ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

TRANSFER OF PROPERTY ACT

GENERAL CLASS TEST

TOPIC- CONCEPT of RIGHTS , DUTIES and

LIBALITES of SELLER and BUYER under
TPA

Submitted to Submitted by
Dr. Shally Victor Sadhvi Singh
Assistant Professor GK7930
Department of law 18BALLB33
Content TS Page No.
TABLE OF
Introduction 03

Meaning of sale 04

Elements of sale 04

Section 55 of transfer of property act 05

Rights and duties and libalites of seller 06

Rights of seller 06

Liabilities of seller 07

Rights of buyer 08

Liabilities of buyer 09

Conclusion 09to10

Bibliography 11
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of … any criminal charge against him.”

The international community proclaimed the Right to a Fair Trial to be a “foundation of freedom,
justice and peace in the world”.

The Right to a Fair Trial is recognized internationally as a fundamental human right and countries are
required to respect it. Different countries have developed different ways of doing this, but regardless
of how a particular legal system operates, the principles below are core to all fair justice systems and
they all form part of the Right to a Fair Trial.

The right to fair trial is an essential right in all countries respecting the rule of law. The essential
ingredients for a fair and just trial must include a competent , neutral and detached judge ; the
absence of any intimidation of witnesses and equal legal representation , such as a right to counsel for
criminal defendants.

Thus, in a democratic society even the rights of the accused are sacrosanct, though accused of an
offence, he does not become a non-person. In the leading case of Kishore Singh Ravinder Dev v. State
of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have
made elaborate provisions for safeguarding the rights of accused with the view to protect his
(accused) dignity as a human being and giving him benefits of a just, fair and impartial trail.

FAIR TRIAL IN CRIMINAL PROCEDURE CODE OF INDIA

The Criminal procedure code provides that in all criminal prosecutions, the accused has a right to have
the assistance of a counsel and the Criminal procedure also requires the court in all criminal cases,
where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the
State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted,
presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is
denied no necessary incident of a fair trial. It is equally true that the absence of fair and proper trial
would be violation of fundamental principles of judicial procedure on account of breach of mandatory
provisions of Section 304 of CrPC.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of the
accused in a trial in which he was not provided legal aid would be set aside as being violative of
Article 21 of the Constitution.

Section 304 in The Code of Criminal Procedure, 1973 provides Legal aid to accused at State expense in
certain cases-

Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where
it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall
assign a pleader for his defense at the expense of the State.
The High Court may, with the previous approval of the State Government, make rules providing for-

The mode of selecting pleaders for defense under sub- section (1);

The facilities to be allowed to such pleaders by the Courts;

© the fees payable to such pleaders by the Government, and generally, for carrying out the purposes
of sub- section (1).

The State Government may, by notification, direct that, as from such date as may be specified in the
notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials
before other Courts in the State as they apply in relation to trials before Courts of Session.

Section 169 of Code of Criminal Procedure provides that if upon investigation it appears to office in
charge of police station that there is no sufficient evidence is available against the accused, such
officer shall release him by taking bond and when so required present him before magistrate for the
trial.

Section 207 provides supply of copy of police report and other documents to the accused.

Presumption of innocence

“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to the law.” ICCPR Art. 14(2)

A fundamental element of the right to a fair trial is that every person should be presumed innocent
unless and until proved guilty following a fair trial. This is why the responsibility falls on the state to
prove guilt and to discharge the presumption of innocence.

Due to the presumption of innocence, a person cannot be compelled to confess guilt or give evidence
against him/herself. It is for the state to produce evidence of guilt, not for the defendant to prove
innocence. In general, therefore, a suspect’s silence should not be used as evidence of guilt.

Because of the serious consequences of conviction, the state must prove guilt to a high standard. If
doubt remains, the defendant must be given the benefit of the doubt and cleared because the state’s
“burden of proof” has not been met.

Given the massive human impact of criminal proceedings on defendants, and the presumption of
innocence, trials should take place without undue delay. It would be unfair to allow states numerous
attempts to try to secure a conviction. If a case goes to trial and guilt is not proved, unless exceptional
circumstances exist, the person should not be tried again. This requires the state to do the job of
prosecution properly in the first instance.

The presumption of innocence is why, before conviction, any restrictions on a suspect’s basic rights,
for example the right to liberty, should only be imposed where absolutely necessary. People awaiting
trial have not been convicted of any offence and many will ultimately be cleared.

In Kali Ram v. State of H.P . the Supreme Court observed “it is no doubt true that wrongful acquittals
are undesirable and shake the confidence of the people in the judicial system, much worse; however
is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent
person are far more serious and its reverberations cannot be felt in a civilized society.” It is the duty
of the prosecutor and defense.

Open court of Justice

Justice must not only be done, it must also be seen to be done. This is one reason why, except in rare
cases, people are entitled to a public hearing. Open Justice enables the public to see how justice is
administered and by subjecting it to public and press scrutiny, safeguards the fairness of the trial. This
is also why people are entitled to a reasoned judgment which has been made public.

Open Justice requires people to be informed of the reasons for their arrest and any pretrial detention
(to safeguard Liberty). They must also be given information on their rights as a suspect. Without this
information, conveyed in a language the person understands, rights that exist in law are illusory in
practice.

People should be told what they are being prosecuted for and shown the evidence against them, in a
language they understand. Without this information, a person would not have a Fair Chance to
Present a Defense, for example by gathering evidence to counter claims made against them or
providing alibi evidence.

The Right to a Fair Trial also requires that people charged with offences be allowed to attend court
and to participate effectively in the trial. This enables the court to interact with them and allows the
person to hear and respond to the prtosecution case. Defendants are entitled to give evidence and,
except in exceptional cases, are also entitled to call witnesses and cross-examine prosecution
witnesses.

Section 327 provides Court to be open-

 The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence
shall be deemed to be an open court to which the public generally may have access, so far as the
same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry
into, or trial of, any particular case, that the public generally, or any particular person, shall not have
access to, or be or remain in, the room building used by the court.

Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence
under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code
(45 of 1860) shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the
parties, allow any particular person to have access to, or be or remain in, the room or building used by
the court.

Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or
publish any matter in relation to any such proceedings, except with the previous permission of the
court.

A fair chance to present a defense

A person charged with a criminal offence faces the overwhelming power of the state. The Right to a
Fair Trial therefore requires that the defendant be given a Fair Chance to Present a Defense in order
to counteract this imbalance. This requirement for “equality of arms” is inherent to the Presumption
of Innocence and the Rule of Law.

Access to a lawyer is crucial to this and this right starts from the point of arrest and through the trial
itself. People need access to legal advice so that they can understand the case against them and have
a Fair Chance to Present a Defense. If a defendant has the means to pay, he/she should be able to
choose their own lawyer. If the person cannot afford to pay for their own lawyer, where the interests
of justice require, the state should provide free legal assistance.

Section 41(D) provides every arrested person has a right to meet an advocate of his choice.

A person facing criminal charges must have the time and facilities to prepare a defense. This right
exists at all stages of the proceedings and encompasses the right to documents, files, and information
as well as a guarantee of confidential communication with counsel (see Open Justice). Although
undue delays in criminal proceedings often contradict the Right to a Fair Trial, fast-track trials can also
deny people a Fair Chance to Present a Defense.
Section 50 provides every arrested person has right to information about grounds of his arrest and
police officer acknowledge him that he has right to bail.

Open Justice and should be given the chance to make a statement. Except in exceptional
circumstances, people must also be given the right to call witnesses and examine or have examined
witnesses in the same manner as the prosecution.

Evidence to be taken in the presence of accused

As a logically corollary of sections 228, 240, 246 and 251 (where the particulars of the offence have to
be explained to the accused person) it is also imperative that in a trial the evidence should be taken in
the presence of the accused person. Section 273 of the Code is significant in this regard which
provides that all evidence taken in the course of the trial shall be taken in the presence of the
accused. This section provides for exception to this rule that if the personal attendance of the accused
is dispensed with the evidence shall be taken in the presence of his pleader. The right created by this
section is further supplemented by section 278, which, inter alia provides that whenever the law
requires the evidence of a witness to be read over to him after its completion, the reading shall be
done in the presence of the accused, or of his pleader.

These provisions enable the accused person to prepare his arguments for rebuttal of such evidences.

If any evidence is given in a language not understood by the accused person, the object of section 273
will not be fulfilled; therefore to avoid this difficulty section 279 casts a mandatory duty on the court
that whenever any evidence is given in any language not understood by the accused, it shall be
interpreted to him in open court in a language understood by him. But non-compliance with this
provision will be considered as a mere irregularity not vitiating the trial if there was no prejudice or
injustice caused to the accused person.

Trial in the presence of the accused

The general rule in criminal cases is that all inquiries and trials should be conducted in the presence of
the accused person. The underlying principle behind this is that in a criminal trial the court should not
proceed ex parte against the accused person. It is also necessary for the reason that it facilitates the
accused to understand properly the prosecution case and to know the witnesses against him so that
he can check their truthfulness in a later stage. Though the Code does not explicitly provide for
mandatory presence of the accused in the trial but it can be indirectly inferred from the provisions
which allow the court to dispense with the personal presence of the accused person under certain
circumstances.
In the case of H.R. Industries v. State of Kerala , the Kerala High Court very beautifully stated that the
circumstances in which the personal presence of the accused person could be done away. It was
opined that:

“In cases which are grievous in nature involving moral turpitude, personal attendance is the rule. But
in cases which are technical in nature, which do not involve moral turpitude and where the sentence
is only fine, exemption should be the rule. The courts should insist upon the appearance of the
accused only when it is his interest to appear or when the court feels that his presence is necessary
for effective disposal of the case. When the accused are women labourers, wage earners and other
busy men, court should as a rule grant exemption from personal attendance. Court should see that
undue harassment is not caused to the accused appearing before the court.”

CASE LAWS

D.K.Basu vs. State of West Bengal (1997) 1 SCC 216

In view of the increasing incidence of violence and torture in custody, the Supreme Court of India has
laid down 11 specific requirements and procedures that the police and other agencies have to follow
for the arrest, detention and interrogation of any person. These are:

Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and
name tags, and details of interrogating police officers should be recorded in a register.

A memo of arrest must be prepared at the time of arrest. This should:

Have the time and date of arrest.

Be attested by at least one witness who may either be a family member of the person arrested or a
respectable person of the locality where the arrest was made.

Be counter-signed by the person arrested.

The person arrested, detained or being interrogated has a right to have a relative, friend or well-
wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the
person to be informed has signed the arrest memo as a witness this is not required.

Where the friend or relative of the person arrested lives outside the district, the time and place of
arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should
be done by a telegram through the District Legal Aid Authority and the concerned police station.
The person arrested should be told of the right to have someone informed of the arrest, as soon as
the arrest or detention is made.

An entry must be made in the diary at the place of detention about the arrest, the name of the person
informed and the name and particulars of the police officers in whose custody the person arrested is.

The person being arrested can request a physical examination at the time of arrest. Minor and major
injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as
well as the arresting police officer. A copy of this memo must be given to the person arrested.

The person arrested must have a medical examination by a qualified doctor every 48 hours during
detention. This should be done by a doctor who is on the panel, which must be constituted by the
Director of Health Services of every State.

Copies of all documents including the arrest memo have to be sent to the Area Magistrate for his
record.

The person arrested has a right to meet a lawyer during the interrogation, although not for the whole
time.

There should be a police control room in every District and State headquarters where information
regarding the arrest and the place of custody of the person arrested must be sent by the arresting
officer. This must be done within 12 hours of the arrest. The control room should prominently display
the information on a notice board.

These requirements were issued to the Director General of Police and the Home Secretary of every
State. They were obliged to circulate the requirements to every police station under their charge.
Every police station in the country had to display these guidelines prominently. The judgment also
encouraged that the requirements be broadcast through radio and television and pamphlets in local
languages be distributed to spread awareness.

Failure to comply with these requirements would make the concerned official liable for departmental
action. Not following these directions constitutes a contempt of the Supreme Court, which is a serious
offence, punishable by Imprisonment and fine. This contempt of court petition can be filed in any High
Court.

These requirements are in addition to other rights and rules, such as:

The right to be informed at the time of arrest of the offence for which the person is being arrested.
The right to be presented before a magistrate within 24 hours of the arrest.

The right not to be ill-treated or tortured during arrest or in custody.

Confessions made in police custody cannot be used as evidence against the accused.

A boy under 15 years of age and women cannot be called to the police station only for questioning.

Justice and Liberty” is the trinity of fair trial recognised in the administration of justice of India where
the affluent and the “lowly and lost” have the equality of access to justice in the administration of
justice in general and the criminal justice system in particular. This fundamental principle of fair trial is
the backdrop of the International Covenants, and enjoined in the Constitution of India as well as the
criminal laws devising the criminal justice system of India. The beauty of the principles enshrined lies in
the fact that much matter is decocted into small words. The thrust is imperative to means (criminal
procedures) which must be trustworthy in order to have just ends.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader for the defence of the
accused at the expense of the state provided he is unrepresented and the court is satisfied that he has
no sufficient means to engage a pleader. The selection of such pleader, the facilities to be given to him
by the court and his remuneration are to be governed by the rules that may be framed by the High
Court in this regard with previous approval of the State Government. This facility also extends to any
class of criminal trials before other courts as indicated earlier to try criminal cases in the State as it
applies in relation to trials before Courts of Sessions.