Transfer of Property Act 1882
property by a person after his death
Transfer by act of parties
 Transfer b/w two living persons
 Also called transfer inter vivos
 Transferor - Transferee
 Eg: Sale, gift
Transfer by operation of law
 Transfer under will, inheritance, by order of
court
 Transferor = law = not a living person
 Governed by personal laws
o Eg: Hindu and muslim law of will and
inheritance
 Governed by order of court under CPC
Before 1882
 Some provision on (existed)
o Transfer by operation of law: personal
laws for wills(testamentary),
inheritance (intestate): (immovables)
o Transfer of movable by act of parties
 No definite law for transfer of immovable
parties by act of parties
 Anglo Indian courts used principles of equity,
justice and good conscience as prevailed in
England
o Wenever there s no specific law, this
principle is invoked
 Applying English equity to Indian cases:
o ill-fit bcos socio-economic situation of
india is different
o different interpretation : judges
decision not uniform, case law r
conflicting n confusing
 a clear uniform law for transfer of immovable
property urgently required
1882: TP act came into existence
 a uniform law came into existence
 also completed the CODE OF CONTRACT
 1872 : Indian Contract Act
 A transfer is fundamentally a contract.
o A Contract to transfer a immovable
property
 CODE OF CONTRACT includes
o Indian contract act 1872
o Personal laws on wills, inheritance (by
operation of law)
o TP act 1882 (inter vivos)
NB:
1872 Indian Contract Act
1882 Transfer of Property Act
Will/Testament: legal declaration of transfer of
 One execute the will : Legator/ Testator
 One in whose favour will is made:
Legatee/Testatrix
 Testamentary Transfers r governed by Indian
succession Act
Legator-----> Legatee
Testator ------> Testatrix
Propositus: the person from whom line of descent is
traced
 The person proposed.
Devolution of property by inheritance
 Receiving person: legal heir
Devolution of property by will
 Receiving person: Legatee
SCOPE OF THE TP ACT
Limited Scope:
 Not a complete CODE OF TRANSFER OF
PROPERTY
 Transfer inter vivos only dealt
 Territorial limitation.
o Not in Punjab
o Transfer of immovable property by act
of parties in Punjab is regulated by
Principle of equity, justice, good
conscience
o Namdeo v. Narmadabai: While deciding
a case, the court normally follows the
provision of the TP act in the name of
equity, justice, good conscience.
o Substantive law/provisions of TP act are
nothing but statutory recognition of
principle of equity.
o Technical rules of procedure in TP act:
not applicable
Not exhaustive
 Not complete law on all kinds of transfers in
India
o Several modes/kinds of transfer
o Several kinds of property
 The act doesn’t incorporate rules for all kinds
of transfer of property of every kind
 Preamble of TP act:
o Object is “to define and amend parts of
pre existing law of transfer of property
by act of parties”
o Not consolidating all laws on transfer of
property in india
 Even wrt Transfer by act of parties
o Act is not exhaustive
o Several allied matters : no detailed
rules.
 o Eg: mortgage (little covered), easement
rights(TP act not applicable)

Mainly immovables only

 TP act : main immovables only

 Transfer of movables: Sales of Goods act 1930
 However, TP act provides basic rules (general
principles) for transfer of property irrespective
of their kind
o It applies to movables too
o Chapter 2: S.(5-37) TP act: applies to
movables + immovables
o S.(38-53A): only immovables.
 Sale, lease, mortgage, charges:
o only immovable
 Gift, exchange
o Movables + immovables
Muslim law
 S.2 of TP act:
o If there is a provision in TP act against
Muslim law, Muslim law will prevail
 Eg 1: S.14 of TP act: Rule against perpetuity
o Not applicable to muslims
o Muslim Family-waqfs/ Waqf-alal-aulad
 Eg 2: S.129: Gifts
o Not applicable to muslims
o Gifts r goverened by muslim law of Hiba
 Note: only chapter 2 and gifts are not
applicable to Muslims
o Other provisions on sale, lease,
mortgage etc applicable
Saving certain incidents and rights
 Constitution of Property = nature of property
o Provisions of TP act cant be applied to
change the basic nature of a property
itself
 Act saves certain property rights from the
mischief of this enactment
o Eg: Right to partition of immovable
property is an incident of property but
this right is not affected by the act
o A valid partition can be made orally.
o Partition rights: permissible right of
every co-owner of a joint property. It is
naturally attached to a property
o Pre-emption right
Incident= things naturally attached to
No Retrospective effect but conditions
S.2(c): The Rights , liabilities wrt a property which
existed before the commencement of the TP act remain
unaffected.
General rule: Unless a provision says it is applicable
retrospectively it is not so.
Eg: if a mortgages executed before the commencement
of this act was valid without attestation, it does not
become invalid for want of attestation now
But Generally the Rule of prospective operation of a
new act is applicable only to substantive rights n
liabilities.
In the matters of procedure, TP act may apply
retrospectively.
NB:
Prospective effect : rights and liabilities (substantive
part)
Retrospective effect: procedures
Rights , liabilities and relief are different from procedure
for obtaining them .
S.2(c):
 saves the right and liabilities tat already vested
 doesn’t save procedure to be followed for
enforcing such pre-existing rights.
 Murali Dhar v. Parsharam : In mortgage
executed before this act, right of the mortgagee
for sale of mortgage property is substantive
right. It is saved. But to enforce this right, the
procedure to file suit will be as per the TP act
When there is a General Act and Special Act, Special act
will prevail over General Act

Appertains to = applicable to General Act :TP act 1882

Latest amendment in TP act Special Act: Karnataka SC And ST (Protection of Transfer

of certain lands) Act 1979
 2002

Saves right, liability. And also the relief wrt the right and
liability.
S.3 of TP Act: Interpretation Clause
Meaning of “attached to the earth”
 Rooted in earth.
o Eg: tree, shrub
 Imbedded in the earth
o Eg: Walls, building
 Attached to wat is so imbedded for the
permanent beneficial enjoyment of that to
which it is attached.
Imbed = embed: fix (an object) firmly and deeply in a
surrounding mass
Meaning of “Actionable claim”
 Claim to any debt
 More research needed
Meaning of “a person is said to have notice”
 a person is said to have notice of a fact
o when he actually knows that fact (or)
o when he would hav known it
 means: he didn’t know only
bcos of wilful abstention to
know it or gross neglience
Meaning of “Immovable property”
 S.3 of TP act: not clear
o Immovable property excludes
 Standing timber (tree meant to
be cut)
 Growing crops
 Grass
 S.3(26) of General Clauses Act 1897 : not
complete
o Immovable property includes
 Land
 Benefits to arise out of the land
 Things attached to the earth
o Things attached to earth
 Not defined in General Clause
Act
 But defined in TP act 1882
 Indian Registration Act 1908 also define
immovable property
Complete definition of Immovable property =
S.3 of TP act + S.3(26) GC act + Indian Registration Act
Land
 Means ”surface of earth”
 It includes
o On(upon) the surface of earth
o Under the surface of earth
o Above the surface of earth
 On/upon the surface of earth
o Anything on the land, so long as it is
NOT removed, shall be part of land. It is
an immovable property
o Eg: soil, mud on the earth, house,
pond, river
o Water collected in a pit or pond
o River : though seems moving, still on
the surface of earth.
 Under the surface of earth
o Sub soil, minerals, coal, gold,
underground stream of water
o Immovable property
 Above the surface of earth
o Space which above the land is part of
land and is immovable property
o Space: from the surface of earth to sky
o View the space as a thing place on the
surface of earth.
Benefits arising out of the land.
 If u have a right over a land, that right gives u
certain benefits. Tat right is called beneficial
right or beneficial interest.
 Interest = right
 The right/ beneficial right/ beneficial interest in
that property is a intangible/ incorporeal
property
o Intangible immovable property
o Eg: Right of way exercised on land
o right to use a land under lease/ tenancy
o right of a tenant to live in the house of
landlord is an immovable property of
the tenant
o right to ferry
o right to fishery
o rt to collect lac, leaves
o debt secured by mortgage of
immovable property
o rent from tenanted property
o Rt to profit a prendre
o
 Such benefits cannot be severed from the land
and are incidents to it. (incidental to it)
NB:
Right to Profit a prendre
 Right of taking
 Rt to take from the land owned by somebody
else
  In a profit-a-prendre, one has permission to
enter the land, not to enjoy it, but to
take/remove something from the land.
 Eg: rt of pasture, rt to mining
 Need to do research wrt easement*
 It is an immovable property
Things embedded in the earth
 embed: fix firmly in earth
  embedded in earth = annexed to earth
 eg: wall, building, electric poles
 part of land
 immovable proprty
 they r dug deep n fixed permanently
 where things r just placed ON the surface
without any intention to make them part of the
land, they r not immovable property even if
they appear to be fixed in the land
o eg: anchor, road roller , heavy stone
placed on land may go 2-3 feet deep
into earth due their weight. They r not
embedded. They r not things attached
to earth
 whether a thing is embedded or simply placed
on earth depends on
o whether it is intended to be part of the
land or not
o such intention can be inferred from
degree, mode and purpose of
annexation
o eg: an anchor which is fixed to ground
to hold a ship is not immovable
property but the same anchor fixed
firmly in land to hold a suspension
bridge is immovable property
 “Intention of permanent annexation”
 With permanent annexation, the objects
become part of land and lose their separate
identity.

Degree, mode and intention of annexation

 If a thing is so annexed to land that it cannot be

removed from its place without great damage
to the land, it should be regarded as Annexed in
perpetuity. Tat is a immovable property
 Leigh v. taylor : Tapestry attached to a house:
can be removed without damaging the house. It
is a movable property (Tapestry : think designer
cloth)
 Wiltshear v. Cottrell: a hut which merely rests
by it won weight on earth is considered
movable property

“Non- Obstante”

 a latin word for “notwithstanding anything

contained”
 Non obstante clause
 It means this clause empowers the legislation or
a provision, in which the clause is there, has
overriding effect over any other provisions
contrary to this under the same law or any
other law