Not an exhaustive act, is a General Law, so will be overridden by Specific Laws

Reason for Property Laws

1. Property can never be without an owner, there may be disputes, but an owner is
always assigned.
2. No person can own a property perpetually, even after their death. It must always be
transferred to a living person.

Transfer of Property
1. By operation of Law
 Succession
 Insolvency

2. Inter Vivo – between living persons [focus of this Sem]

Living Persons
1. Humans
2. Corporations

Important Questions [bout TPA]

1. Who
2. How
3. Why
4. When
5. What
6. Which
7. Execution
8. Absolute/Conditional

Types of Transfer
1. Lease
2. Gift
3. Mortgage
4. Transferable claims
5. Tenancy
Transfer of Property – Basic
Transfer of property in the generic sense means plenty of things however in law, transfer of
property takes place either by operation of law or inter vivo i.e., between 2 living persons.
Transfer inter vivo is regulated by the Transfer of Property Act.
1. Before the act came into being such matters were regulated by courts based on justice
and equity.
2. The act is not an exhaustive code and lays down general principles for transfer of
immovable property and specific principles for transfer of movable property.
3. Such transfers can be carried out in a variety of ways for instance, through lease, sale,
gifts, mortgage, hypothecation

Moveable Property
1. Not defined under TPA
2. In generic terms signifies something which is not fix and is capable of being moved
from one place to another.
3. The Registration Act and the General Clauses Act define movable property as all
property other than immovable property.
4. The Registration Act in addition lays down the following to be movable property-
Standing timber
Growing crops
Grass

Immovable Property
The General Clauses Act defines immovable property to include –
1. Land
 Land includes not only the soil on the surface of the land but also what is present
beneath the surface of the land and over and above the land. Thus, the sub soil,
any minerals below the surface of the land, any crops growing in the subsoil etc.
all form part of land.
 Similarly, the air-column or any construction/structure above or on the land also
forms part of land.

2. Benefits arising out of land

 Benefits arising out of land signify Profit a Prende this means that any profit
arising out of the lawful use of land also constitutes immovable property. For
example, rent, lease, sale price of cultivated crops etc.

3. Things attached to the earth/ permanently fastened to anything attached to the earth
 The phrase attached to the earth [defined under TPA] means rooted in the earth
[like trees, shrubs etc.]
 Embedded in the earth [like walls, pillars etc.]
  Attached to what is so imbedded for the permanent beneficial enjoyment of that
to which it is attached

Permanent Beneficial Enjoyment

Permanent beneficial enjoyment is determined usually on case-to-case basis and has long been
regulated by the Doctrine of Fixtures.
The Doctrine of Fixtures originates din England and was adopted in India. However, its
operation by Indian Courts has been different than the courts of England. The doctrine
considers three factors -
1. The mode of attachment [way the thing has been fixed for instance, whether using nuts
and bolts, or by the sue of sallow tape] and the consequences of detachment [monetary
value will be degraded, alteration in nature of the property]

2. The object or intention of the attachment [whether it was intended to be attached for a
temporary purpose in time or for a longer period]

3. By whom was the attachment made [whether by the landlord/owner or by the tenant,
whether by the lessor or by the lessee etc.]
However, if there is a movable property whose removal will either diminish the value of the
immovable property or destroy the nature/character of the immovable property then, it cannot
be removed from the property. Adequate compensation can be sought for he said movable
property.

The Registration Act

The Registration Act defines immovable property to include benefits arising out of land,
hereditary allowances, right of way, lights, ferries, and fisheries.

Conveyance
Creation of a title or an interest in transfer of property. This transfer can be done in two ways,
that are –
1. Absolute
2. Partial
The three conditions for conveyance include –
1. Present
2. Future
3. Conditional
Property that does not belong to you at present cannot be transferred and must be transferred
to another living person – it could even be himself or himself and another person.
You can transfer property to yourself – in different capacity. E.g. – using personal property as
office property.

Transfer of Property – Definition

Therefore, transfer of property under Section 5 of the TPA can be defined as –
An act by which a living person conveys property in present, future or conditional, to another
person, or himself, along with another living person.
Also, when you transfer property, you must be competent. However, when you receive
property, you need not be competent.
Jugal Kishore v. Raw Cotton Company Ltd. 1995

Transfer of Property
Transfer of Property under TPA is governed by provisions of Section 5. It defines Transfer of
Property as an act whereby a living person conveys property in present or in future, or
conditionally, either to another living person or to himself and another living person.

For the sake of better understanding, it is imperative to understand what the various
components of Transfer of Property mean, as given in the provision.
1. An act – means a positive commission. It is the opposite of an omission.

2. Living person – living person includes human beings, corporations, groups of

individuals, whether incorporated or not.
 3. Conveyance – to convey means the creation of a new interest or a new title in favor of
the transferee. It can either be an absolute interest or be a partial or limited interest.
For instance, sale of an immovable property creates a new title in favor of the
transferee [owner] and involves transfer of absolute interest over the property.
Similarly, where a property is rented out there is again the creation of a new
title/interest in favor of the transferee [tenant/tenancy] and the interest in the property
is a partial or limited one.
Jugal Kishore v. Raw Cotton Co. Ltd. 1995 - the Supreme Court points out that under
the Transfer of Property Act, there can be no transfer of property which is not in
existence at the date of the transfer. If there can be no transfer in praesenti of property
not in existence, it stands to reason and follows that there can be no creation of a right
over, or in respect of such property.

4. Property – includes both moveable and immovable property. It also includes tangible
and intangible property.

5. In present/future/conditionally – this phrase is to be understood as a qualification of

the word ‘conveyance’ and not as a qualification to the term ‘property’. This means
that conveyance can take place either in the present or in the future or conditionally.
However, for a transfer to be a valid one, the property must be in existence and the
transferer must be competent as on the date of the transfer. For e.g., 1 – A is the only
child of his old parents. Anticipating their death and his consequent succession to
their property, he sells it to B for an adequate consideration. The transfer is invalid.
E.g., 2 – A has an exquisite piece of jewelry and agrees to give it to her daughter upon
the daughter’s marriage. It is a valid transfer.

6. Transferee can be –
 Another living person
 The transferer himself but in another capacity [personal property as business
property]
 Himself and another living person.

The transferee need not be competent, but the transferrer must be.

Attestation
Means the putting down of signatures by a person on a document which serves as a witness to
the fact that the transaction was entered into by the parties to the transaction and was done so
out of their free will and consent. It does not in any manner signify the correctness of the
contents of the document.
Section 3 of TPA lays down that –
1. There must be two or more attesting witnesses.

2. The attesting witnesses must see

 The executant sign or mark their fingerprint on the document. Or,
  Another person validly signs or mark their fingerprint on the document either
on the direction of or in the presence of the executor. Or,
 Receive personal acknowledgement by the executant of either of the above.

3. The attesting witness need not witness the actual execution.

4. Both or all the attesting witnesses need not sign at the same time, but they must sign
in the presence of the executant, or a person duly authorized by him.

5. Attestation can be done only after the executor has signed the document, else, it shall
be an invalid attestation.

6. Attestation cannot be done through an agent.

7. Attestation does not mean knowledge of the contents of the execution deed, nor does
it mean the attestors’ consent to the execution.

8. The person attesting should be sui generis [capable of entering a contract]

9. It is essential that the person attesting the document has animo attestandi [intention to
attest]

10. A party to the transfer cannot attest to the transfer document, however, an interested
party is eligible to become an attesting witness. E.g. – A and B are renting a flat from
R. A and B were roommates, but B wants to move. R can be the attestee for the new
rental agreement.

Kumar Harish Chandra Singh Das v. Bansidhar Mohanty AIR 1965 SC 1738

Notice
Notice means bringing to knowledge a certain set of facts. Section 3 of the TPA talks about
the phenomenon of notice. Notice can either be express or actual or it can be a constructive
notice.
Actual or express notice means direct knowledge of a certain set of facts, whereas
constructive notice means implied knowledge.
Constructive notice is a legal presumption.
For actual or express notice, the notice must be –
1. Definite – rumors or hearsay does not count as notice.
2. Notice must be given to the interested parties and not to strangers.
3. The notice must be about that very transaction and not about any other related or
incidental transaction.
Constructive notice is imputed in cases of –
1. Willful abstention from search or inquiry.
2. Gross negligence – Lloyd Bank v. PE Guzdar.
3. Registration – works as notice only where it is necessary, and all formalities are
complete. Notice to an agent in his capacity as an agent also counts as notice.
4. Lastly, actual possession of a property is also considered as notice of title.

Non-Transferable Property

NON-TRANSFERABLE POPERTY

Any other law under TPA

SEC 6 – 10
Spes-successionist

re-entry restricted interest future

maintenance

heir apparent legacy of kinship any other likelihood

easement apart from dominance heritage

The transfer of property act lays down those two kinds of property can’t be transferred. Which
are –
1. Any property lays down as non-transferable under any law enforce in India at the time
being.

2. As given under TPA. Under Section 6 of TPA, lays down 10 kinds of non-transferable
property. Which are -
 Spes successions means the expectations of succession i.e., it is a mere
likelihood. Instances of spec successions are –
 An heir apparent
 Relation obtaining the legacy of a kinsman
 Any other mere possibility of like Nature (e.g., right to future offerings)

 Mere right of re-entry – is a personal licence and cannot be transferred. Owners

has the absolute right.

 Easement apart from dominance heritage – an easement is always attached to

the dominant heritage and does not have an independent existence. Being
 attached to the dominant heritage, the easement cannot be the sole subject of the
transfer.

 Restricted interest – an interest bestowed upon a person by virtue of res

commercium is a restricted interest and cannot be transferred. For e.g., a faculty
member cannot rent out his or her office space to a third person.

 Right to future maintenance- maintenance is a personal right and as a general

rule is not capable of transfer per se. future maintenance is any how not an
absolute right till its approval on the due date. Thus, it cannot be transferred.

Section 7 – Competency to Transfer

 1. Mere right to sue – it is the matter of social policy that a mere right to file a suit for an
uncertain or indefinite sum of money cannot be transferred, however, where the
property is itself transferred that the right to sue also automatically stands transfer with
it.

2. Public office and salary of public officer – there cannot be a direct transfer. Once salary
has been received the officer is free to transfer it to anyone and in any manner.

3. Pensions and stipends – it is a reward for personal service and hence cannot be
transferred to another person.

4. Transfer opposed to the nature of property –

 Res communes – air water
 Transfer for an unlawful object/ consideration- fraudulent, forbidden, involves
injury, defeats the purpose of law
 Transfer made to legally disqualified transferee

5. Untransferable right of occupancy – properties given on rent with the condition of

personal use, it cannot be further given to another for rent.
Sec 7 competency to transfer (goes along with sec 6) who can transfer the property.
If you are competent to contract you are competent to transfer the property (same prerequisites
of competency of contract) i.e., age, sound mind, not been disqualified

Section 43
Section 43 lays down the doctrine of feeding the grant by estoppel. It works as an exception
to the general rule that a person cannot transfer a better title than the one he has. It compels a
person to perform his side of the contract/transaction when the performance becomes
possible. It applies not just in the case of sale, but also in the case of mortgage, exchange,
lease, charge, etc.
Essentials are –
1. Fraudulent/erroneous representation of ownership – it is essential that the transferee is
misled by the transferers’ representation. The remedy is not available when the
transferee knew the truth and was not mislead.
2. Transfer is for consideration.
3. Transfer is of an immovable property.
4. The property subsequently stands transferred to the transferrer.
5. There is a subsisting contract of transfer – then at the option of the transferee, the
transfer can be compelled. It is not automatic. It is an additional remedy and not an
exclusive one.
6. There is one exception to this rule which is, that the rights of the subsequent
transferee for consideration and in good faith shall not be defeated. For existence, A
acquires property fraudulently from B. After the title transfers to A, he then sold the
 property to C, who was unaware of the fraud and purchased the property in good
faith. In this case, C’s right to property cannot be disputed.

Jama Masjid v. K Deviah

Difference Between Section 6(a) and Section 43

Section 6(a) and Section 43 are now read together. The Supreme Court has held that
wherever possible, the provisions of Section 43 shall not be read to the exclusion of the
provisions of Section 6(a). Where the essentials of Section 43 stand fulfilled, transactions
under Section 6(a) shall also comply with the provisions of Section 43. The differences
between different provisions are –
SECTION 6(a) SECTION 43
No misrepresentation Misrepresentation and consequent
misleading are essentials
Can be regarding immovable or moveable Applies only in the case of immovable
property property
Applies for all kinds of transfers, whether Transfer must be for consideration
for consideration or gratuitous
Substantive provision Rule of evidence
It deals with certain kinds of interest Deals with consequences of
misrepresentation
Conditional Transfers
Conditional transfers are perfectly acceptable in law and have the backing of law. Conditional
transfers can either be basis a condition precedent or a condition subsequent. Both are
recognized under law.
Section 10 lays down that any condition subsequent which has the effect of absolutely
restraining the transferee’s power of alienation shall be void and the transfer shall be deemed
to have taken place as if the condition was never imposed.
However, where the condition subsequent has the effect of only a partial restraint, then that is
completely valid and the transfer runs consequent with such condition.
There are two exceptions to the rule barring absolute restraint –
1. Lease
2. Transfer to a married woman

Question
Q – List five cases of absolute restraint and partial restraint each.
A – The cases on absolute restraint and partial restraint are –
Absolute Restraint
1. In Rosher v. Rosher
A man died, leaving behind a wife and a son. In his Will, he left his entire estate to his
son. The Will required the son to first offer the property for sale and then sell it to
another party for 3000 pounds, even though the market price was 15000 pounds. The
court ruled that these restrictions amounted to an absolute restraint on S's and his
heir's ability to alienate and were thus invalid.

2. In Gayashi Ram v. Shahabuddin

The sale document contained a clause stating that the transferee would not transfer the
property to any person other than the transferor or the transferor's heirs. This clause
prevented the transferee from selling, gifting, or even mortgaging the property. The
court ruled that this requirement is unenforceable as an absolute restraint and hence
invalid.

3. In K. Muniswamy v. K. Venkataswamy
A family was split up, but the deed for the split said that the mother and father could
only use the property while they were alive. After they died, the property was to be
split equally between the two sons. The parents could not sell the property while they
were still alive because they had a life interest in it. The parents sold their house to
one of their children. The sale was questioned by the other son. The court said that a
rule that made it impossible for them to give the property to anyone else was an
absolute restraint on alienation and was therefore illegal.
 4. In Manohar Shivram Swami v. Mahadeo Guruling Swami
Two first cousins A and B made a will of their property in favour of person B. When
A died, B took over the title to the property and sold it to C, who was also A's brother.
The sale agreement stated that if C wanted to sell the property, he would only sell it to
the seller's Jangam family and no one else. The court ruled that the condition included
in the selling transaction was invalid because it prevented C from giving up his
ownership interest in the property in any way.

5. In Renand v. Tourangeaon
The condition to restrain the property in this case prohibited the transferee from
transferring the property to another for a period of twenty years. The Court ruled that
such a condition was absolute, and that a restriction on alienation to third parties
could only be partial for three years and no longer.

Partial Restraint
1. In Zoroastrian Co-operative Housing Society Ltd v. District Registrar Co-operative
Societies
A society with the purpose of constructing houses for residential purposes had a bye
law stating that only Parsis could be members. There was also a requirement that no
member alienate the house from non-Parsis. The Supreme Court held that when a
person accepts membership in a co-operative society by submitting to its byelaws and
places a qualified restriction on his right to transfer property by stipulating that same
would be transferred with prior consent of society to a person qualified to be a
member of the society, it cannot be held to be an absolute restraint on alienation,
violating Section 10 of the Transfer of Property Act.

2. In Mata Prasad v. Nageshwar Sahai

It featured an agreement; it was an agreement prohibiting alienation. In this instance,
a succession dispute existed between a widow and a nephew. The compromise
stipulated that the widow would maintain possession of the property for life, while the
nephew's title was admitted under the condition that he would not alienate the land
during the widow's lifetime. The Privy Council determined that the compromise was
legitimate and prudent under the circumstances.

3. In Muhammad Raza v. Abhas Bandi Bibi

Where the condition prohibited the transferee from transferring the property to
strangers, i.e., those outside the transferor's family, the privy council determined that
the condition was just a partial restriction that was legitimate and enforceable.
Similarly, when a condition in the sale document stated that the property could not be
sold beyond the vendor's family, but the transferee sold it to the vendor's first cousin,
the Bombay High Court ruled that the condition constituted a lawful partial restraint.

4. In Raghuram Rao v Eric P. Mathias

The condition that prohibits the lessee from selling the leasehold property is not
invalid nor against the law.
 5. In Raja Jagat Ranvir v Bagriden
It is permissible for the lease to contain a condition stating that the lessee may not
sublet or assign his interest to anybody else for the duration of the lease.
[The last two cases come under exceptions to Section 10]

Section 11
Section 11 of TPA lays down that once a property is transferred and an absolute interest is
created in favor of the transferee, then any condition restraining the mode of enjoyment of the
transferee shall be invalid. The transferee shall be entitled to deal with the property as if no
such condition has been imposed. The transfer shall continue to operate as a valid transfer.

Restrictive Covenant
Restrictive Covenant were recognized as an exception to the principle laid down under the
provision of Section 11 in the English case of Tulk v. Moxmay. This means that where a
transferrer transfers one out of his two properties to a person and imposes a condition on its
use by the transferee keeping in mind the beneficial interest of the property he has retained, it
shall be a valid restraint. Two prerequisites are necessary – such condition is imposed by the
transferrer himself and such condition is for the beneficial enjoyment of the transferrer’s own
property. It can be affirmative or negative.