transfer of property act_bel

8/4/2019 Transfer of Property Act_bel

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TRANSFER OF PROPERTY ACT

The scheme of the act:-

Transfer

What is immovable property?Immovable property includes land, buildings,hereditary allowances, rights to ways, lights,fisheries, or any other benefits to arise out of landand things attached to earth but not standingtimber, growing crops or grass.

1

sale Mortgages Leases Exchanges Gifts

& charges

TOP TOPMovable or Immovable Immovable

Inter vivosTestamentary

By Act of Parties By operation of law


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Following are recognised by courts as beingimmovable property:-

(a) Right to way

(b) Right to collect rent of immovable property(c) Right to collect dues from fairs held on a plotof land

(d) Right to fishery(e) Office of a hereditary priest of a temple(f) Hindu widows life interest of the income of

the husbands property(g) A mortgagors right to redeem the mortgage(h) Right to collect lac from trees(i) A factory

Following are not immovable properties

(a) A right of worship(b) Right of a purchaser to have the lands

registered in his name(c) Royalty(d) A machinery which is not permanently

attached to the earth(e) A decree for sale(f) A right to recover maintenance allowance(g) Government promissory notes

(h) Standing timber(i) Growing crops(j) Grass

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ATTACHED TO EARTH

Attached to earth means anything:-(a) Rooted in the earth as in the case of trees and

shrubs(b) Imbedded in the earth as in the case of walls

or buildings(c) Attached to what is so imbedded for the

permanent beneficial enjoyment of that towhich it is attached ( doors, windows etc)

ATTESTED

Attested in relation to an instrument meansattested by two or more witnesses each of whomhas ----

(a) seen the executant sign or affix his mark to

the instrument(b) seen some other person sign the instrumentin presence of and by the direction of theexecutant

(c) received from the executant a personalacknowledgement of his signature orsignature of such other person.

NOTICE OF FACT

A person is said to have a notice of a fact -----

(a) when he actually know that fact (actualexpress notice)

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(b) when but for ---(i) wilful abstention from an enquiry or

search which he ought to have made or(ii) gross negligence,

he would have known it ( constructive or impliednotice.

TRANSFER OF PROPERTY DEFINED:

Any act by which a living person ( including acompany or association or body of individuals)conveys property in present or in future to ---

(a) One or more other living persons; or(b) Himself(c) Himself and one or more other living persons

Living persons includes:-

(a) incorporated companies(b) registered and unregistered associations(c) partnership firms(d) individuals

What property cannot be transferred?

1. The chance of an heir apparent succeeding toan estate

2. The chance of a relation obtaining a legacy onthe death of a kinsman ( called spessuccessionis i.e. hope of succession.

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3. Any other mere possibility of a like nature

Example:- A has a wife B, and a daughter C. Inconsideration of Rs. 500 paid to her by A, Cexecutes a release of her right to share ininheritance. B resists the claim and sets up as adefence the release signed by C. Will B succeed?

4. A mere right of re-entry for breach of a

condition subsequent cannot be transferred toany one, except the owner of the property

5. An easement apart from dominant heritage,cannot be transferred.

6. An interest in the property restricted in itsenjoyment to the owner personally ( eg.,religious offices, services tenures, an

inalienable raj, etc.) can also not be transferred.7. A right to future maintenance in whatsoever

manner arising cannot be transferred

8. A mere right to sue is not capable of beingtransferred

Examples : claims for :- mesne profits, fordamages for breach of contract, suing an agentfor accounts

Problem:-A assigns to B his right to sue histenant C for recovering arrears of rent due to him.If B files the sit, will he succeed against C ?

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9. A public office, or the salary of a public officerwhether before or after it has become payablecannot be transferred.

10. Stipends allowed to military, naval air force orcivil pensioners of Government as well aspolitical pensions cannot also be transferred.

11. No transfer can be made -----

(a) which is opposed to nature of interest

(b) For an unlawful object or consideration

(c) To a person who is legally disqualified tobe a transferee

Whether writing is necessary??

1) Sale of immovable property of the value of

Rs.100 or more2) Sale of a reversion or other intangible thing

3) Simple mortgage, irrespective of the amountsecured

4) All other mortgages for securing Rs. 100 ormore

5) Leases of immovable property6) Exchange

7) Gift or immovable property

8) Transfer of an actionable claim

9) Notice of transfer of actionable claim

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Essentials of a valid transfer of property:-

1) Transfer must be between two or more livingpersons

2) The property transferred must be transferable

3) Transfer must not be opposed to nature , foran unlawful object or consideration or to aperson legally disqualified

4) Transferor must be competant to contract

5) Transfer must be in the mode prescribed bythe act

6) Transfer must not offend the rule againstperpetuity

7) If the transfer is conditional, the conditionmust not be illegal, impossible, immoral or

opposed to public policy.

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ILLEGAL RESTRICTIONS ON CERTAINALIENATIONS

1. Condition restraining alienation (s. 10)

If any property is transferred subject to acondition or limitation which absolutely restrainsthe transferee from parting with or disposing ofhis interest in the property --- such condition orlimitation is void except as stated.

When Valid ?

(a) in the case of a lease, where the condition isfor the benefit of the lessor

(b) A transfer to or for the benefit of a woman(not being a Hindu, Muhammadan orBuddhist) which provides that she would nothave the power during her marriage to

transfer the property.

Examples

1.. A sells a piece of immovable property to B.One of the conditions of the sale is that should Bwish to part with the property, he would sell it to A

A devised his estate to his son with a proviso thatif the son should desire to sell the estate or anypart of it during the life time of his wife, she wouldhave the option to purchase the same at Rs.3000/- irrespective of the market price. Is thecondition valid??

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A, B, C and D effected a partition of joint familyproperty and agreed that if any one of themshould have no issue, he would have no power tosell his share but should leave it for the other

sharers. A sold his share and died without issue,Can B, C, D sue to recover his share??

2. Restriction on free enjoyment of property (s.11)

Section 11 invalidates restrictions imposed on thefree enjoyment of the interest created by transferafter it has become absolute

Exception:

If such direction has been made in respect of onepiece of immovable property for the purpose ofsecuring the beneficial enjoyment of anotherpiece of such property, it is valid.

Examples:-

1) A makes an absolute gift of a house to B, anddirects that B shall not raise it higher, so as toobstruct the passage of light and air to Asadjoining house. Is the direction valid?

2) A grants a lease of his zamindari to B,reserving to himself all the minerals and a fewplots of land in the middle of his zamindari forworking the mines and storing minerals anddirects B to allow passage to his miners toand from the reserved plots. Comment.

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3. Condition making interest determinable oninsolvency or attempted alienation (S.12)

No conditions of transfer of property in case ofinsolvency are permitted

Except:

Lease, if such condition is for benefit of lessor

Examples:-

1) A settles property in trust for himself until hisdeath or bankruptcy and then on theoccurrence of either of these events on hiswife. A is then adjudged insolvent. Will hiswife get the property?

2) A transfers property to B subject to a

condition that if B becomes insolvent, theproperty is to go to C. if B becomesinsolvent, can C claim the property?

4. Direction for accumulation of income

Where the terms of transfer direct that income

arising from property is to be accumulated duringa period longer than:-(a) the life of the transferor, or(b) a period of 18 years from the date of the

transfer,

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such a direction is void to the extent to which theperiod which is so excess.

Such direction is valid and allowed:

(1) the payment of the debts of the transferor(2) the provisions of portions for children or

remoter issue of the transferor(3) the preservation or maintenance of the

property transferred(4) when property is transferred for the benefit of

the public or for the advancement of religion,knowledge, commerce, health, safety, or anyother object beneficial to mankind.

Transfer for benefit of Unborn person.

Transfer of property cannot be made directlyin favour of unborn person

The interest of the unborn person must bepreceded by prior interest

The unborn person must be in existencewhen the prior interest comes to an end

He must have the interest at the latest whenhe attains majority

The interest created for the benefit of such

unborn person must comprise the whole ofthe remaining interest of the transferor in theproperty

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VESTED INTEREST

An interest is said to be vested when it is :-

Not subject to any condition precedent

When it is to take effect immediately or onhappening of an event.

The happening of event is certain.

Example:- A hindu widow adopts a son but thereis an agreement postponing the sons estateduring the lifetime of the widow, the interestcreated in favour of adopted son is vested interest

Problem:- A transfers property to B in trust for Cand directs B to give possession of the property

to C, when he attains the age of 25. What interestdoes C take and when?

CHARACTERSTICS OF VESTED INTEREST

does not depend upon fulfillment of condition

creates present and immediate right

enjoyment of the right may be postponed to afuture date

A vested interest is not defeated by the deathof the transferee before obtaining possession

A vested interest is transferable as well asheritable.

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When unborn person acquires vested interest.

CONTINGENT INTEREST

When on a transfer of property, an interest thereinis created in favour of a person to take effect:-

only on happening or not happening of aspecified event.

Event may be uncertain

Such person acquires contingent interest in theproperty.

CHARACTERISTICS.

A contingent interest is solely dependent

upon fulfillment of condition In case of non fulfillment of condition, interest

fails.

If the transferee dies before obtainingpossession, contingent interest fails.

It is transferable.

There is no present right of enjoyment. Merepromise for giving such right.

Example:- A gift is made to A for life andafterwards to B if B returns from England.

A transfers property to B for lifeand after his death, to C and D, equally to be

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divided between them or to the survivor of them.C dies during the life of B. D survives B. Whomshall the property pass to??

CONDITIONAL TRANSFERS.

A condition is a provision which makes theexistence of a right dependent on the happeningor non happening of a thing.

Three types of conditions:-

1) Condition precedent--- is one which delays thevesting of a right until the happening of anevent.

2) Condition subsequent(condition of defeasance)is one which destroys or divests the right uponthe happening of an event.

3) A conditional limitation is a combination ofcondition precedent and a conditionsubsequent.

Characteristics of condition precedent1. A condition precedent is one which must

happen before the estate can vest.2. In the case of a condition precedent being or

becoming impossible to be performed or

being immoral or opposed to public policy,the transfer will be void.

3. A condition precedent is fulfilled if it issubstantially complied with.

Characteristics of condition subsequent.

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1. on the happening of condition, an existingestate will be defeated.

2. The estate remains with the transferee till thecondition is broken.

3. In the case of an impossible or immoralcondition subsequent, estate becomesabsolute and condition is ignored.

4. A condition subsequent must be strictlyfulfilled.

Transfer on impossible, illegal or fraudulentconditions.

An interest created on transfer of property anddependent upon a condition fails, if the fulfilmentof the condition is :(a) Impossible(b) Forbidden by law(c) Of such a nature that if permitted would

defeat the provisions of any law(d) Fraudulent or involves injury to a person or

property of another(e) Such as court regards immoral or opposed to

public policy.

Transfer remains good while conditions are void

under following cases:-

(a) condition restraining transferee from partingor disposing his interest

(b) condition making the transferees interestdeterminable on insolvency

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(c) A direction for accumulation of interestexceeding the limits prescribed.

ELECTION

Where a person----

---- professes to transfer property which he has noright to transfer,

and---- as part of the same transaction, confers any

benefit to the owner of the property,such owner must elect either to confirm thetransfer or to dissent from it.

If he dissents from it,----(1) he must relinquish the benefit so conferred;(2) the benefit so relinquished reverts to the

transferor.

Example:- The farm of Sultanpur is the property ofC and worth Rs. 800. A by an instrument of giftprofesses to transfer it to B, giving by the sameinstrument Rs. 1000 to C. C elects to retain thefarm. He forfeits the gift of Rs. 1000. In the samecase, if A dies before the election, His

representatives must out of the Rs.1000, pay Rs.800 to B.

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What constitutes of election?1. If a person accepts such benefit for two years,

it is to be assumed that he has elected in favourof transfer.

2. He waives enquiry into circumstances.3. Does not signify intention for a atleast one year

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SALE OF IMMOVABLE PROPERTY

SALE DEFINED (S.54)

Sale is a transfer of ownership in exchange for a pricepaid or promised or part paid and part promised.

Essentials of a Valid Sale

1. The seller must be a person competent to

transfer2. The buyer must be a person competent to be a

transferee

3. The subject matter must be transferableimmovable property

4. There must be a transfer of ownership

5. The transfer must be in exchange of price

6. The price must be paid or promised, or partlypaid and partly promised

7. There must be a registered conveyance in caseof---

(i) tangible immovable property of the valueof Rs. 100 and upwards ; or

(ii) a reversion of property

8. In the case or tangible immovable property of avalue less than Rs.100, there must either be

A registered conveyance or delivery ofproperty

CONTRACT OF SALE

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A contract of sale of immovable property is acontract that a sale of such property shall takeplace on terms settled between the parties.

If it does not, of itself, create any interest in, or

charge on, such property.

Differences between sale and contract of sale.

RIGHTS AND LIABILITIES

BUYERS RIGHTS(A) BEFORE COMPLETION OF SALE.

The buyer ( unless he has improperly declined toaccept delivery of the property) is entitled to

1) A charge on the property for the purchase moneyproperly paid by him in anticipation of the delivery

2) Interest on such purchase money.

3) The costs awarded to him in a suit to compelspecific performance of contract.

4) He may enforce execution of the the agreementto sell

5) If he has obtained possession of the propertyagreed to be sold, his possession will operate asnotice to subsequent transferees.

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6) If he succeeds in showing that by a re- sale of theproperty he would have made a fair profit he willbe entitled to such profits.

AFTER COMPLETION OF SALE

1) The benefits of any improvement

2) Increase in value of property

3) The rents and profits thereof.

Buyers LiabilitesBEFORE COMPLETION OF SALE

1) To disclose to seller any material fact of sellersinterest in property

2) To pay or tender the purchase money to seller orsuch person as he directs for encumbrance freeproperty.


1) To bear any loss arising from destruction, injuryor decrease in value of property

2) To pay public charges, rents and taxes in respectto the property.

SELLERS RIGHTSBEFORE COMPLETION OF SALE

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The seller is entitled to rents and profits till ownershippasses to buyer.


The seller is entitled to charge upon property in handsof buyer or transferee for amount of the unpaidpurchase money.

SELLERS LIABILITIESBEFORE COMPLETION OF SALE

1) To disclose to buyer any material defect in (I)property or (ii) the sellers title.

2) To produce to the buyer on his request forexamination, all documents of title relating toproperty.

3) To answer all the relevant questions put to him

by the buyer with respect of property and his titlethereto.

4) On payment or tender of price, to execute aproper conveyance of the property

5) Between the date of the contract of sale anddelivery of the property to take care of propertyand documents of property.

6) To pay all the public charges and rent accrueddue in respect of the property upto sale date.

AFTER COMPLETION

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1) The seller is bound to give to the buyer or suchperson as he directs the possession of theproperty.

2) When whole of the purchase money has been

paid to seller, he is bound to deliver to the buyerall the documents of title of property

3) Where the seller retains any part of the propertycomprised of such documents, he is entitled toretain all documents

4) Where whole of such property is sold to differentbuyers, the buyer of the greatest value is entitled

to such documents.

5) To make a covenant for title.

PROBLEMS

1) A sells an enclosed field to B. Before acceptingthe conveyance, B discovers that the public have

a right of way across the field of which there is novisible indication on the land. What are the rightsof B?

2) A sells property to B. After accepting theconveyance, B discovers, that under a decree forpartition a portion of the property had beenallotted to C. What are rights of B?

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MORTGAGE OF IMMOVABLEPROPERTY

Mortgage defined.

A mortgage is the transfer of an interest in specificimmovable property for the purpose of securing----

(a) the payment of money advanced or to beadvanced by way of loan,

(b) an existing or future debt or(c) the performance of an engagement which may

give rise to a pecuniary liability.

KINDS OF MORTGAGES

1. SIMPLE MORTGAGEWhen---

(a) possession of the mortgaged property is not givento the mortgagee and

(b) the mortgagor

(i) binds himself personally to pay the

mortgage money; and(ii) agrees that if he does not so pay, the

mortgagee will have a right to cause themortgaged property to be sold (by thecourt) and the proceeds of such sale to beapplied in payment of the money.

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INGREDIENTS

1) A personal obligation on the part of mortgagor topay the debt

2) An express or implied power given to mortgageeto cause the property to be sold through theintervention of the court.

3) No transfer of ownership.

MORTGAGE BY CONDITIONAL SALE

When the mortgagor ostensibly sells the mortgagedproperty on the condition that---

(a) on default of the payment of the mortgage moneyon a certain date, --- the sale is to become

absolute.(b) On such payment being made,--- the sale is to

become void

(c) On such payment being made, --- the buyer is totransfer the property to the seller.

No delivery of possession is given in it.

PROBLEM:- Separate documents of sale deed anddeed of reconveyance are executed between partiesin the same transaction and in respect of the sameproperty. The owner wishes to redeem the propertyand contents that transaction is in nature ofconditional sale. Will he succeed.

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MORTGAGORS RIGHTS

REDEMPTION

1. Right of redemption

At any time after the principal money hasbecome due, and on payment or tender of themortgage money, the mortgagor has a right toget back his property and demand ---

(a) the return of the mortgage instrument,together will all the title deeds;

(b) delivery of possession of the mortgagedproperty

(c) a re-transfer of the property (at Mortgagorscost) or an acknowledgement in writing ofthe extinction of mortgagees right.

Clog on redemption

Any condition in the mortgage deed, whichobstructs the right of redemption, will beconsidered as a clog on redemption and will benull and void.

Example:- A mortgaged his land to B for fiveyears, with a provision that rents and profits

would be set off against interest. The deedfurther provided that if the mortgage was notredeemed within 20 years, the mortgageeshouldtreat the land as sold to him absolutely.

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The clog of equity of redemption rights may beon the following forms:-

(1) The mortgagor may be totally preventedfrom redeeming the mortgage.

(2) The terms of mortgage might give acollateral benefit to mortgagee

(3) Impose a collateral burden on the mortgagoreven after the discharge of the debt.

Right to redeem a part of the mortgagedproperty

a mortgage is one and indivisible

General rule mortgage debt beingindivisible and mortgaged property beingheld entirely as security can be redeemed

entirely only.Exceptions

1. Where the terms of a mortgage provide forpartial redemption.

2. Where co-mortgagors have distinct andseparate interests

3. Where the mortgagee recognises a partitionof the mortgaged property

4. When mortgagee himself acquires a portionof the mortgaged property.

Right to redeem separately or simultaneously

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A mortgagor may have executed two ormore mortgages in favour of the same

mortgagee. He is entitled to redeem any one of such

mortgages separately

Or any two or more of such mortgagestogether.

Sec. 61 has abolished doctrine of

consolidation.

Who can sue for redemption?

(i) Any person ( other than the mortgagee)having ---

(a) any interest in, or

(b) charge upon,

--- the property mortgaged, or

--- the right to redeem the same.

(ii) Any surety for the payment of the mortgaged

debt, or any part thereof.(iii) Any creditor of the mortgagor who has, in asuit for the administration of his estate, obtaineda decree for sale of the mortgaged property.

Right of subrogation

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Subrogation is a roman term meaningSubstitution

It is the right of a person to stand in the

place of creditor. When a mortgagee transfers his mortgage

debt, his assignee becomes vested with allhis rights.

Subrogator must pay of the entire amount ofthe prior mortgage.

RIGHT TO TRANSFER TO THIRD PARTYINSTEAD OF RE-TRANSFERENCE

RIGHT TO INSPECTION AND PRODUCTIONOF DOCUMENTS

RIGHT OF ACCESSION

Natural Artificial

Eg, agriculture Eg. Erection of

Building

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LIABILITIES OF THE MORTGAGOR

1. Covenant for title.

2. Covenant for defence of title

3. Covenant for payment of public charges.

4. Covenant for payment of rent.

5. Covenant for payment of prior encumbrances.

RIGHTS OF THE MORTGAGEE1. Right of foreclosure

A suit to obtain a decree that a mortgagor shallbe absolutely debarred of his right to redeemthe mortgaged property is called a suit forforeclosure.

Who cannot foreclose or sell(i) A simple mortgagee cannot foreclose.

(ii) A usufructuary mortgagee cannotforeclose or sell

(iii) A mortgagee by conditional sale cannotsell

(iv) A mortgagee of works of public utilitycannot foreclose or sell.

(v) An English mortgagee cannot foreclose.

(vi) A person interested in part only ofmortgage money cannot institute a suitrelating to a corresponding part of the

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mortgaged property, unless themortgagees have, with the consent ofthe mortgagor, severed their interestsunder a mortgage.

2. Right to sue for mortgage money

When?

(a) Where the mortgagor binds himself torepay the same.

(b) Where by any cause other than thewrongful act of the mortgagor ormortgagee, the mortgaged property isdestroyed.

(c) Where the mortgagee is deprived of thewhole or party of his security by thewrongful act or default of mortgagor.

(d) Where the mortgagee is entitled topossession of mortgaged property and themortgagor fails to deliver the same to him.

3. Right to sell without the intervention of court.

When?

1. where the mortgage is an Englishmortgage, and neither the mortgagor northe mortgagee is a Hindu, Muhammedan,or Buddhist.

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2. Where the government is the mortgageeand a power of sale without theintervention of court is expressly conferredby the mortgage deed.

3. Where the power of sale withoutintervention of court is expressly conferredby the mortgage deed.

Such power can be exercised only :

1. When the principal money (or a partthereof) has remained unpaid for three

months after service of notice in writingrequiring payment

2. When interest not less than Rs.500 inamount is in arrears and remains unpaid for3 months.

4. Right to appointment of a receiver.(a) Appointment how made

(b) Removal of the receiver

(c) Position of the receiver

(d) His powers

(e) His remuneration ( not exceeding 5 %)

Money in his hands, how applied?

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(i) in discharge of all rents, taxes, land revenueand out going whatever, affecting theproperty;

(ii) in payment of all annual sums and interest

on all principal sums, having priority to themortgage;

(iii) in payment of his commission and of thepremium on insurance property payable

(iv) the cost of executing proper repairs;

(v) in payment of the interest falling due under

the mortgage;

(vi) in discharge of the principal money.

The residue, if any is to be paid to any personotherwise entitled to the mortgaged property.

5. Right to accession.

Problem :- M mortgages his plot of land inChembur to N. Afterwards, M raises a skyscraperon the same plot. Is N entitled to the skyscraperfor the purposes of his security.

6. Right to renewal of mortgaged lease.

7. Right to spend money:

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When?

(1) for the preservation of the mortgaged propertyfrom destruction, forfeiture or sale;

(2) for supporting the mortgagors title to theproperty;

(3) for making his own title thereto good againstthe mortgagor;

(4) for renewal of the leasehold mortgaged to him,where property is a renewable leasehold.

Charges for insurance of mortgaged property.

8. Right to proceeds of revenue sale or compensation on acquisition.

9. Right of mesne mortgagees

LIABILITIES OF THE MORTGAGEE

1. to manage the property as a person ofordinary prudence would manage it if it werehis own;

2. to use his best endeavours to collect the rent

and profits thereof;

3. in absence of a contract to the contrary, - topay Government revenue and other charges ofpublic nature and all rent, out of income of theproperty.

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4. To make such necessary repairs as theincome of the property permits;

5. Not to commit any act which is destructive orpermanently injurious to property

6. Where the insured property is destroyed, toinstate the property with the money obtainedfrom insurance policy.

7. To keep clear, full and accurate accounts of allsums received and spent by him as amortgagee and to give them to mortgagor

8. To account for the receipts from the property,when the mortgagor tenders and deposits thedue amount.

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LEASES OF IMMOVABLE PROPERTY

Definition;

A lease of immovable property is a transfer of aright to enjoy such property for a certain time, or inperpetuity, in consideration of

(i) a price paid or promised

(ii) money

(iii) a share of crops

(iv) service

(v) any other thing of value to be renderedperiodically or on specified occasions

Characteristics

1. The lessor must be competent to contract andhe must have title or authority.

2. The lessee must also be competent to contractat the date of execution of lease. A lease tominor is invalid.

3. The subject matter of the lease must beimmovable property.

4. There must be a transfer of a right to enjoysuch property.

5. Lease must be made for a certain time or inperpetuity

6. Consideration would be as defined above.

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7. The lessee must accept the transfer.

8. I must be in the mode indicated by s.107.

Leases how made?1. from year to year, or for any term exceeding

one year, or reserving a yearly rent --- only bya registered instrument.

2. In any other case ---- either by a registeredinstrument or by oral agreement accompaniedby delivery of possession

Duration and termination leases.

Type Is deemedto be a

lease from

terminableby lessor or

lessee by

Expiringwith the

end of---Agricultureormanufacture

Year toyear

Six monthsnotice

A year of the tenancy

Any other purposes

Month tomonth

Fifteendays notice

A month ofthe tenancy

Rights and liabilities of lessor and lessee will begiven as a separate handout for self study

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transfer of property act_bel

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