Property

11/12/22 10:08 PM

Section 3 - Movable/Immovable property

Concept of property; Definition of and distinction between movable and immovable property; Meaning of
“things attached to earth” and Concept of “Doctrine of fixtures”

1. Smt.Shantabai v. State of Bombay (Pg 1-6)

a. Timber = wood suitable for building houses, bridges , ships etc. whether on the tree or cut and
seasoned.
b. Standing Timber = it is in such a state that if cut it could be used as timber, and when it is in that
stage it must be cut reasonably early. If not the tree might otherwise deteriorate and that its
continuance in a forest after it has passed its prime might hamper the growth of young wood and
spoil the forest and eventually the timber market.

2. Bamdev Panigrahi v. Monorama Raj (Pg 28-35)

a. Defined what is movable/ Immovable

b. Test to determine movable/Immovable
i. What is the intendment, object and purpose of installing the machinery-
1) Whether it is the beneficial enjoyment of the building , land or structure, or
a) If machinery & Land or building belong to same person then it is presumed as
beneficial enjoyment of the entire building or land
2) The enjoyment of the very machinery
a) If owned by two different persons then it is presumed as exploit the benefit of the
machinery alone
ii. The nature of the property on which the machinery is installed
1) If the property is of temporary in nature such as tent or shed then his intention is for
enjoyment of the machinery only
2) If the property is of permanent nature then the intention is for enjoyment of the
property also
iii. The degree and manner of attachment or annexation of the machinery

3. Duncans Industries Ltd. v. State of U.P. (Pg 36-41)

a. Permanently Attached to Earth

b. Intention of party buying the property , if it is for setting up a business and not for sale then it is
considered as immovable property.
c. Court has to take into consideration of the intention of the parties. Also consider the intention of
the party who intend to alienating the machinery.

Meaning of transfer of property Sec 5

Meaning of ‘Transfer of Property’ under the Act; Transfer intervivos; Living person distinguished from
juristic person; Status of partition of joint family property

1. VN Sarin v. Ajit Kumar Poplai (Pg 71-75)

a. Partition is a transfer is not a transfer--- No , Partition is not a transfer.

i. As partition does not give him a title or create a title in him (as he is one of the owner) it
enables him to obtain what is his own in definite and specific form for purposes of
disposition independent of wishes of his former co-sharers
ii. In Coparcenary property community of Interest and unity of possession are essential
attributes
iii. partition really means that whereas initially all the coparceners have subsisting title to the
totality of the property of the family jointly, that joint title is by partition transformed into
separate titles of the individual coparceners in respect of several items of properties allotted
to them respectively.
b. If landlord acquires a property by transfer then he can not evict the tenant for a period of 5 years
from the date of such acquisition.

2. Kenneth Solomon v. Dan Singh Bawa (Pg 76-79)

a. Can "will" transfer tenancy rights --- No, in will the tenant will be parting with the property then
land lord can acquire his property.

i. The landlord can evict recover the possession of the property if the tenant has sublet ,
assigned or otherwise parted with the possession of the whole or any part of the premise
without obtaining the consent in writing of the landlord.
ii. "Will" is carried into effect after the death of the person , after death effect of vesting the
property subject matter of the will in the devisee. At that point of time it would have the
same effect as transfer of possession by sale or mortgage.
iii. The tenancy rights disposed under a will would vest in the devisee immediately on the death
of the testor.
iv. On death the contractual tenancy the suit premise comes into the hands of the heirs of the
tenant that is not an intentional or volitional transfer and such parting would not be
affected.(if it is by "will " then it is clearly volitional transfer without consent of the landlord)

3. Mohar Singh v. Devi Charan (Pg 80-82). (study once again)

a. Partition is not a transfer and the co-owners who has attained the ownership can evict the tenant

Section 6(a) and 43--What kind of property can be transferred

Transfer of “Spes Successionis”; Transfer by heir apparent; Chance of a relation obtaining a legacy on the
death of a kinsman; Comparison with fraudulent and erroneous unauthorized transfers; Doctrine of
“Feeding the grant by estoppel”; Status of bonafide transferee for consideration and without notice

1. Jumma Masjid, Mercara v. Kodimaniandra Deviah (Pg 87-93)

a. when a person transfers property representing that he has a present interest therein, whereas he
has, in fact, only a spes successionis, the transferee is entitled to the benefit of Section 43, if he
has taken the transfer on the faith of that representation and for consideration.

2. Kartar Singh v. Harbans Kaur (Pg 94-95)

a. Mother alienated sones property
b. Under Guardian & Wards act the estate of minor cannot be alienated unless a specific permission
in that behalf is obtained from the district court.
c. Section 43 feeds estoppel , the rule of estoppel by deed by transferor would apply only when the
transferee has been misled.
d. A void contract is a no contract.
e. This Court in the later part has made it clear that where the transferee knows as a fact that the
transferor does not possess the title which he represents he has, then he cannot be said to have
acted on it when taking a transfer. Section 43 would then have no application and the transfer
will fail under Section 6(1) of the Transfer of Property Act.

Section 10 and 11--Conditional Transfer

Transfers subject to a condition or limitation; Absolute and partial restraints on transfer; Exception in case
of lease and married women; Restrictions repugnant to interests created; General principles; Restrictions
for beneficial enjoyment of one’s own land; Positive and negative covenants

1. Rosher v. Rosher (Pg 96-97)

a. Before selling offer to one person for lowest prize if that person is not dead
b. Similar Prohibition of alienation during the lifetime of the widow.
c. It is concluded by the judge as an absolute restraint against sale during the life of the widow as
the price is like a throw away price (has to sell it to widow at 1/5 th of the price).

2. Muhammad Raza v. Abbas Bandi Bibi (Pg 98-102)

a. Whether such a partial restriction on alienation is so inconsistent with an otherwise absolute

estate that it must be regarded as repugnant and merely void.
b. Restriction is that she has to not alienate the property to stranger but only to family only
c. This restriction is said to be partial restriction but in K.Muniswamy v. K Venkataswamy it is said
that this kind of restrictions are now considered as contrary to justice, equity and good
conscience.

3. Manohar Shivram Swami v. Mahadeo Guruling Swami (Pg 103-104)

a. Transfer it into only Jangam Family only`

b. Covenant incorporated in the sale deed executed by the plaintiff cannot be said to be one
running with the land.
c. Hence the condition is void under Sec 10 of TPA

4. K. Muniswamy v. K. Venkataswamy, (Pg 115-118)

a. that Sec. 10 can have no application to family arrangement into which two or more persons may
choose to enter under which an absolute estate is created in favour of some parties and a limited
estate is created in favour of others.”
b. Section 10 of T.P. Act, applies to transfers, and family settlements are not covered by the
expression” transfer “occurring in the section.”
Therefore, a condition of the family settlement which prohibits alienation altogether is surely not
hit by S. 10, T.P. Act but creating, it is repugnant to public policy and would be invalid and
unforceable on general principles of law.”

5. Tulk v. Moxhay (Pg 119-120)

Section 13-18 --Transfer for the benefit of unborn persons

Creation of prior interests and absolute interests in favour of unborn persons; Rule against perpetuity;
Period of perpetuity; Rule of possible and actual events; Transfer to a class; Transfer when prior interest
fails; Directions for accumulation of income; Exceptions

1. Ram Newaz v. Nankoo (Pg 121)

2. Ram Baran Prasad v. Ram Mohit Hazra (Pg 122-127)
3. R. Kempraj v. Burton Son & Co (Pg 128-130)

Vested and Contingent interests (Secs. 19 and 21)

Definition of and distinction between vested and contingent interests

1. Rajeh Kanta Roy v. Shanti Debi (Pg 131)