abstention from an inquiry or search which he ought to have made, or gross
negligence, he would have known it
1.3 Types of Property Transfer of Property Act 1882 does not define the term ‘property’ but it
has been used in its widest and most comprehensive sense. A property is a collection of rights.
When a property is transferred, the rights along with the property are also transferred but it is not
necessary to transferred all rights with the property, the arrangement can be made by which some
of the rights may be transferred. For example, when gift of a house is made by the transferor to
transferee, there is a transfer of absolute right but in case of a lease agreement only partial
interest i.e. right of enjoyment of the house is transferred. Property is divided into two broad
category i.e. Movable and immovable property.
1. Immovable Property – The transfer of property Act 1882 has not defined the term but
Section 3 of the act merely lay down that "immoveable property" does not include standing
timber, growing crops or grass. Section 3(26) of the general clause Act 1897 defined
immovable property as “it shall include land, benefits to arise out of land and things
attached to the earth, or permanently fastened to anything to the earth.’’ According to
Indian Registration Act, Immovable Property includes land, building, hereditary
allowances, right to ways, lights, ferries, fisheries, or any other benefits to arise out of land
and things attached to earth, but not standing timber, growing crops or grass. Immovable
Property means lands, benefits arising of the lands and the things attached to the earth or
permanently fastened to anything attached to the earth. Other than the physical aspect,
every benefit arising from and every interest in the property is also included in the
definition. It excludes three things, namely, standing timber, growing crops and grass. It
may be concluded from above definitions that Immovable Property means lands, benefits
arising of the lands and the things attached to the earth or permanently fastened to anything
attached to the earth. Other than the physical aspect, every benefit arising from and every
interest in the property is also included in the definition. It excludes three things, namely,
standing timber, growing crops and grass
After analysis the above definitions it may be concluded that the following objects and things
are included in ‘Immovable property’:
(1) Land – Land includes earth’s surface, column of space above the surface, the ground
