G D GOENKA UNIVERSITY (SCHOOL OF LAW)

SEMESTER IV
PROPERTY LAW

CASE COMMENT: N. RAMAIAH VS NAGARAJ S. AND ANOTHER ON 13 MARCH, 2001

SUBMITTED TO: - PROF. SHREYAS VYAS

SUBMITTED BY: - RUDRRAKSHI PANDEY

COURSE:- BA.LLB (HONS)

ENROLL NO.:- 190060401019

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 INDEX

CONTENTS PAGE NO.

INTRODUCTION 3-4
FACTS OF THE CASE 5
JUDGEMENT 6
ANALYSIS OF THE JUDGEMENT 7-9
CONCLUSION 10

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 INTRODUCTION

N. Ramaiah vs Nagaraj S. And Another on 13 March, 2001 (AIR 2001 Kant. 395)

The Transfer of Property Act, 1882 accommodates the general principles of property transfer and
detailed rules with respect to a specific transfer of immovable property by sale, exchange,
mortgage, lease and gift. The act commenced into law on July 1st, 1882. The act regulates the
whole of India. The Preamble to the Act lays down an act to define and amend the law relating to
the transfer of property by act of parties (i.e. not by operation of law). Property- Transfer of
Property Act 1882 does not define the term ‘property, but it has been used in its extensive and
most comprehensive sense. Property is a legal term to denote every kind of interest or right
which has an economical content. The rights along with the property are also transferred when a
property is transferred. Property is divided into two broad categories, i.e. movable and
immovable property.
Though the Transfer of Property Act does not define immovable property, it only speaks that
immovable property does not include standing timber, growing crops or grass. As the act does
not give an exhaustive definition, it only tells what is not included in immovable property; it
becomes necessary to explore the other acts which defined the term immovable property.
According to section 3(25) of the General clauses Act 1897, “Immovable property shall include
land, benefit to arise out of land and things attached to the earth or permanently fastened to
anything attached to the earth”.1
The Transfer of Property Act, 1882 administers transfers interivos, that is, the act of a living
person, conveying property in present or in future, to one or more living persons.
“Section 5 of The Transfer of Property Act, 1862 defines “transfer of property” means an act by
which a living person conveys property, in present or in future, to one or more other living
persons, or to himself, 1[or to himself] and one or more other living persons; and “to transfer
property” is to perform such act.”2

1
The General Clauses Act 1897, § 3(25)
2
The Transfer of Property Act 1882, §5.

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In regard to the aforesaid definition, The provisions of the Transfer of Property Act 1882 are
inapplicable to testamentary successions, which The Indian Succession Act 1925 3 governs as
held in the N Ramaiah v. Nagaraj S.4

Statutes Referred:

● The Indian Succession Act,1925

● The General clauses Act,1897
● The Transfer of Property Act, 1882
● The Hindu Succession Act, 1956

Books Referred:

● Lexis Nexis’s The Transfer of Property Act by Dinshah Fardunji Mulla – 13th Edition
2018.
● Eastern Book Company's Law of Transfer of Property by Vepa P. Sarathi, Mallika Taly.
● Thomson Reuters: A Textbook on Transfer of Property Law by Shriniwas Gupta.

3
The Indian Succession Act 1925, § 59
4
AIR 2001 Kant. 395.

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 FACTS OF THE CASE
The Appellant (N. Ramaiah) is the brother of one Anjanamma. The said Anjanamma was the
widow, and the Respondent herein (S. Nagaraj) is the nephew (brother's son) of one Muni
Narayanappa. The Respondent herein (S. Nagaraj) filed a Probate for grant of letters of
administration in regard to a Will dated 11.1.1998 said to have been executed by Muni
Narayanappa. The said Will was contested by Anjanamma, widow of Muni Narayanappa, inter
alia on the grounds that the said will was a got up document, and that she had succeeded to the
properties of Muni Narayanappa as his sole legal heir.

S. Nagaraj filed an I.A.I. on 16-3-1998 seeking a temporary injunction to restrain Anjanamma

from alienating/encumbering the properties, or withdrawing the amounts from the Banks,
mentioned in the schedule therein on the ground that the said properties were bequeathed to him
under the will dated 11-1-1998 by Muni Narayanappa. The learned single Judge made an order
on the said application on 18-6-1998 directing the Respondent therein (Anjanamma) to maintain
status quo in regard to the properties until further orders.

Subsequently, the said Anjanamma died on 11-12-1998 and the appellant herein filed an
application (IA VIII) for impleading himself as the respondent in Prob CP. 8/1998 in place of the
deceased Anjanamma, by claiming to be the legatee under the registered Will dated, 15-9-1998
of the said Anjanamma. He claimed that Anjanamma had bequeathed her properties described in
the schedule to her Will dated 15-9-1998 of the said Anjanamma. He claimed that Anjanamma
had bequeathed her properties described in the schedule to her Will dated 15-9-1998 to him and
his children and therefore he is one of the co-owners of the properties

Issues Raised:

1. Whether a bequest of a property under a Will is a transfer of the property;

2. Whether a direction to a party to maintain status quo in regard to a property, prohibits
him from making a testamentary disposition; and whether a Will made during the
operation of an order of status quo regarding a property, is void and non est insofar as the
bequest relating to such property.

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 JUDGEMENT

The learned single judge had ordered that the status quo of the properties should be preserved;
that the order should be passed on an appeal by the petitioner in Prob. C.P. 198/1998, requesting
that Anjanamma be informed that the properties referred to in the Schedule for that application
should not be alienated or encumbered. Therefore, according to the status quo order, the Court
had forbidden her to move or alienate the property in any way. Section 5 of the Transfer of
Property Act of 1882 describes a “transfer of property” as a transferral to one or more other
living persons by means of which a living person transfers property at present or in the future.
Regarding this concept, a legacy under a will is nothing more than a “lease of property in the
future.” Any potential transfer of the property was carried out by a voluntary act of 15-9-98,
bequeathing the property in favour of the appellant and his children, breaching the status quo
rule. Therefore her Will, as also the bequest of the property thereunder, are invalid.

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 ANALYSIS OF THE JUDGEMENT
Transfer of Property Act, 1882 (TP Act ‘) deals with transfers’ inter vivos’, that is, the act of a
living person, conveying property in the present or future to one or more living persons. The
provisions of the TP Act are inapplicable to testamentary successions, which are governed by the
Indian Succession Act, 1925. Section 2(h) of the Indian Succession Act defines `Will ‘as the
legal declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.5

According to section 5 of the Transfer of Property Act, 1882 6, the property must be conveyed by
one living person to another, “living person”, which includes not only human beings but also
companies, associations or bodies of individuals, whether incorporated or not. Both the
transferor and transferee must be living at the time of transfer because the act deals only with
‘inter vivos’ transfers. The act has given the right of conveying property to corporations,
companies, firms, etc., because they have been created by a fiction of law and are known as
juristic persons. Similarly, an idol or deity, which has been recognised as a juristic person, is
capable of holding property, but it is not a living person. The differences between a transfer and
a Will are well recognised. A transfer is a conveyance of an existing property by one living
person to another (transfer inter vivos).

On the other hand, a Will does not involve any transfer nor affect any transfer ‘inter vivos’ but is
a legal expression of the wishes and intention of a person regarding the properties that he desires
to be carried into effect after his death. In other words, a Will regulates succession and provides
for succession as declared by it (testamentary succession) instead of succession as per personal
law (non-testamentary succession). The concept of transfer by a living person is wholly alien to a
Will. When a person makes a will, he provides for testamentary succession and does not transfer
any property. While a transfer is irrevocable and comes into effect either immediately or on the
happening of a specified contingency, a Will is revocable and comes into operation only after the
death of the testator. Thus to treat a demise under a will as a transfer of an existing property in

5
Indian Succession Act, 1925 §2 (h)
6
Supra 2.

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future is contrary to all known principles relating to the transfer of property and testamentary
succession.

Bequeath of Property under Will is not Transfer of Property:

Transfers of property – Temporary injunctions that restrict the party to elect - bequeath of a
property will be performed during the time of pending temporary injunction - the validity of Will
- Held, a valid legacy of goods under Will property, as transfers under Will, is not made "inter
vivos" No Court has the authority to issue an injunction, even though it is an interim order,
prohibiting a person from exercising his right to make a will and thus control succession after his
death. A direction to a party to uphold the status quo regarding a property does not, however, bar
him from making a testamentary disposition regarding that property. The testator does not
change title or possession of a property, nor does he or she change the nature or situation of the
property, nor does he or she remove or add anything to it by making a Will. In other words, the
testator does not change the current state of affairs concerning the property by making a Will. As
a result, having a Will in respect of a property does not break an order of status quo in respect of
that property, and the testamentary disposition is neither invalid nor voidable.

The bar assumed that Section 59 is a permanent inability under personal law or a statute. It does
not apply to a provisional suspension imposed by a Court order. As a result, neither Section 59 of
the Indian Succession Act nor Section 30 of the Hindu Succession Act has any relevance. 7

Meaning of Status Quo:

While making an order to maintain the status quo, the court should endeavour to clarify the
conditions, in the context of which or subject to which, such direction is issued, as the words
status quo take contextual meaning and may give room for several different interpretations.

Taking illustrations as an example:

 Illustration (i): If a person puts up a construction in his site violating the set back
requirements and if the owner of a property approaches the court seeking an injunction
restraining the adjoining owner from proceeding with the construction in violation of

7
The Hindu Succession Act, 1956 § 30

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 building bye - laws and the court orders status quo, the order may mean that no further
construction shall be made and the construction shall be maintained in the same position
as on the date of the order.

 Illustration (ii): If a member of a joint family files an application seeking an injunction in

a suit for partition, restraining the kartha from alienating the joint family property and the
court grants an order of status quo, it may mean that the defendant should not alienate
the property.

 Illustration (iii): If a plaintiff seeks an injunction restraining the defendant from

harvesting a crop in the suit land and the court orders status quo, it may mean that
defendant should not harvest the standing crop.

 Illustration (iv): In a service litigation, if the employee seeks a direction to the employer
not to terminate his services and the court directs the defendant to maintain status quo, it
may mean that the defendant should not terminate the service of the employee.8

In the given case, the single learned Judge observed that execution of a Will by a Testator
devising his property amounts to execution of a document creating a new right, title or interest in
a property and therefore, execution of a Will violates the order of status quo. By executing a
Will, no right or title or interest is created in favour of anyone during the lifetime of the
deceased.

8
Bharat Coking Coal Ltd. v. State of Bihar, AIR 1988 SC 127

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 CONCLUSION
The Transfer of Property Act, 1882 administers transfers interivos, that is, the act of a living
person, conveying property in present or in future, to one or more living persons.

The provisions of the Transfer of Property Act are inapplicable to testamentary successions,
which The Indian Succession Act governs as held in the N Ramaiah v. Nagaraj S. The
complainant in probate [respondent herein] had requested letters of administration in relation to
Muni Narayanappa's alleged Will. Anjanamma, Muni Narayanappa's wife, challenged and
resisted this by claiming that she had inherited Muni Narayanappa's property. The appellant
appears to be the legatee in possession of the property alleged by the petitioner in Probate under
Muni Narayanappa's Will after her death. Since the appellant was not allowed to testify, there is
no one to resume Anjanamma's dispute. As a result, the appellant is a required participant in the
Probate proceedings.

Therefore, the appeal on probate was permitted by order dated January 6th, 1999, and the
respondent was adjured to pay the appellant the amount of Rs. 2,500.00 in costs.

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