TRANSFER OF PROPERTY,

WHETHER MOVABLE OR
IMMOVABLE SS5-37
 I. General provisions
 2. Restrictions.
 3. Transfer for the benefit of unborn person.
 4. Transfer to a class.
 5. Vested interest.
 6. Contingent interest.
 7. Conditional transfer.
 8. Election.
 9. Apportionment.
S.5 Definition of Transfer of
Property
 Transfer of Property means
an act by which a living person conveys
property, in present or in future-
(a) to one or more other living persons; or
(b) to himself; or
(c) to himself and one or more other living
persons.
 here “living person” includes a company or
association or body of individuals. (1929).
 Conveyance means the property must
be handed over to other person.
 Conveyance of property may be effected
in one of the ways i.e., by sale,
mortgage, lease, exchange or gift.
 Conveyance of property to corporations,
companies, firms, etc., as they have
been created by fiction of law and are
known as juristic persons.
 Transfer in present or in future means
that the transferor may transfer the
property either with immediate effect or
to be effective from future date i.e.,
vesting of property is postponed to a
future date.
 A property is having a bundle of rights.
 When a property is transferred whole
rights may be transferred or rights
partially only gets transferred.
V.N.Sarin v. Ajit Kumar Poplai AIR
1966 SC 432: (1966) SCR 349
 Brief Facts: The disputed property belongs to
the joint family property consisting of
Respondent 1, his brother and their father R 2.
 The appellant is the tenant in the disputed
property and the property was situated at Civil
lines, Delhi at a monthly rental of Rs.80.
 The three members of this undivided Hindu
family partitioned their coparcenary property
and the tenant property has come to the
Respondent 1.
 After got this property through partition
R1 applied to the Rent Controller for the
eviction of the appellant on the ground
that he required the premises bona
fide for his own residence and that of
his wife and children who are dependent
on him.
 To this application he impleaded his
father also as R2.
 Issues: The appellant contested the claim of R1
on 3 grounds.
1. He urged that R1 was not his landlord, as he
was not aware of the partition and did not
know what it contained.
2. Even if R1 was his landlord he did not
require the premises bona fide, so the
requirements of S.14(1)(e) of the Delhi Control
Act, 1958 were not satisfied.
3. If R1 got the property in suit by partition, in law
it meant that he had acquired the premises
by transfer within the meaning of S.14(6) of
the Act and the provisos of the said section
make the present suit incompetent.
 Observations:
 The Rent controller and the Tribunal
decided the first question in favor of the
R1 by holding that he was the
landlord of the premises.
 In regard to the premises needed for
bona fide purposes, the Rent Controller
did not agree with the R1 hence his
application for eviction was failed.
 But the Rent Control Tribunal came to a
different conclusion and was allowed
the application for the eviction.
 Now the bone of contention was that
whether the partition of the coparcenary
property among the coparcenars could
be said to be an acquisition by transfer
u/s 14(6) of the Act.
 S 14(1) of the Act provides for the
protection of the tenants against eviction.
 u/s 14(1)(e) the landlord may evict the
tenant if the premises let for residential
purposes are required bona fide by the
landlord for occupation in this case this
contention was not challenged before this
Court.
 The High Court held that where property
originally belonging to an undivided
Hindu family is allotted to the share of
one of the coparceners as a result of
partition.
 It cannot be said that the said property
has been acquired by such person by
transfer hence S.14(6) cannot be
invoked by the appellant.
 If the appellant proves that the
property has been acquired by the R1
then he cannot be evicted for 5 years.
 As per the appellant counsel when an
item of property belonging to the
undivided Hindu family is allotted to the
share of one of the coparceners on
partition, such allotment amounts to
transfer.
 The court observed that community of
interest and possession are the
essential attributes of the
coparcenary property.
 In the partition they renounce their
right in respect of the other
properties;
 They get exclusive title to the
properties allotted to them and as a
consequence they renounce their
undefined right in respect of the rest
of the property.
 Every coparcener has an antecedent
title to the said property though its
extent is not determined until
partition takes place.
 In Girja Bedi v. Sadashiv Dhundiraj the PC held
that
 “partition does not give coparcener a title or
create a title in him; it only enables him to
obtain what is his own in a definite and specific
form for purposes of disposition independent of
the wishes of his former co-sharers.”
 The appellant counsel argued on the
grounds of Ss 53 and 5 of the TPA for the
word “transfer”.
 His argument was about S 17(1)(b) of the
Registration Act that a deed of partition is held to
be a non-testamentary instrument -
“which purport or
operate to create,
declare, assign, limit or extinguish,
whether in present or in future,
any right, title or interest,
whether vested or contingent,
of the value of one hundred rupees and upwards,
to or in immovable property;”
.
 In respect of the property covered by
the Registration Act, 1908 of and for
S 53 of the TPA partition is held to be
a transfer of property,
 then there is no reason why the
property should not be held to be an
acquisition of property by transfer
within the meaning of S.14(6) of the Act
 To satisfy S.14(6) of the Rent Control
Act,1958 the person should acquire the
premises by transfer and that
necessarily assumes that the title to the
property which the purchaser acquires
by transfer did not vest in him prior to
such transfer.
 But in the case at hand in regard to
undivided Hindu family and on
partition it falls to the share of one of
the coparceners of the family.
 Conclusion: There is no doubt a
change of the landlord of the said
premises, but the said change is not of
the same character as the change which
is effected by transfer of premises to
which this case is contesting upon.
 Here landlord is not stranger to the
property.
 Therefore the appeal fails and is
dismissed with the costs.
Kenneth Solomon v. Dan Singh
Bawa AIR 1986 Del.1
 Brief Facts: Dr.(Mrs.) C.L.Sury was lessee of a
property situated at Babar Road, New Delhi under the
respondent. The rent was Rs.37.82
 She died in 1967.
 The landlord brought an application against the
present appellant for recovery of possession of the
tenancy premises in 1968.
 The eviction was claimed u/s 14(1) proviso (b) of the
Delhi Rent Control Act,1958 on the allegations that
the tenant had left no heir and had in her lifetime
parted with the possession of the premises
without the written consent of the landlord.
 The appellant defended the claim on the
following grounds:
(1) The contractual tenancy in favor of the
deceased had not been determined.
(2) The tenancy rights devolved on him
and another person under a “will”.
(3) In case it was held by the court that he
could not inherit the tenancy rights
under the “will” the same devolved on
him as an heir being deceased’s
nearest kinsman.
 The Addl Rent Controller came to the
conclusion that the tenancy rights had not been
bequeathed by the deceased under the will.
 But inherited those rights as an heir and
therefore there was no parting with the
possession.
 On the appeal the Tribunal reversed the
decision and held that the tenant had
bequeathed the tenancy rights in favor of the
appellant under the “will” which act amounted
to parting with possession of the premises.
 Hence ordered for an eviction.
 Issues:
(1) Whether the tenancy rights devolved
under the “will” or not?
(2) Whether the tenancy rights devolved
through the “inheritance” or not?
(3) Whether the act of bequeathing the
tenancy rights by making a will would
not amount to parting with possession
of the premises within the meaning of
the provisions contained in S.14(1)
proviso(b).
 Observations: Firstly we will examine
the will deed executed by the deceased
in its own terms
 “ I hereby bequeath, give and devise
all my movable and immovable
properties, whatsoever, however, and
wheresoever situated at the time of
my death including all the monies which
may be left over after paying my funeral
and Monument Expenses and for my
Dogs expenses to be equally divided by
my trustees among my two nephews”.
 I agree with the Tribunal that the “will”
does not indicate any intention of the
testator to exclude the tenancy rights.
 On the other hand the residuary clause
referred to above shows that the
intention was to give all her movable
and immovable properties except the
properties for which a specific provision
was made.
 The tenancy rights, therefore devolved
on the appellant under the ‘will’.
 S.14. Protection of tenant against
eviction:
 Provided that the Controller may, on an
application made to him in the
prescribed manner on one or more of
the following grounds only, namely-
 (b) that the tenant has sublet, assigned
or otherwise parted with the
possession of the whole or any part
of the premises without obtaining the
consent in writing of the landlord”
 “Parted with possession” means giving the
legal possession acquired under the lease
to a person who was not a party to the
lease agreement, which means divesting
himself not only of physical possession
but also of a right to possession.
 “Will” as defined u/s 2(h) of the Indian
Succession Act, that declaration of the
intention of the testator w.r.t his property
carried into effect after his death.
 “Will” come into effect only after the
testator’s death.
 Conclusion: “Transfer of property” according to
S.5 of the TPA exclude transfer by will, for a
will operates after the death of the testator.
 The act of making a “will” in itself would not
attract the provisions contained in proviso(b).
 No land lord can claim eviction, during the life
time of the tenant, reason being the “will” can
be revoked at any time, but after the death it
will come into effect hence the property parted
with possession without approval of the
landlord.
 Hence eviction allowed and appeal dismissed.
 Mohar Singh v. Devi Charan
(1988) 3 SCC 63 : AIR 1988 SC
1365
 Brief facts: The first respondent was a tenant of
two adjacent shops under a single lease obtained
from 2 co-owners.
 The co-owners through an intermediary alienation
the property transferred to the appellant and to
some other person.
 The appellant became exclusive owner of one of
the shops and initiated the proceedings for the
eviction u/s 21 of U.P.Act, 1972 on the grounds of
his own bona fide need.
 The prescribed authority ordered for release of
the premises and made an order granting
possession.
 The appeal was made to Muzaffarnagar District
Judge and it was dismissed by that Judge.
 Then the appeal made to the High Court and it
was accepted further stayed the eviction.
 Issue: Whether the tenant can be evicted by
only one of the co-owner or not?
 Observations:
 The findings as to the bonafides and
reasonableness of the requirement of the
appellant stand concluded by the concurrent
findings of the statutory authorities.
 Indeed that was not also the ground on which
the order of eviction was assailed before the
High Court in the writ petition.
 It is a trite proposition that a landlord cannot
split the unity and integrity of the tenancy and
recover possession of a part of the demised
premises from the tenant.
 S.109 of the TPA provides a statutory exception to
this rule and enables an assignee of a part of the
reversion to exercise all the rights of the landlord
in respect of the portion respecting which the
reversion is so assigned subject to the other
covenant running with the land.
 There is no need for a consensual attornment.
 The attornment is brought about by operation of
law.
 The limitation on the right of the landlord
against splitting up of the integrity of the
tenancy, inhereting in the inhibitions of his own
contract, does not visit the assignee of the
part of the reversion.
 There is no need for the consent of the tenant
for the severance of the reversion and the
assignment of the part so severed.
 As per the H.C. the contention that the
severance of the reversion and assignment
of that part of the reversion in respect of the
suit shop in favor of the appellant did not
clothe the appellant with the right to seek
eviction without the lessor joining in the
action;
 And that in claiming possession of a part of the
subject-matter of the original lease the
appellant was seeking to split the integrity
and unity of the tenancy, which according to
the 1st Respondent was impermissible in law.
 In general assignment affects a severance, and
entitles the assignee on the expiry of the term to
eject the tenant from the land covered by the
assignment.
 “Transfer” under s.5 read with s.109 of TPA
cannot be predicated of a partition as partition is
no “transfer”.
 It is true that a partition is not actually a
transfer of property but would only signify the
surrender of a portion of joint right in
exchange for a similar right from the other co-
sharer or co-sharers.
 Conclusion: Some decisions of the different High
Courts tend to the view that even a case of
partition is covered by S.109 of TPA even if this
section does not then apply the principle of the
section is applicable as embodying a rule of
justice, equity and good conscience.
 In the result this appeal is allowed.
 Hence the High Court decision set aside and
that of the District Judge, Muzaffarnagar
restored.
 In the circumstances of this case, there will be
no order as to costs.
 N.Ramaiah v. Nagaraj S.
AIR 2001 Kant.195
 Brief facts: The appellant was the brother of one
Anjanamma and she was the widow of one Muni
Narayanappa.
 The Respondent was a brother’s son of Muni
Narayanappa.
 The ‘R’ claims he got the disputed property executed by
the ‘Muni’ through a ‘will’ hence he filed probate for grant
of letters of administration in regard to a will dated 11-1-
98
 Anjanamma contested that the said “will” is a got up
document.
 She had succeeded to it as she is his sole legal heir.
 The ‘R’ filed an interim application seeking a temporary
injunction to restrain ‘A’ from alienating/encumbering the
properties or withdrawing the amounts from the banks.
 Directing the Anjanamma to maintain status quo in
regard to the properties until further orders.
 The learned single Judge made an order directing the
‘A’ to maintain status quo in regard to the properties
until further orders.
 Subsequently the ‘A’ died and the appellant herein filed
an application for impleading himself as a respondent in
place of ‘A’.
 He claimed that ‘A’ had bequeathed her properties
through a “will” to him and his children and therefore he
is one of the co-owners of the properties.
 Issues: 1.
1. Whether a bequest of a property under
a will is a transfer of the property or
not?
2. Whether a ‘will’ made during the
operation of an order of status quo
regarding a property, is void and non-
est or not?
 Observations: The learned single Judge,
accepting the objections, has dismissed the
application for impleading, holding that the Will
which was executed by ‘A’, in breach and defiance
of the order of status quo and therefore non-est
and of no legal consequence and will have to be
ignored.
 And that the appellant had no locus standi to apply
for impleading and was not entitled to come on
record and contest the proceedings for letters of
administration filed by the respondent
 The relevant portion of the order of the learned
single judge is:
“applicant’s learned counsel contended that the
status quo order only restricted alienations and its
his contention therefore that the order in question
does not come in the way of the parties executing
documents which is different from alienation.
In my mind, this is virtually legal hairsplitting;
When a Court passes an order directing the parties
to maintain status quo, the order is a blanket
prohibitory order whereunder the parties would be
precluded not only from effecting alienations or
changes but also of any related implications.
 The trial court has issued an order for the
maintenance of status quo it implies a prohibition
on the creation of a new right, title or interest
through the execution of any documents.
 If the need arises, it is open to the party to apply
to the Court either for vacating or modifying the
order or obtaining the sanction of the court for
doing any of the acts which the party desires to
undertake.
 S.5 of the TPA deals with transfer intervivos that
is the act of a living person conveys property, in
present or in future, to one or more other living
persons.
 As per the Respondent’s counsel a bequest
under a Will is nothing but a ‘transfer of property
in future’.
 In this case ‘A’ by executing a Will effected a
future transfer of the property, thereby violating
the order of status quo, therefore it is invalid.
 The “Will” is u/S.2(h) of the Indian Succession Act,
1929, that the legal declaration of the intention of
a testator with respect to his property which he
desires to carried into effect after his death.
 A “Will” does not involve any transfer, nor affect
any transfer intervivos, but is a legal expression of
the wishes and intentions of a person in regard to
his properties which he desires to be carried into
effect after his death.
 A “Will” regulates succession and provides for
succession as declared by it (testamentary
succession) instead of succession as per personal
law (non-testamentary succession).
 Under TPA the transfer is irrevocable and comes
into effect either immediately or on the
happening of a specified contingency.
 Wherein a “Will” is a revocable and comes into
operation only after the death of the testator.
 The appellant contention is that of an order of
status quo in regard to property did not bar the
execution of a will nor affect the validity of
bequest and he ought to have been permitted to
contest the case by coming on record.
 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.
 Will is revocable and comes into operation only
after the death of the testator.
 Thus to treat a devise under a will as a transfer
of an existing property in future, is contrary to all
known principles relating to transfer of property
and testamentary succession.
 By execution of a Will, no right or title or interest
is created in favor of any one during the life time
of the deceased.
 No Court has the power to make an order, that
too an interim order restraining an individual from
exercising his right to execute a will and thereby
regulate succession on his death.
 A direction to a party to maintain status quo in
regard to a party does not bar him from making a
testamentary disposition in regard to such
property.
 By making a Will the testator neither changes
title nor possession in regard to a property nor
alters the nature or situation of the property nor
removes or adds anything to the property.
 Therefore that making of a Will in regard to a
property does not violate an order of status quo
in regard to such property, and consequently
the testamentary disposition is neither void nor
voidable.
 Conclusion: It is evident that the order merely
directed ‘A’ not to alienate or convey the property
and did not prohibit her from executing a Will
making a testamentary disposition in regard to the
property.
 The appellant claims to be the legatee in possession
of the property which is claimed by the Respondent.
 If the appellant is not permitted to come on record,
there will be no one to continue the contest put up
by ‘A’.
 We, therefore, find that the appellant is a necessary
party to the proceedings for the probate initiated by
the Respondent.