ACTS AND RULES: OTHER ACTS

Abstract of the Transfer of Property Act, 1882

(Act No. IV of 1882)

An Act to amend the Law relating to the Transfer of Property by act of Parties.

1. Short title. This Act may be called the Transfer of Property Act, 1882.

3. Interpretation clause. In this Act, unless there is something repugnant in the subject or context,

"Immovable property". "Immovable property" does not include standing timber, growing crops or grass;

"Instrument". "Instrument" means a non-testamentary instrument;

"Attested". "Attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgment, of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;

"Registered" means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents;

"Attached to the earth" means

(a) rooted in the earth, as in the case of trees and shrubs;

(b) embedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached;

"Actionable claim". "Actionable claim" means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;

"A person is said to have notice" of a fact when he actually knows that fact, or when, but, for wilful>

Explanation I. Where transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in such property shall be deemed to have notice of such instrument, as from the date of registration or, where the property is not all situated in one sub-district or, where the registered instrument has been registered under sub-section (2) of Section 30 of the Indian Registration Act, 1908 (XVI of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired or of the property wherein a share or interest is being acquired is situated:

Provided that

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (XVI of 1908), and rules made thereunder;

(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under Section 51 of that Act; and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under Section 55 of that Act.

Explanation II. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Please Note:

The notice contemplated under Explanation I of Section 3 is not a notice in rem. Testamentary documents do not come within the purview of the notice as contemplated by the said provision.

Explanation III. A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

Provided that, if the agent, fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

(A Transfer of Property, whether movable or immovable)

5. "Transfer of Property" defined. In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

What is transfer? The term "transfer" means a process or an act by which something is made over to another. It does not however, mean that the making over of the thing should always be absolute. I may transfer my book to you for a day. I may also transfer it to you absolutely either by sale, gift or in exchange of your book. In either case, what is primarily essential is that I have to handover the book to you, and that act of handing over the book to you is the transfer of the book.

Analysis of Definition.

1. Transfer of Property has special technical meaning in Transfer of Property Act. Only 5 conveyances are transfer of property for the Act. Three modes convey absolute title e.g. sale, gift, exchange. Two convey limited interest e.g. mortgage and lease.

2. Transfer inter vivos alone are included as Transfer in Transfer of Property Act, e.g. transfer from living person or persons to living person or persons.

3. Transfer can be present or future but transferor and transferee must be living person. The only exception is Section 13 of Transfer of Property Act.

4. Living person is wider term than natural human beings. It includes juristic persons like company and other like associations or body of individuals whether registered or not registered.

5. Other laws governing transfer to juristic persons etc. are not affected by Transfer of Property Act.

OF SALES OF IMMOVABLE PROPERTY

54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in, or charge on such property.

OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES

58. (a) "Mortgage", "mortgagor", "mortgagee", "mortgage-money" and "mortgage-deed" defined. A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

(b) Simple mortgage. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly, or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

Please Note : Words "mortgage deed" defined in the Karnataka Stamp Act, 1957 which reads as follows "mortgage deed" includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates, to or in favour of, another, a right over or in respect of specified property; [Section 2(1)(n)]

(c) Mortgage by conditional sale. Where the mortgagor ostensibly sells the mortgaged property,

on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or

on condition that on such payment being made the sale shall become void, or

on condition that on such payment being made the buyer shall transfer the property to the seller,

the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

(d) Usufructuary mortgage. Where the mortgagor delivers possession or expressly or by implication binds, himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.

(e) English mortgage. Where the mortgagor binds himself to repay the mortgage-money on certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

(f) Mortgage by deposit of title-deeds. Where a person in any of the following towns, namely, the towns in Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by 1 notification in the Official Gazette, specify in this behalf, 2 delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

(g) Anomalous mortgage. A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.

1. Please See : Page No. 409 for list of notified places in Karnataka

2. The place of delivery or Deposit of title deeds with an intention of creating a security must be in one of the notified place. Situation of the property mortgaged is not the criteria. There is a valid mortgage by deposit of title deed if the deposit whether physical or constructive of title deeds with an intention of creating a security for the debt due takes place within the notified towns even if the memorandum is executed outside the notified towns. In this connection case reported. in AIR 1965 SC 340 may also be seen [clarification issued by Government RD 107 EST 76 dated 5-5-1982].

CHARGES

100. Charges. Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.

OF THE LEASES OF IMMOVABLE PROPERTY

105. "Lease" defined. A lease of immovable property is a transfer of a right to enjoy property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

"Lessor", "lessee", "premium" and "rent" defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium and the money, share, service or other thing to be so rendered is called the rent.

OF EXCHANGES

118. "Exchange" defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

OF GIFTS

122. "Gift" defined. "Gift" is the transfer of certain existing movable or-immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made. Such acceptance must be made during the life-time of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.