PROPERTY LAW

Class refresher points

WEEK 1 (10th May – 13th May)

PREAMBLE:

WHEREAS it is expedient to define and amend ‘certain parts ‘of the law relating to the
transfer of property by act of parties;

Points:

 DOES NOT consolidate the law relating to all kinds of transfer

 only brought in uniform and clear law for transfer inter vivos thereby excludes
transfer by operation of law (ex- will, inheritance- were regulated by personal laws
and succession), order of court
 regulates transfer of immovable property between living persons (prior to this Act
the courts applied English law in the guise of principles of equity, justice and good
conscience)
 completes the law of contract as far as it relates to immovable property (contract act
dealt with movable property- now Sale of Goods Act and for immovable it was again
on case to case basis with principles of justice, equity and good conscience- also look
at sec 4 of TPA)
 commencement of TPA thus introduced a parallel law to the already existing
testamentary law and intestate transfers.
SCOPE OF THE ACT (sections 1 &2)
Even though TPA has been extended to the states which have merged in the territory of
India, it does not apply in Punjab (courts in Punjab may follow the provisions of the Act in
recognition of the principles of equity, justice and good conscience but cannot rely upon the
technicalities involved in the Act (Note- some sections have been declared to be notified in
municipalities in Punjab, Chandigarh and Haryana through their respective Muncipal Acts)
TPA is in the concurrent list Entry 6 allowing both parliament and state to make laws.
TPA is a territorial law (lex loci) which means it applies to all persons inhabiting a territory
irrespective of their personal status (unlike personal laws which is dependent on the person
concerned). However, section 2 indicates that Chapter II of the Act would not apply to
Muhammadans (ex- rules INCONSISTENT with Section 13 &14 of the Act by virtue of section
2 will continue to remain vaild). PLEASE NOTE: applies only if rule of Muhammadan law is
inconsistent OTHERWISE TPA is applicable. ( Hasan Khani v. Mohd. Rawther AIR 2008 1126
(ker)- held that deeds executed and accepted by the children as to no further claims in the
property was not hit by section 6).
Thus the scope of the Act is limited as it does not apply to all kinds of transfers of properties
and only transfer inter vivos besides sections 1 and 2 of TPA

 Not exhaustive
 Transfer of operation of law excluded
 Transfer mainly of immovable properties
 Muslim Law
 Saving of certain incidents and rights
 Territorial limitations

Kumar Gonsusab v. Mohd Miyan (2008) 10 SCC 153- Thr Act overrides personal laws relating to
transfer of property.. therefore unless the property transferred in accordance with the Act,
no right arises to claim enforcement of the right of pre-emption
Seth Ghasiram Seth Palliwal v. Smt. Kundanbai, AIR 1940 Nag.163- the object of the Act is not to
collect and consolidate all the laws of transfer of properties.
Sitalal Chandra v. Delanney (1916) 20 Cal.W.N.1158- though easementary rights are proprietary
rights, the TP Act is not applicable to easements (it’s dealt under separate legislation )
Arvind Kumar v. Govt of India (2007)5 SCC 745- transfer by order of court is transfer by
operation of Laa and has been held to include auction sales confirmed by the court.

WEEK 2 (17th May to 21st May)

INTERPRETATION CLAUSE

 Immovable property (General Clauses Act)

o Land (on the surface, above the surface, under the surface- rivers,
underground water, space, subsoil, minerals)
o benefits arising out of land and (intangible ex- lease, right of fishery- as river,
pond is immovable property, right to extract coal- fruits bearing trees like
palm/date trees are exclusively for the fruits)
o things attached to the earth (this is explained in sec 3 of TP Act)
i. embedded (structure permanently fixed- also intention to make it
part of the land- heavy objects by virtue of their weight may go deep
but not intention to fix so will not be immovable)
ii. things attached to embedded structures for permanent beneficial
enjoyment of the structure (doors, windows- again intention that the
fixtures are for permanent enjoyment)
 iii. things rooted in the earth (general rule is all trees, plants, shrubs are
immovable except- sec 3 cl(a) standing timber, growing crops and
grass)
Rule in Marshall v. Green- distinction between growing tress and standing
timber. If it continues to take nourishment from the land after transfer or if it
intends to be severed to be used for furniture, household repairs) Standing
timber- sometimes a question of fact- you decide if it is standing timber at
the time of transfer. Growing crops and grass even though rooted are
movable because their use is nothing except their produce (wheat, barley,
sugarcane) grass also since usually used as fodder. BUT a right to cut grass is
a right exercised upon the land (falls under benefits arising out of land) and
will be immovable. Also right to cut bamboo for a long period is benefit from
the land).

V.P.Pakrudheen Haji v. State Bank of India, AIR 2009 ker, 78- whether a thing is
embedded in the earth would depend on the fact whether the thing is intended to
be part of the land or not. Here the title deed assigned immovable property without
mentioning the house built on it, assignee obtained title to the house because things
attached to the earth go with it. jj

State of Orissa v. Titagghur paper Mills Co ltd, AIR 1985 SC 1293- bamboo trees that
are used in the making of houses or poles so held to be movable property

Moti Singh v. Deoki Singh, AIR 1936 pat 46- Fruit bearing trees are not standing
timber therefore immovable property.

Shanti Bai v. state of Bombay AIR 1958 SC532- held if a owner is interted in the
further vegetative growth of the tree then it is immovable but if it is intended to be
cut reasonably early then the tree is movable.

Bansidhar v. Sant Lal, (1887) 10 All 133- sugarcane held to be movable (growing
crops)

Misri lal v. Mozhar Hossein, (1886) 13 Cal262- Indigo held to be movable property
(same reason as above)

 Instrument under TPA excludes testamentary/will (as act is applicable only to

transfer between living persons)Instrument signifies transfer as well is proof or
evidence of transfer( ie., also shows that’s the transaction happened)
Lakshmamma v. Kameshwara, (1890)13 Mad.281- Instrument signifies the transfer
of the property as such and not only the written proof of transfer of the said
property.
 Attestation must be by 2 or more witnesses who must affirm that it wsa the
executant who signed the deed – this ensures authenticity of the document and also
that it was executed with free consent. Interested parties (ex- person who loans an
amount) may also be witnesses as they are not party to the contract). Whether
attestation is valid is a mixed question of fact and law.
Sunder Kuer v. Shah Udey Ram, AIR 1944 All 42- by attesting a document , the
attesting witnesses do not confirm that they have knowledge of the contents of the
document.

Dharamdas Mondal v. Kashi Nath, AIR 1959 Cal 243- A person who has been called
only to identify the executant and does not see him sign the deed cannot be treated
as an attesting witness.

Harish Kumar Chandra v. Bansidhar Mohanty AIR 1965 SC 1738- held that even
though money lender is an interested party he cannot be regarded as a party to the
contract and thus his attestation was held valid.

Abinash Chandra v. Dasath, AIR 1929 Cal 123- not only should the executant sig the
document in the presence of the attesting witness but the witness too should sign in
presence of executant.

Lala Kundan lal v. Mushrafi Begum, AIR 1936 PC 207- the executant was a
pardanashin lady who put her thumb impression sitting behind the curtain which
was seen by the witness. It was held to be done in the presence of the attesting
witness.

 Registration is a process through which a document is officially recorded (provisions

of Indian Registration Act,1908)

M. Ramkrishna Reddy v. Sub- Registrar, Bangalore, AIR 2000 Kant 46-once a

document is duly registered, the Registering office has no authority to modify or
delete and entries in any books of records relating to validity of the document except
where it relates to a clerical error.

 Actionable claims means unsecured money debt or a claim to beneficial interest in

movable property not in possession claimant- debt may be existent, accruing or
conditional. (example- arrears of rent, claim due under insurance policy)
Poothekka v. Annamali, AIR 1926 Mad,1173- claim for salary due in the next month
is an accruing debt and as such an actionable claim.