Property Law: IIIrd Internal

Case Comment on Exchange of Property

Arghya Chakraborty
18010126236
2nd Year
Batch: 2018 – 2023
Division – C
Justification Note:

Respected Sir,

I, Arghya Chakraborty, student of 2nd year in your esteemed institution, am

sincerely regretful to bring to your notice that I was unable to appear for the 1st
and the 2nd Internal of Property Law, despite my earnest efforts.

The justification statement, as required, for my absence from the prior two
internals are as follows:-

• Due to deficiency of Vitamin D, a minor impact caused the knee cap of

my left knee to be damaged (torn outer edges). I request you to allow me
2-3 days of time for presenting my initial medical reports too, by mail,
due to myself not being in Pune currently since the National Lockdown.
As supporting documentary evidence for now, I have attached my latest
X-ray and medical consultation reports in the next page.

• Also, I proactively volunteered in Symbhav 2020, in the following

capacities:-
1. Event Head for “Future of Happiness: Panel Discussion” on
behalf of the Rotaract Club of SLS, Pune.
2. Event Head for Mr.& Ms.Symbhav, as member of Quality Control
& Outstation Committee, Symbhav.
3. As a member of Marketing Committee of the SLSP MUN.

I sincerely apologise for my absence from the prior two internals and request
you to take the above mentioned justification into account, and kindly allow me
to appear for the 3rd Internal.

With Regards,
Your’s Sincerely,
Arghya Chakraborty
18010126236
2nd Year, Div-C
• Recovery check up X-Ray report
• Event Head for “Future of Happiness” event.
Punjab-Haryana High Court
Paramjit Singh vs Ratti Ram on 10 March, 2004
Equivalent citations: AIR 2005 P H 4, (2004) 137 PLR 361
Bench: S.S. Nijjar, J.

Facts:

Ratti Ram, the plaintiff instituted a civil suit on 24.1.1979 being case No.
121 of 25.1.1979 seeking a decree for possession in respect of the land
fully described in the title of the suit, situated at village Shergarh Tehsil
Dabwali, District Sirsa of which the plaintiff is the sole owner.

But in the revenue papers it has been shown as exchanged is wrong

against law and facts and the plaintiff is titled to gets the its possession on
the basis of oral and documentary evidence of all kinds."

On 18.11.1963, Paramjit Singh, the appellant had purchased land from

Sohan Lal, brother of the plaintiff. After selling the land to the appellant
Sohan Lal exchanged the same land with the plaintiff. This exchange of
land between the brothers was challenged by the appellant by filing a
civil suit, which was decreed in favour of the appellant on 30.7.1968. It
was held that the exchange executed between Sohan Lal and Ratti Ram
with regard to the suit land, was not binding on the appellant.

Aggrieved against the aforesaid judgment and decree, Ratti Ram filed
Civil Appeal No. 183 of 1968, which was decided on 25.3.1969. In the
appeal, it was held that the judgment and decree of the trial Court is set
aside. The appeal is accepted.The appellant became owner of the land

Therefore, appellant orally exchanged the aforesaid land with the plaintiff
in lieu of the suit land proceedings of which have culminated in the
present Regular Second Appeal. This exchange was oral. Subsequently,
however, by writing the factum of oral exchange was admitted by the
parties. Thereafter, on 24.1.1969 the plaintiff filed a suit for possession
alleging therein inter alia that the exchange not having been registered in
accordance with the Section 17 of the Registration Act, 1908 is not
binding on the plaintiff and the same can also not be admitted into
evidence in proof of the oral exchange.The appellant also raised a plea
that they have been in adverse possession of the suit land and had,
therefore, become owners thereof. On the basis of the pleadings of the
parties, the trial Court framed the following issues:

1. Whether the plaintiff is the owner of the suit land? OPP

2. If issue No. 1 is proved, whether the plaintiff is entitled to the

possession of the suit land? OPP

3. Whether the plaintiff has no locus standi to file the present suit? OPD

4. Whether the suit land has not been properly described? If so, its effect?
OPD

5. Whether the defendant has become the owner of the suit land by way
of adverse possession and is in possession since 8.11.1963? OPD

6. Whether the plaintiff is estopped from filing this suit by his act and
conduct? OPD

7. Whether the suit is not maintainable in the present form? OPD

8. Whether the defendant has made any improvements on the suit land? If
so, to what effect? OPD

9. Whether the suit is time barred? OPD

10. Whether the defendant is entitled to special costs? OPD

11. Whether the plaintiff has waived his right in the suit land? If so, its
effect? OPD

12. Relief.
 On the other hand Mr. K.S. Godara appearing for the respondent, submits
that the judgment of the lower Appellate Court does not call for any
interference in Regular Second Appeal. The judgments relied upon by the
trial court, have been rightly distinguished by the lower Appellate Court.
He relies on a judgment of this Court in the case of Shisnpal v. Vikram
1999(1) R.C.R. 629 in support of the submission that the written
document could not have been admitted into evidence.

Rules:

Transfer of Property Act, 1882

A Bill finally presented to the Legislative Council, became a law on the

17th of February 1882 and came into force on 1st July of the same year.
The Transfer of Property Act, 1882 mainly deals with the transfer of
immovable property. It does not apply to transfers by the operation of law
such as transfer of immovable property necessitated by Order of Court for
insolvency or forfeiture among others. The 137 sections contained within
have been divided into 8 chapters.
Interestingly, nowhere does the Act define ‘What is a transfer of
property’. But it does define ‘transfer’ as a standalone in Section 5.

Exchange under the Transfer Property Act, 1882:

Transfer of Property Act, 1882

S.118. "Exchange" defined

When two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing or both things being money only, the
transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in

manner provided for the transfer of such property by sale.
 By its very existence, society mandates interaction, exchange or transfer. A
property, movable or immovable, is transferred from one person to another
under various different situations and circumstances and for different
values. The transfer may be a gift, an inheritance or an asset acquired by
paying full value.

When a movable property is transferred inter-vivos (between two living

persons), Sales of Goods Act, 1930 comes into play. When an immovable
property is transferred from living person to living person(s), the Transfer
of Property Act, 1882 comes into play. In case, the property is transferred
from a dead person to a living person(s), the law applied will be the Law of
succession. Should a person die without leaving a will (intestate), the law
of intestate succession is applicable and in cases where a person dies
leaving a will, the law of testamentary succession is applicable.

Background:

Civil - Suit for possession - Trial court dealt with the legal position as to
whether writing required to be registered and whether its non-registration
would make the same inadmissible in evidence - Trial court also notices
that since the Plaintiff had been declared to be Owner of the suit land, it
cannot be said that he has no locus standi to file the suit.

Issues :

Whether an oral exchange of land, subsequently evidenced by a writing

executed between the parties to the exchange, compulsorily registrable
provided the land exchanged is of valuee than Rs. 100/-?

Analysis:

Taking the facts and arguments into consideration, lower Appellate

Court had erred in law in holding that the oral exchange was registrable .
The Appellate court also erred in law in holding that document was not
admissible in evidence.

To be fair, it must be noticed that Mr. K.S. Godara had relied on the
judgments rendered by this Court in Shisnpal's case (supra). However,
perusal of the aforesaid judgment shows that therein the High court was
dealing with alleged family settlement. After examining the merits of the
case, court had come to the conclusion that there was no family
settlement. It was held that family settlement can be made by the
members of the family when there is a dispute among themselves.

The court observed that it is well settled that a family settlement is based
on the assumption that there is an antecedent title of some sort in the
party and the agreement acknowledges and defines what that title is.

The court was dealing with property which admittedly belonged to one
Gyani Ram exclusively. Gyani Ram during his life time wanted to give
the entire property to the plaintiff. It was held that such transfer can only
be effected by a gift or settlement deed. Under Section 123 of the
Transfer of the Property Act, a gift can be made only by a registered
document attested by witnesses. The court further noticed that it was not
the case of the plaintiff that there can be an oral gift in the State of Punjab
and the provisions of Section 123 of the Transfer of Property act are not
applicable. The court also referred to the decision of the Court in Malkiat
Singh v. Gram Panchayat MANU/PH/0101/1974 wherein it has been held
that oral gift is not saved from the requirement of validity under the
Transfer of Property Act. Under Section 17 of the Registration Act right
in the immovable property can only be relinquished by the original owner
by a registered document. In those circumstances, it was held that since
the gift was not registered it could not be acted upon. The aforesaid
judgment in my view, would not be applicable to the facts and
circumstances of this case.

Scope:

Since the Transfer of Property Act, 1882 is not a complete code of

transfer of property; we can say its scope is limited. The Act does not
apply to all the transfers taking place in India. So, we can say that the
scope of Exchange under the Transfer of Property Act is also limited
and the definition of exchange is not limited to immovable property. An
 exchange is, therefore, not only the exchange of lands but also the barter
of goods. If one of the items that are transferred is money, the transaction
is not an exchange but a sale because the price is money, only.

The ownership of one party must be exclusive of the ownership of the

other. Therefore, a partition is not an exchange. A transfer by a husband
to a wife, in a discharge of her claim to maintenance, is not an exchange,
as the wife transfers no ownership in anything.

If the lessee surrenders a lease and, the landlord grants him the lease of
another property, the transaction is not an exchange. If both parties are
not the same there cannot be an exchange.

Exchange of Property

A transaction wherein parties trade goods, or commodities, for other goo

ds, in contrast with a sale or trading of goods for money.

An exchange of property is a type of barter contract, applicable only to ag

reements relating to goods and services, not to agreements involving land.

Exchange of property is one of the various modes to transfer ownership

rights in a property (both movable and immovable). Other popular and
widely used modes for transfer of immovable property are Sale, Gift,
Will etc.

“Sale of immovable property” is defined under section 54 of “Transfer

of Property Act, 1882” as “transfer of ownership in exchange for a price
paid or promised or partly paid and part promised”. The essential features
for a transfer to be termed as “Sale” are:-

1. The subject matter of such transaction must be immovable property.

2. The property must be transferred absolutely.
3. There must be at least two parties – the seller and the buyer.
4. There must be a consideration in terms of money only.
5. Stamp duty must be paid on such transaction.
 6. The transaction must be registered if the consideration amount is
Rs.100/- or more

However, under the provisions of “Transfer of Property Act, 1882”

transactions in an immovable property can be carried on by exchange of
one property for another. After due completion of the process of exchange,
as required under law, the transactions acquire the sanctity of “transaction
under sale”.

Conclusion :

It is well settled proposition of law that any document even a decree which
merely recognizes pre-existing rights, does not require registration. It was
been held that oral gift was not saved from the requirement of validity
under the Transfer of Property Act. Under Section 17 of the Registration
Act, 1908 right in the immovable property can only be relinquished by the
original owner by a registered document. In those circumstances, it was
held that since the gift was not registered it could not be acted upon. The
aforesaid judgment, were held to not be applicable to the facts and
circumstances of this case. Judgment of lower Appellate Court was set
aside and the judgment of the trial Court was restored. Suit filed by the
Plaintiff was dismissed and the Appeal was allowed.

Suggestions/Reforms:

1. Inculcating and applying technology to maintain Land Exchange records.

For example digitalised transactions based on Blockchain technology.
2. Legislative & Judicial clarity upon definitions of Family Property/Land
dispute for a crisp understanding and sorting of Family Property Cases.
References

1. http://www.lawkam.org/property/exchange-transfer-property-act-1882/6616/
2. http://www.advocateselvakumar.com/propertyregistrations/exchange_deed.p
hp
3. http://www.ipropertybook.com/bnm/exchange-of-property-movable-and-
immovable/
4. http://advocateji.com/exchange-according-to-the-transfer-of-property-act

Book:-

• The Transfer of Property Act- G.P. Tripathi