Textbook: Law of Property | Legal Studies for Class 12 - Humanities/Arts PDF Download

 Page 1


Property Law
Learning Outcomes :
Students will be able to
•	 Understand	the	meaning	of	the	ter m	proper ty	and	transfer	of	proper ty
•	 Understand	 the	 types	 of	 proper ty	 under	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 and	 Sale	 of	 goods	
Act	1932
•	 Distinguish	between	the	types	of	proper ty	and	its	transfer
•	 Describe	the	Doctrine	of	Election	and	Doctrine	of	Lis	pendense
•	 Elaborate	the	process	of	transfer	of	proper ty
•	 Explain	the	differ ent	modes	in	which	an	immovable	proper ty	can	be	transfer r ed
I.  INTRODUCTION
Befor e	 the	 advent	 of	 the	 British	 kingdom,	 each	 community	 in	 India	 was	 gover ned	 by	 its	 r espective	
customar y	 law	 in	 matters	 r elating	 to	 transfer	 of	 proper ty .	 W ith	 the	 establishment	 of	 the	 for mal	 litigation	
system	 and	 in	 absence	 of	 any	 legislation	 in	 this	 ar ea,	 to	 begin	 with,	 the	 English	 judges	 applied	 the	
common	 law	 of	 England	 and	 the	 rules	 of	 equity ,	 justice	 and	 good	 conscience	 with	 r espect	 to	 disputes	
r elating	 to	 transfer	 of	 prope r ty .	 The	 unsuitability	 of	 these	 provisions	 to	 the	 Indian	 conditions;	 the	
r esulting	 conflict	 and	 the	 nee d	 for	 clarity	 of	 rules	 r elating 	 to	 this	 impor tant	 branch	 of	 law	 necessitated	
the	 ena ctment	 of	 legislation .	 Drafted	 in	 1870,	 the	 T ransfer	 of	 P roper ty	 Act	 saw	 the	 light	 of	 the	 day	
in	 1882 	 and	 provided	 the	 basic	 principles	 for	 transfer	 of	 both	 movable	 and	 immovable	 proper ties.	
Based	 primari ly	 on	 the	 English	 law	 of	 ‘Real	 P roper ty ’,	 it	 attempted	 to	 mould	 these	 principles	 to	 suit	
the	 Indian	 conditions	 ,	 mor eover ,	 a	 separate	 enactment	 titled	 the	 ‘Sale	 of	 Goods	 Act,	 1930’	 was	
passed	 to	 deal 	 with	 transfer	 of	 movable	 proper ty	 by	 sale.	 The	 T ransfer	 of	 P roper ty	 Act,	 1882	 contains	
the	 general	 principles	 of	 transfer	 of	 proper ty	 and	 detailed	 rules	 with	 r espect	 to	 specific	 transfer	 of	
immovable	proper ty	by	sale,	e xchange,	mor tgage,	lease	and	gift.	
II.  TYPES OF PROPERTY
The	 word	property has	 not	 been	 defined	 in	 the	 Act,	 but	 it	 has	 a	 ver y	 wide	 meaning	 and	 includes	
proper ties	 of	 all	 descriptions .	 It	 includes	 movable	 prope r ties	 such	 as	 cases,	 books,	 etc.,	 and	 includes	
immovable	 proper ties	 also	 such	 as	 lands	 or	 houses.	 It	 also	 includes	 intangible	 proper ties	 such	 as	
ownership,	tenancy ,	copyrights,	etc.
As	 per	 Section	 3,	 the	 immov able	 proper ty	 does	 not	 include	 standing	 timber ,	 growing	 crop	 and	 grass.	
Standing timbers: standin g	 timbers	 ar e	 tr ees	 fit	 for	 use	 for	 building	 or	 r epairing	 houses.	 The	 word	
standing	 timber	 includes	 Babool	 T r ee,	 Shisham,	 P eepal,	 Banyan,	 T eak,	 Bamboo ,	 etc.	 The	 fruit-bearing	
tr ees	 like	 Man go ,	 Jackfruit,	 Jamun,	 etc.,	 ar e	 not	 standin g	 timber ,	 and	 they	 ar e	 immovable	 proper ties	
(Fatimabibi v. Arrfana Begum ,	AIR	1980	All	394).
CHAPTER
3(C)
Page 2


Property Law
Learning Outcomes :
Students will be able to
•	 Understand	the	meaning	of	the	ter m	proper ty	and	transfer	of	proper ty
•	 Understand	 the	 types	 of	 proper ty	 under	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 and	 Sale	 of	 goods	
Act	1932
•	 Distinguish	between	the	types	of	proper ty	and	its	transfer
•	 Describe	the	Doctrine	of	Election	and	Doctrine	of	Lis	pendense
•	 Elaborate	the	process	of	transfer	of	proper ty
•	 Explain	the	differ ent	modes	in	which	an	immovable	proper ty	can	be	transfer r ed
I.  INTRODUCTION
Befor e	 the	 advent	 of	 the	 British	 kingdom,	 each	 community	 in	 India	 was	 gover ned	 by	 its	 r espective	
customar y	 law	 in	 matters	 r elating	 to	 transfer	 of	 proper ty .	 W ith	 the	 establishment	 of	 the	 for mal	 litigation	
system	 and	 in	 absence	 of	 any	 legislation	 in	 this	 ar ea,	 to	 begin	 with,	 the	 English	 judges	 applied	 the	
common	 law	 of	 England	 and	 the	 rules	 of	 equity ,	 justice	 and	 good	 conscience	 with	 r espect	 to	 disputes	
r elating	 to	 transfer	 of	 prope r ty .	 The	 unsuitability	 of	 these	 provisions	 to	 the	 Indian	 conditions;	 the	
r esulting	 conflict	 and	 the	 nee d	 for	 clarity	 of	 rules	 r elating 	 to	 this	 impor tant	 branch	 of	 law	 necessitated	
the	 ena ctment	 of	 legislation .	 Drafted	 in	 1870,	 the	 T ransfer	 of	 P roper ty	 Act	 saw	 the	 light	 of	 the	 day	
in	 1882 	 and	 provided	 the	 basic	 principles	 for	 transfer	 of	 both	 movable	 and	 immovable	 proper ties.	
Based	 primari ly	 on	 the	 English	 law	 of	 ‘Real	 P roper ty ’,	 it	 attempted	 to	 mould	 these	 principles	 to	 suit	
the	 Indian	 conditions	 ,	 mor eover ,	 a	 separate	 enactment	 titled	 the	 ‘Sale	 of	 Goods	 Act,	 1930’	 was	
passed	 to	 deal 	 with	 transfer	 of	 movable	 proper ty	 by	 sale.	 The	 T ransfer	 of	 P roper ty	 Act,	 1882	 contains	
the	 general	 principles	 of	 transfer	 of	 proper ty	 and	 detailed	 rules	 with	 r espect	 to	 specific	 transfer	 of	
immovable	proper ty	by	sale,	e xchange,	mor tgage,	lease	and	gift.	
II.  TYPES OF PROPERTY
The	 word	property has	 not	 been	 defined	 in	 the	 Act,	 but	 it	 has	 a	 ver y	 wide	 meaning	 and	 includes	
proper ties	 of	 all	 descriptions .	 It	 includes	 movable	 prope r ties	 such	 as	 cases,	 books,	 etc.,	 and	 includes	
immovable	 proper ties	 also	 such	 as	 lands	 or	 houses.	 It	 also	 includes	 intangible	 proper ties	 such	 as	
ownership,	tenancy ,	copyrights,	etc.
As	 per	 Section	 3,	 the	 immov able	 proper ty	 does	 not	 include	 standing	 timber ,	 growing	 crop	 and	 grass.	
Standing timbers: standin g	 timbers	 ar e	 tr ees	 fit	 for	 use	 for	 building	 or	 r epairing	 houses.	 The	 word	
standing	 timber	 includes	 Babool	 T r ee,	 Shisham,	 P eepal,	 Banyan,	 T eak,	 Bamboo ,	 etc.	 The	 fruit-bearing	
tr ees	 like	 Man go ,	 Jackfruit,	 Jamun,	 etc.,	 ar e	 not	 standin g	 timber ,	 and	 they	 ar e	 immovable	 proper ties	
(Fatimabibi v. Arrfana Begum ,	AIR	1980	All	394).
CHAPTER
3(C)
Growing Crop: It	 includes 	 all	 vegetable	 growths	 which	 have	 no	 e xistence	 apar t	 from	 their	 produce	
such	as	pan	leave,	sugar cane	etc
Grass: Grass	 is	 a	 movable	 proper ty ,	 but	 if	 it	 is	 right	 to	 cut	 grass	 it	 would	 be	 an	 inter est	 in	 land	 and	
hence	for ms	immovable	proper ty .
Whether	 tr ees	 can	 be	 r egarde d	 as	 movable	 or	 immovable 	 depends	 upon	 the	 cir cumstances	 of	 the	 case.	
If	 the	 intention 	 is	 that	 tr ees	 should	 continue	 to	 have	 the	 benefit	 of	 fur ther	 sustenance	 or	 nutriment	 by	
the	 soil	 (land) ,	 e.g.,	 enjoinin g	 their	 fruits,	 then	 such	 tr ee	 is	 immovable	 proper ty .	 But	 if	 the	 intention	
is	 to	 cut	 them	 down	 sooner	 or	 later	 for	 the	 purpose	 utilizing	 the	 wood	 for	 building	 or	 other	 industrial	
purposes,	 they	 would	 be	 timber	 and	 accordingly	 be	 r egarded	 as	 movable	 proper ty	 (Shantabai v. 
State of Bombay ,	AIR	1958	SC	532)
As	 per	 Section	 3(25),	 Gener al	 Clauses	 Act,	 1897	 Immovable	 proper ty	 shall	 include	 land,	 benefits	 to	
arise	 out	 of	 land	 and	 things	 attached	 to	 the	 ear th,	 or	 per manently	 fastened	 to	 anything	 attached	 to	
the	ear th.
In	 the	 case	 of	Sukry Kurdepa v. Goondakull (1872)	 cour t	 has	 e xplained	 that	 movability	 may	
be	 defined	 to	 be	 a	 capacity	 in~	 a	 thing	 of	 suffering	 alteration.	 On	 the	 other	 hand,	 if	 a	 thing	 cannot	
change	its	place	without	injur y	to	the	quality	it	is	immovable.
In	Marshall v. Green 	 (33	 L T	 404),	 ther e	 was	 a	 sale	 of	 tr ees	 wher e	 they	 wer e	 cut	 and	 taken	 away .	
The	Cour t	held	that	the	sale	was	not	that	of	immovable	proper ty .
Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines	proper ty	as:
“P roper ty ”	 means	 proper ty	 of	 any	 kind,	 whether	 movable	 or	 immovable,	 tangible	 or	 intangible,	
and	includes	any	right	or	inter est	in	such	proper ty .
Section 2 (11) of the Sale of Good Act, 1930 defines	proper ty	as:
“P roper ty ”	means	the	general	proper ty	in	goods,	and	not	mer ely	a	special	proper ty .
Basis Movable Property Immovable Property
(a)	Movement	of	
proper ty
The	movable	proper ty	can	
easily	be	transpor ted	from	
one	place	to	another ,	without	
changing	its	shape,	capacity ,	
quantity	or	quality .
The	immovable	proper ty	cannot	
easily	be	transpor ted	from	one	place	
to	another .	
(b)		T ransfer Mer e	deliver y	with	intention	to	
transfer	the	movable	proper ty	
completes	the	transfer
Mer e	deliver y	does	not	sufficient	for	
a	valid	transfer .	The	proper ty	must	
be	r egister ed	in	the	name	of	the	
transfer ee
(c)	Registration Registration	of	movable	
proper ty	is	optional	under	the	
Registration	Act	1908
Registration	of	immovable	proper ty	
is	compulsor y/	mandator y	under	the	
Registration	Act	1908,		subject	to	
the	condition	that	its	value	e xceeds	
Rs.100
(d)	L egal	provision T ransfer	of	movable	proper ty	
is	r egulated	by	Sales	of	goods	
Act	1932
T ransfer	of	immovable	proper ty	is	
r egulated	by	T ransfer	of	P roper ty	Act	
1882
Page 3


Property Law
Learning Outcomes :
Students will be able to
•	 Understand	the	meaning	of	the	ter m	proper ty	and	transfer	of	proper ty
•	 Understand	 the	 types	 of	 proper ty	 under	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 and	 Sale	 of	 goods	
Act	1932
•	 Distinguish	between	the	types	of	proper ty	and	its	transfer
•	 Describe	the	Doctrine	of	Election	and	Doctrine	of	Lis	pendense
•	 Elaborate	the	process	of	transfer	of	proper ty
•	 Explain	the	differ ent	modes	in	which	an	immovable	proper ty	can	be	transfer r ed
I.  INTRODUCTION
Befor e	 the	 advent	 of	 the	 British	 kingdom,	 each	 community	 in	 India	 was	 gover ned	 by	 its	 r espective	
customar y	 law	 in	 matters	 r elating	 to	 transfer	 of	 proper ty .	 W ith	 the	 establishment	 of	 the	 for mal	 litigation	
system	 and	 in	 absence	 of	 any	 legislation	 in	 this	 ar ea,	 to	 begin	 with,	 the	 English	 judges	 applied	 the	
common	 law	 of	 England	 and	 the	 rules	 of	 equity ,	 justice	 and	 good	 conscience	 with	 r espect	 to	 disputes	
r elating	 to	 transfer	 of	 prope r ty .	 The	 unsuitability	 of	 these	 provisions	 to	 the	 Indian	 conditions;	 the	
r esulting	 conflict	 and	 the	 nee d	 for	 clarity	 of	 rules	 r elating 	 to	 this	 impor tant	 branch	 of	 law	 necessitated	
the	 ena ctment	 of	 legislation .	 Drafted	 in	 1870,	 the	 T ransfer	 of	 P roper ty	 Act	 saw	 the	 light	 of	 the	 day	
in	 1882 	 and	 provided	 the	 basic	 principles	 for	 transfer	 of	 both	 movable	 and	 immovable	 proper ties.	
Based	 primari ly	 on	 the	 English	 law	 of	 ‘Real	 P roper ty ’,	 it	 attempted	 to	 mould	 these	 principles	 to	 suit	
the	 Indian	 conditions	 ,	 mor eover ,	 a	 separate	 enactment	 titled	 the	 ‘Sale	 of	 Goods	 Act,	 1930’	 was	
passed	 to	 deal 	 with	 transfer	 of	 movable	 proper ty	 by	 sale.	 The	 T ransfer	 of	 P roper ty	 Act,	 1882	 contains	
the	 general	 principles	 of	 transfer	 of	 proper ty	 and	 detailed	 rules	 with	 r espect	 to	 specific	 transfer	 of	
immovable	proper ty	by	sale,	e xchange,	mor tgage,	lease	and	gift.	
II.  TYPES OF PROPERTY
The	 word	property has	 not	 been	 defined	 in	 the	 Act,	 but	 it	 has	 a	 ver y	 wide	 meaning	 and	 includes	
proper ties	 of	 all	 descriptions .	 It	 includes	 movable	 prope r ties	 such	 as	 cases,	 books,	 etc.,	 and	 includes	
immovable	 proper ties	 also	 such	 as	 lands	 or	 houses.	 It	 also	 includes	 intangible	 proper ties	 such	 as	
ownership,	tenancy ,	copyrights,	etc.
As	 per	 Section	 3,	 the	 immov able	 proper ty	 does	 not	 include	 standing	 timber ,	 growing	 crop	 and	 grass.	
Standing timbers: standin g	 timbers	 ar e	 tr ees	 fit	 for	 use	 for	 building	 or	 r epairing	 houses.	 The	 word	
standing	 timber	 includes	 Babool	 T r ee,	 Shisham,	 P eepal,	 Banyan,	 T eak,	 Bamboo ,	 etc.	 The	 fruit-bearing	
tr ees	 like	 Man go ,	 Jackfruit,	 Jamun,	 etc.,	 ar e	 not	 standin g	 timber ,	 and	 they	 ar e	 immovable	 proper ties	
(Fatimabibi v. Arrfana Begum ,	AIR	1980	All	394).
CHAPTER
3(C)
Growing Crop: It	 includes 	 all	 vegetable	 growths	 which	 have	 no	 e xistence	 apar t	 from	 their	 produce	
such	as	pan	leave,	sugar cane	etc
Grass: Grass	 is	 a	 movable	 proper ty ,	 but	 if	 it	 is	 right	 to	 cut	 grass	 it	 would	 be	 an	 inter est	 in	 land	 and	
hence	for ms	immovable	proper ty .
Whether	 tr ees	 can	 be	 r egarde d	 as	 movable	 or	 immovable 	 depends	 upon	 the	 cir cumstances	 of	 the	 case.	
If	 the	 intention 	 is	 that	 tr ees	 should	 continue	 to	 have	 the	 benefit	 of	 fur ther	 sustenance	 or	 nutriment	 by	
the	 soil	 (land) ,	 e.g.,	 enjoinin g	 their	 fruits,	 then	 such	 tr ee	 is	 immovable	 proper ty .	 But	 if	 the	 intention	
is	 to	 cut	 them	 down	 sooner	 or	 later	 for	 the	 purpose	 utilizing	 the	 wood	 for	 building	 or	 other	 industrial	
purposes,	 they	 would	 be	 timber	 and	 accordingly	 be	 r egarded	 as	 movable	 proper ty	 (Shantabai v. 
State of Bombay ,	AIR	1958	SC	532)
As	 per	 Section	 3(25),	 Gener al	 Clauses	 Act,	 1897	 Immovable	 proper ty	 shall	 include	 land,	 benefits	 to	
arise	 out	 of	 land	 and	 things	 attached	 to	 the	 ear th,	 or	 per manently	 fastened	 to	 anything	 attached	 to	
the	ear th.
In	 the	 case	 of	Sukry Kurdepa v. Goondakull (1872)	 cour t	 has	 e xplained	 that	 movability	 may	
be	 defined	 to	 be	 a	 capacity	 in~	 a	 thing	 of	 suffering	 alteration.	 On	 the	 other	 hand,	 if	 a	 thing	 cannot	
change	its	place	without	injur y	to	the	quality	it	is	immovable.
In	Marshall v. Green 	 (33	 L T	 404),	 ther e	 was	 a	 sale	 of	 tr ees	 wher e	 they	 wer e	 cut	 and	 taken	 away .	
The	Cour t	held	that	the	sale	was	not	that	of	immovable	proper ty .
Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines	proper ty	as:
“P roper ty ”	 means	 proper ty	 of	 any	 kind,	 whether	 movable	 or	 immovable,	 tangible	 or	 intangible,	
and	includes	any	right	or	inter est	in	such	proper ty .
Section 2 (11) of the Sale of Good Act, 1930 defines	proper ty	as:
“P roper ty ”	means	the	general	proper ty	in	goods,	and	not	mer ely	a	special	proper ty .
Basis Movable Property Immovable Property
(a)	Movement	of	
proper ty
The	movable	proper ty	can	
easily	be	transpor ted	from	
one	place	to	another ,	without	
changing	its	shape,	capacity ,	
quantity	or	quality .
The	immovable	proper ty	cannot	
easily	be	transpor ted	from	one	place	
to	another .	
(b)		T ransfer Mer e	deliver y	with	intention	to	
transfer	the	movable	proper ty	
completes	the	transfer
Mer e	deliver y	does	not	sufficient	for	
a	valid	transfer .	The	proper ty	must	
be	r egister ed	in	the	name	of	the	
transfer ee
(c)	Registration Registration	of	movable	
proper ty	is	optional	under	the	
Registration	Act	1908
Registration	of	immovable	proper ty	
is	compulsor y/	mandator y	under	the	
Registration	Act	1908,		subject	to	
the	condition	that	its	value	e xceeds	
Rs.100
(d)	L egal	provision T ransfer	of	movable	proper ty	
is	r egulated	by	Sales	of	goods	
Act	1932
T ransfer	of	immovable	proper ty	is	
r egulated	by	T ransfer	of	P roper ty	Act	
1882
74
III.  TRANSFER
T ransfer	 of	 proper ty	 is	 an	 act	 of	 conveying	 proper ty	 from	 one	 person	 to	 another ,	 in	 the	 pr esent	
or	 futur e.	 Matters	 r elating	 to	 the	 proper ty	 ar e	 gover ned	 by	 the	 T ransfer	 of	 P roper ty	 Act,	 1882	 in	
India.	 The	 object	 of	 the	 T ransfer	 of	 P roper ty	 Act	 is	 to	 r egulate	 the	 transfer	 of	 proper ty	 between	 living	
persons.	It	shall	also	ser ve	as	the	code	of	contract	law	gover ning	immovable	proper ty .
The	 T ransfer	 of	 P roper ty	 Act,	 1882	 provides	 clarity	 on	 the	 subject:	 it	 is	 a	 systematic	 and	 unifor m	 law	
on	the	transfer	of	immovable	proper ty	in	India.		
The	 transfer	 of	 proper ty	 may	 also	 take	 place	 by	 inherita nce	 and	 succession.	 The	 laws	 r elating	 to	 such	
transfer	ar e	gover ned	by	the	r espective	r eligious	laws	or	practices,	as	the	case	may	be.	
Who can transfer property?
Any	 person	 who	 is	 competent	 to	 contract	 (person	 above	 18	 years	 of	 age,	 having	 a	 sound	 mind	 and	
not	 disqualified	 by	 any	 law	 in	 for ce)	 and	 authorized	 to	 dispose	 of	 proper ty	 viz.,	 owner	 of	 the	 proper ty	
or	 any	 person 	 authorized	 to	 sell	 the	 proper ty ,	 can	 make	 a	 transfer .	 The	 person	 who	 transfers	 the	
proper ty	 is	 called	 the	 transferor	 and	 the	 person	 to	 whom	 the	 transfer	 is	 made	 is	 called	 the	 transfer ee.	
According	 to	 section	 8	 of	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 (The	 Act),	 by	 transfer ring	 proper ty ,	 the	
transferor	transfers	all	rights	in	a	proper ty .
Essentials of a valid transfer
With regard to the law of property, a transfer is a process of conveying the rights and 
liabilities with respect to a property by one person to another. It is therefore with the 
formation of an agreement culminating into a contract that the transfer of property takes 
place. 
(T ransfer	 may	 be	 by	 agr eement	 between	 par ties	 i.e.	 by	 contract-	 e xplained	 in	 upcoming	 chapter	 of	
contracts-	 transfer	 by	 will	 or	 succession -	 her e	 in	 this	 chapter	 we	 ar e	 dealing	 with	 transfer	 by	 agr eement	
between	par ties)
The	following	ar e	the	essentials	for	a	valid	transfer	of	proper ty :
•							In	a	transfer	of	proper ty ,	the	transfer	should	be	between	two	or	mor e	living	persons.
•	 	 	 	 	 	 	 The	 proper ty	 that	 is	 going	 to	 be	 transfer r ed	 shoul d	 be	 fr ee	 from	 encumbrances	 (hindrances	 of	
any	for m)	and	be	of	a	transferable	natur e.
•	 	 	 	 	 	 	 The	 transfer	 should	 not	 be:	 -	 for	 an	 unlawful	 object	 or	 an	 unlawful	 consideration	 (for	 a	 detailed	
understanding,	r efer	the	chapter	on	Contracts);
	 -								 involving	a	person	legally	disqualified	to	be	a	transferor	or	transfer ee.
•							The	transferor	who	transfers	the	proper ty	must:
	 -								 be	competent	to	make	the	transfer;
	 -								 be	entitled	to	the	transferable	proper ty ;
	 -								 be	authorized	to	dispose	off	the	proper ty	if	the	proper ty	is	not	his	own	proper ty .
•	 The	 transfer	 should	 be	 made	 according	 to	 the	 appropriate	 mode	 of	 transfer .	 Necessar y	 for malities	
like	r egistration,	attestation,	etc.	should	be	complied	with.
•	 In	 the	 case	 of	 a	 conditional	 transfer ,	 wher e	 an	 inter est	 is	 cr eated	 on	 the	 fulfillment	 of	 a	 condition,	
the	condition	should	not	be	illegal,	immoral,	impossible	or	opposed	to	public	policy .
Page 4


Property Law
Learning Outcomes :
Students will be able to
•	 Understand	the	meaning	of	the	ter m	proper ty	and	transfer	of	proper ty
•	 Understand	 the	 types	 of	 proper ty	 under	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 and	 Sale	 of	 goods	
Act	1932
•	 Distinguish	between	the	types	of	proper ty	and	its	transfer
•	 Describe	the	Doctrine	of	Election	and	Doctrine	of	Lis	pendense
•	 Elaborate	the	process	of	transfer	of	proper ty
•	 Explain	the	differ ent	modes	in	which	an	immovable	proper ty	can	be	transfer r ed
I.  INTRODUCTION
Befor e	 the	 advent	 of	 the	 British	 kingdom,	 each	 community	 in	 India	 was	 gover ned	 by	 its	 r espective	
customar y	 law	 in	 matters	 r elating	 to	 transfer	 of	 proper ty .	 W ith	 the	 establishment	 of	 the	 for mal	 litigation	
system	 and	 in	 absence	 of	 any	 legislation	 in	 this	 ar ea,	 to	 begin	 with,	 the	 English	 judges	 applied	 the	
common	 law	 of	 England	 and	 the	 rules	 of	 equity ,	 justice	 and	 good	 conscience	 with	 r espect	 to	 disputes	
r elating	 to	 transfer	 of	 prope r ty .	 The	 unsuitability	 of	 these	 provisions	 to	 the	 Indian	 conditions;	 the	
r esulting	 conflict	 and	 the	 nee d	 for	 clarity	 of	 rules	 r elating 	 to	 this	 impor tant	 branch	 of	 law	 necessitated	
the	 ena ctment	 of	 legislation .	 Drafted	 in	 1870,	 the	 T ransfer	 of	 P roper ty	 Act	 saw	 the	 light	 of	 the	 day	
in	 1882 	 and	 provided	 the	 basic	 principles	 for	 transfer	 of	 both	 movable	 and	 immovable	 proper ties.	
Based	 primari ly	 on	 the	 English	 law	 of	 ‘Real	 P roper ty ’,	 it	 attempted	 to	 mould	 these	 principles	 to	 suit	
the	 Indian	 conditions	 ,	 mor eover ,	 a	 separate	 enactment	 titled	 the	 ‘Sale	 of	 Goods	 Act,	 1930’	 was	
passed	 to	 deal 	 with	 transfer	 of	 movable	 proper ty	 by	 sale.	 The	 T ransfer	 of	 P roper ty	 Act,	 1882	 contains	
the	 general	 principles	 of	 transfer	 of	 proper ty	 and	 detailed	 rules	 with	 r espect	 to	 specific	 transfer	 of	
immovable	proper ty	by	sale,	e xchange,	mor tgage,	lease	and	gift.	
II.  TYPES OF PROPERTY
The	 word	property has	 not	 been	 defined	 in	 the	 Act,	 but	 it	 has	 a	 ver y	 wide	 meaning	 and	 includes	
proper ties	 of	 all	 descriptions .	 It	 includes	 movable	 prope r ties	 such	 as	 cases,	 books,	 etc.,	 and	 includes	
immovable	 proper ties	 also	 such	 as	 lands	 or	 houses.	 It	 also	 includes	 intangible	 proper ties	 such	 as	
ownership,	tenancy ,	copyrights,	etc.
As	 per	 Section	 3,	 the	 immov able	 proper ty	 does	 not	 include	 standing	 timber ,	 growing	 crop	 and	 grass.	
Standing timbers: standin g	 timbers	 ar e	 tr ees	 fit	 for	 use	 for	 building	 or	 r epairing	 houses.	 The	 word	
standing	 timber	 includes	 Babool	 T r ee,	 Shisham,	 P eepal,	 Banyan,	 T eak,	 Bamboo ,	 etc.	 The	 fruit-bearing	
tr ees	 like	 Man go ,	 Jackfruit,	 Jamun,	 etc.,	 ar e	 not	 standin g	 timber ,	 and	 they	 ar e	 immovable	 proper ties	
(Fatimabibi v. Arrfana Begum ,	AIR	1980	All	394).
CHAPTER
3(C)
Growing Crop: It	 includes 	 all	 vegetable	 growths	 which	 have	 no	 e xistence	 apar t	 from	 their	 produce	
such	as	pan	leave,	sugar cane	etc
Grass: Grass	 is	 a	 movable	 proper ty ,	 but	 if	 it	 is	 right	 to	 cut	 grass	 it	 would	 be	 an	 inter est	 in	 land	 and	
hence	for ms	immovable	proper ty .
Whether	 tr ees	 can	 be	 r egarde d	 as	 movable	 or	 immovable 	 depends	 upon	 the	 cir cumstances	 of	 the	 case.	
If	 the	 intention 	 is	 that	 tr ees	 should	 continue	 to	 have	 the	 benefit	 of	 fur ther	 sustenance	 or	 nutriment	 by	
the	 soil	 (land) ,	 e.g.,	 enjoinin g	 their	 fruits,	 then	 such	 tr ee	 is	 immovable	 proper ty .	 But	 if	 the	 intention	
is	 to	 cut	 them	 down	 sooner	 or	 later	 for	 the	 purpose	 utilizing	 the	 wood	 for	 building	 or	 other	 industrial	
purposes,	 they	 would	 be	 timber	 and	 accordingly	 be	 r egarded	 as	 movable	 proper ty	 (Shantabai v. 
State of Bombay ,	AIR	1958	SC	532)
As	 per	 Section	 3(25),	 Gener al	 Clauses	 Act,	 1897	 Immovable	 proper ty	 shall	 include	 land,	 benefits	 to	
arise	 out	 of	 land	 and	 things	 attached	 to	 the	 ear th,	 or	 per manently	 fastened	 to	 anything	 attached	 to	
the	ear th.
In	 the	 case	 of	Sukry Kurdepa v. Goondakull (1872)	 cour t	 has	 e xplained	 that	 movability	 may	
be	 defined	 to	 be	 a	 capacity	 in~	 a	 thing	 of	 suffering	 alteration.	 On	 the	 other	 hand,	 if	 a	 thing	 cannot	
change	its	place	without	injur y	to	the	quality	it	is	immovable.
In	Marshall v. Green 	 (33	 L T	 404),	 ther e	 was	 a	 sale	 of	 tr ees	 wher e	 they	 wer e	 cut	 and	 taken	 away .	
The	Cour t	held	that	the	sale	was	not	that	of	immovable	proper ty .
Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines	proper ty	as:
“P roper ty ”	 means	 proper ty	 of	 any	 kind,	 whether	 movable	 or	 immovable,	 tangible	 or	 intangible,	
and	includes	any	right	or	inter est	in	such	proper ty .
Section 2 (11) of the Sale of Good Act, 1930 defines	proper ty	as:
“P roper ty ”	means	the	general	proper ty	in	goods,	and	not	mer ely	a	special	proper ty .
Basis Movable Property Immovable Property
(a)	Movement	of	
proper ty
The	movable	proper ty	can	
easily	be	transpor ted	from	
one	place	to	another ,	without	
changing	its	shape,	capacity ,	
quantity	or	quality .
The	immovable	proper ty	cannot	
easily	be	transpor ted	from	one	place	
to	another .	
(b)		T ransfer Mer e	deliver y	with	intention	to	
transfer	the	movable	proper ty	
completes	the	transfer
Mer e	deliver y	does	not	sufficient	for	
a	valid	transfer .	The	proper ty	must	
be	r egister ed	in	the	name	of	the	
transfer ee
(c)	Registration Registration	of	movable	
proper ty	is	optional	under	the	
Registration	Act	1908
Registration	of	immovable	proper ty	
is	compulsor y/	mandator y	under	the	
Registration	Act	1908,		subject	to	
the	condition	that	its	value	e xceeds	
Rs.100
(d)	L egal	provision T ransfer	of	movable	proper ty	
is	r egulated	by	Sales	of	goods	
Act	1932
T ransfer	of	immovable	proper ty	is	
r egulated	by	T ransfer	of	P roper ty	Act	
1882
74
III.  TRANSFER
T ransfer	 of	 proper ty	 is	 an	 act	 of	 conveying	 proper ty	 from	 one	 person	 to	 another ,	 in	 the	 pr esent	
or	 futur e.	 Matters	 r elating	 to	 the	 proper ty	 ar e	 gover ned	 by	 the	 T ransfer	 of	 P roper ty	 Act,	 1882	 in	
India.	 The	 object	 of	 the	 T ransfer	 of	 P roper ty	 Act	 is	 to	 r egulate	 the	 transfer	 of	 proper ty	 between	 living	
persons.	It	shall	also	ser ve	as	the	code	of	contract	law	gover ning	immovable	proper ty .
The	 T ransfer	 of	 P roper ty	 Act,	 1882	 provides	 clarity	 on	 the	 subject:	 it	 is	 a	 systematic	 and	 unifor m	 law	
on	the	transfer	of	immovable	proper ty	in	India.		
The	 transfer	 of	 proper ty	 may	 also	 take	 place	 by	 inherita nce	 and	 succession.	 The	 laws	 r elating	 to	 such	
transfer	ar e	gover ned	by	the	r espective	r eligious	laws	or	practices,	as	the	case	may	be.	
Who can transfer property?
Any	 person	 who	 is	 competent	 to	 contract	 (person	 above	 18	 years	 of	 age,	 having	 a	 sound	 mind	 and	
not	 disqualified	 by	 any	 law	 in	 for ce)	 and	 authorized	 to	 dispose	 of	 proper ty	 viz.,	 owner	 of	 the	 proper ty	
or	 any	 person 	 authorized	 to	 sell	 the	 proper ty ,	 can	 make	 a	 transfer .	 The	 person	 who	 transfers	 the	
proper ty	 is	 called	 the	 transferor	 and	 the	 person	 to	 whom	 the	 transfer	 is	 made	 is	 called	 the	 transfer ee.	
According	 to	 section	 8	 of	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 (The	 Act),	 by	 transfer ring	 proper ty ,	 the	
transferor	transfers	all	rights	in	a	proper ty .
Essentials of a valid transfer
With regard to the law of property, a transfer is a process of conveying the rights and 
liabilities with respect to a property by one person to another. It is therefore with the 
formation of an agreement culminating into a contract that the transfer of property takes 
place. 
(T ransfer	 may	 be	 by	 agr eement	 between	 par ties	 i.e.	 by	 contract-	 e xplained	 in	 upcoming	 chapter	 of	
contracts-	 transfer	 by	 will	 or	 succession -	 her e	 in	 this	 chapter	 we	 ar e	 dealing	 with	 transfer	 by	 agr eement	
between	par ties)
The	following	ar e	the	essentials	for	a	valid	transfer	of	proper ty :
•							In	a	transfer	of	proper ty ,	the	transfer	should	be	between	two	or	mor e	living	persons.
•	 	 	 	 	 	 	 The	 proper ty	 that	 is	 going	 to	 be	 transfer r ed	 shoul d	 be	 fr ee	 from	 encumbrances	 (hindrances	 of	
any	for m)	and	be	of	a	transferable	natur e.
•	 	 	 	 	 	 	 The	 transfer	 should	 not	 be:	 -	 for	 an	 unlawful	 object	 or	 an	 unlawful	 consideration	 (for	 a	 detailed	
understanding,	r efer	the	chapter	on	Contracts);
	 -								 involving	a	person	legally	disqualified	to	be	a	transferor	or	transfer ee.
•							The	transferor	who	transfers	the	proper ty	must:
	 -								 be	competent	to	make	the	transfer;
	 -								 be	entitled	to	the	transferable	proper ty ;
	 -								 be	authorized	to	dispose	off	the	proper ty	if	the	proper ty	is	not	his	own	proper ty .
•	 The	 transfer	 should	 be	 made	 according	 to	 the	 appropriate	 mode	 of	 transfer .	 Necessar y	 for malities	
like	r egistration,	attestation,	etc.	should	be	complied	with.
•	 In	 the	 case	 of	 a	 conditional	 transfer ,	 wher e	 an	 inter est	 is	 cr eated	 on	 the	 fulfillment	 of	 a	 condition,	
the	condition	should	not	be	illegal,	immoral,	impossible	or	opposed	to	public	policy .
75
How can property be transferred?
1. Mode of transfer:
	 The	 mode	 of	 transfer	 of	 proper ty	 varies	 according	 to	 the	 value	 of	 the	 proper ty .	 If	 the	 value	 of	 the	
proper ty	 is	 mor e	 than	 Rs.	 100/-,	 then	 transfer	 has	 to	 be	 made	 only	 by	 a	 r egister ed	 instrument.	
If	 the	 proper ty	 is	 tangible	 wher e	 the	 value	 of	 the	 proper ty	 is	 less	 than	 Rs.	 100/-,	 then	 transfer	
has	 to	 be	 made	only	by	 deliver y ,	 wher eas	 for	 intangible 	 proper ty ,	 transfer	has	to	 be	 made	only	
by	 r egister ed	 instrument.	 (A	 r egister ed	 instrument	 contains	 the	 r ecords	 of	 the	 owner	 of	 the	
proper ty -	for	e xample:	shar es,	bonds,	etc.)
2.  Attestation:
	 A	 r egister ed	 instrumen t	 must	 be	 attested	 at	 least	 by	 two	 witnesses	 to	 the	 transfer .	 The	 definition	
of	 attestation	 is	 given	 in	 section	 3	 of	 the	 T ransfer	 of	 P roper ty	 Act	 1882.	 A ttestation	 means	
affixing	 the	 signatur e	 to	 the	 instrument	 for	 the	 transfer	 of	 proper ty .	 The	 witnesses	 should	 mark	
their	 signatur e	 too	 on	 the	 instrument	 with	 the	 intention	 to	 attest.	 The	 intention	 behind	 including	
this	provision	was	to	ensur e	that	transfer	was	done	with	the	fr ee	will	of	the	e xecutant.
3.  Registration:
	 Registration	 of	 the	 instrument	 is	 an	 essential	 legal	 for mality .	 During	 r egistration,	 the	 par ties	
to	 the	 transfer	 must	 be	 pr esent	 to	 affix	 their	 signatur es	 to	 the	 document	 and	 complete	 the	
transaction	 with	 r egard	 to	 immovable	 proper ty .	 While	 doing	 so ,	 the	 document	 for	 transfer	 must	
mention	clearly	the	rights,	obligations	and	liabilities	of	the	par ties	to	the	transfer .	
	 Registration	 shall	 take	 place	 by	 finally	 affixing	 a	 seal	 of	 the	 Registrar ’s	 office	 which	 shall	 be	
subsequently	included	in	the	official	r ecords.
Indian	 Registration	 Act	 is	 an	 act	 to	 consolidate	 the	 enactments	 r elating	 to	 the	 r egistration	 of	
documents.	 Registration	 means	 r ecording	 of	 the	 contents	 of	 the	 document.	 Section	 17	 of	 the	
Indian	 Registration	 Act	 1908,	 deals	 with	 the	 documents	 that	 ar e	 compulsor y	 to	 be	 r egister ed.
4.  Mutation:
	 Once	 a	 proper ty	 has	 been	 transfer r ed	 by	 way	 of	 r elinquishment,	 sale,	 or	 gift	 deed	 in	 the	 “ name”	
of	 the	 r ecipien t.	 It	 is	 also	 impor tant	 to	 have	 the	 transfer	 r ecorded	 in	 the	 municipal	 r ecords	 by	
way	of	mutation.
5.  Payment of fee:
	 Stamp	duty	on	transfer	is	payable	as	per	applicable	state	laws.		
In	Madam Pillai V. Badar Kali 	 (45	 Mad	 612	 (FB),	 the	 plaintiff	 being	 the	 first	 wife	 made	 a	 claim	
for	 maintenan ce	 to	 her	 husband.	 The	 husband	 orally	 transfer r ed	 his	 lands	 of	 the	 value	 of	 Rs.	 100/-	
to	 the	 plaintiff .	 L ater ,	 he	 e xecuted	 an	 instrument	 of	 sale	 in	 favour	 of	 the	 defendant	 for	 the	 same	
proper ty .	 The	 plaintiff	 initia ted	 a	 suit	 stating	 that	 the	 transfer	 was	 initially	 made	 in	 her	 favour	 and	
the	 subsequent	 sale	 to	 the	 defendant	 was	 not	 valid.	 The	 defendant	 stated	 that	 the	 transfer	 in	 favour	
of	 the	 plaintiff 	 failed	 for	 want	 of	 a	 r egister ed	 instrument.	 The	 Cour t	 held	 that	 -	 the	 plaintiff	 acquir ed	
a	 title	 by	 way	 of	 oral	 transfer	 and	 she	 is	 entitled	 to	 the	 proper ty	 though	 the	 instrument	 of	 sale	 was	
not	r egister ed.
IV.  DOCTRINE OF ELECTION
According	 to	 the	 principle	 of	 Doctrine	 of	 Election	 [Section	 35	 of	 the	 TP A],	 if	 a	 person	 to	 the	 transfer	
gets	 two	 selections	 (a	 benefit	 and	 a	 burden),	 then	 he	 has	 to	 accept	 both	 the	 benefit	 and	 the	 burden	
Page 5


Property Law
Learning Outcomes :
Students will be able to
•	 Understand	the	meaning	of	the	ter m	proper ty	and	transfer	of	proper ty
•	 Understand	 the	 types	 of	 proper ty	 under	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 and	 Sale	 of	 goods	
Act	1932
•	 Distinguish	between	the	types	of	proper ty	and	its	transfer
•	 Describe	the	Doctrine	of	Election	and	Doctrine	of	Lis	pendense
•	 Elaborate	the	process	of	transfer	of	proper ty
•	 Explain	the	differ ent	modes	in	which	an	immovable	proper ty	can	be	transfer r ed
I.  INTRODUCTION
Befor e	 the	 advent	 of	 the	 British	 kingdom,	 each	 community	 in	 India	 was	 gover ned	 by	 its	 r espective	
customar y	 law	 in	 matters	 r elating	 to	 transfer	 of	 proper ty .	 W ith	 the	 establishment	 of	 the	 for mal	 litigation	
system	 and	 in	 absence	 of	 any	 legislation	 in	 this	 ar ea,	 to	 begin	 with,	 the	 English	 judges	 applied	 the	
common	 law	 of	 England	 and	 the	 rules	 of	 equity ,	 justice	 and	 good	 conscience	 with	 r espect	 to	 disputes	
r elating	 to	 transfer	 of	 prope r ty .	 The	 unsuitability	 of	 these	 provisions	 to	 the	 Indian	 conditions;	 the	
r esulting	 conflict	 and	 the	 nee d	 for	 clarity	 of	 rules	 r elating 	 to	 this	 impor tant	 branch	 of	 law	 necessitated	
the	 ena ctment	 of	 legislation .	 Drafted	 in	 1870,	 the	 T ransfer	 of	 P roper ty	 Act	 saw	 the	 light	 of	 the	 day	
in	 1882 	 and	 provided	 the	 basic	 principles	 for	 transfer	 of	 both	 movable	 and	 immovable	 proper ties.	
Based	 primari ly	 on	 the	 English	 law	 of	 ‘Real	 P roper ty ’,	 it	 attempted	 to	 mould	 these	 principles	 to	 suit	
the	 Indian	 conditions	 ,	 mor eover ,	 a	 separate	 enactment	 titled	 the	 ‘Sale	 of	 Goods	 Act,	 1930’	 was	
passed	 to	 deal 	 with	 transfer	 of	 movable	 proper ty	 by	 sale.	 The	 T ransfer	 of	 P roper ty	 Act,	 1882	 contains	
the	 general	 principles	 of	 transfer	 of	 proper ty	 and	 detailed	 rules	 with	 r espect	 to	 specific	 transfer	 of	
immovable	proper ty	by	sale,	e xchange,	mor tgage,	lease	and	gift.	
II.  TYPES OF PROPERTY
The	 word	property has	 not	 been	 defined	 in	 the	 Act,	 but	 it	 has	 a	 ver y	 wide	 meaning	 and	 includes	
proper ties	 of	 all	 descriptions .	 It	 includes	 movable	 prope r ties	 such	 as	 cases,	 books,	 etc.,	 and	 includes	
immovable	 proper ties	 also	 such	 as	 lands	 or	 houses.	 It	 also	 includes	 intangible	 proper ties	 such	 as	
ownership,	tenancy ,	copyrights,	etc.
As	 per	 Section	 3,	 the	 immov able	 proper ty	 does	 not	 include	 standing	 timber ,	 growing	 crop	 and	 grass.	
Standing timbers: standin g	 timbers	 ar e	 tr ees	 fit	 for	 use	 for	 building	 or	 r epairing	 houses.	 The	 word	
standing	 timber	 includes	 Babool	 T r ee,	 Shisham,	 P eepal,	 Banyan,	 T eak,	 Bamboo ,	 etc.	 The	 fruit-bearing	
tr ees	 like	 Man go ,	 Jackfruit,	 Jamun,	 etc.,	 ar e	 not	 standin g	 timber ,	 and	 they	 ar e	 immovable	 proper ties	
(Fatimabibi v. Arrfana Begum ,	AIR	1980	All	394).
CHAPTER
3(C)
Growing Crop: It	 includes 	 all	 vegetable	 growths	 which	 have	 no	 e xistence	 apar t	 from	 their	 produce	
such	as	pan	leave,	sugar cane	etc
Grass: Grass	 is	 a	 movable	 proper ty ,	 but	 if	 it	 is	 right	 to	 cut	 grass	 it	 would	 be	 an	 inter est	 in	 land	 and	
hence	for ms	immovable	proper ty .
Whether	 tr ees	 can	 be	 r egarde d	 as	 movable	 or	 immovable 	 depends	 upon	 the	 cir cumstances	 of	 the	 case.	
If	 the	 intention 	 is	 that	 tr ees	 should	 continue	 to	 have	 the	 benefit	 of	 fur ther	 sustenance	 or	 nutriment	 by	
the	 soil	 (land) ,	 e.g.,	 enjoinin g	 their	 fruits,	 then	 such	 tr ee	 is	 immovable	 proper ty .	 But	 if	 the	 intention	
is	 to	 cut	 them	 down	 sooner	 or	 later	 for	 the	 purpose	 utilizing	 the	 wood	 for	 building	 or	 other	 industrial	
purposes,	 they	 would	 be	 timber	 and	 accordingly	 be	 r egarded	 as	 movable	 proper ty	 (Shantabai v. 
State of Bombay ,	AIR	1958	SC	532)
As	 per	 Section	 3(25),	 Gener al	 Clauses	 Act,	 1897	 Immovable	 proper ty	 shall	 include	 land,	 benefits	 to	
arise	 out	 of	 land	 and	 things	 attached	 to	 the	 ear th,	 or	 per manently	 fastened	 to	 anything	 attached	 to	
the	ear th.
In	 the	 case	 of	Sukry Kurdepa v. Goondakull (1872)	 cour t	 has	 e xplained	 that	 movability	 may	
be	 defined	 to	 be	 a	 capacity	 in~	 a	 thing	 of	 suffering	 alteration.	 On	 the	 other	 hand,	 if	 a	 thing	 cannot	
change	its	place	without	injur y	to	the	quality	it	is	immovable.
In	Marshall v. Green 	 (33	 L T	 404),	 ther e	 was	 a	 sale	 of	 tr ees	 wher e	 they	 wer e	 cut	 and	 taken	 away .	
The	Cour t	held	that	the	sale	was	not	that	of	immovable	proper ty .
Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines	proper ty	as:
“P roper ty ”	 means	 proper ty	 of	 any	 kind,	 whether	 movable	 or	 immovable,	 tangible	 or	 intangible,	
and	includes	any	right	or	inter est	in	such	proper ty .
Section 2 (11) of the Sale of Good Act, 1930 defines	proper ty	as:
“P roper ty ”	means	the	general	proper ty	in	goods,	and	not	mer ely	a	special	proper ty .
Basis Movable Property Immovable Property
(a)	Movement	of	
proper ty
The	movable	proper ty	can	
easily	be	transpor ted	from	
one	place	to	another ,	without	
changing	its	shape,	capacity ,	
quantity	or	quality .
The	immovable	proper ty	cannot	
easily	be	transpor ted	from	one	place	
to	another .	
(b)		T ransfer Mer e	deliver y	with	intention	to	
transfer	the	movable	proper ty	
completes	the	transfer
Mer e	deliver y	does	not	sufficient	for	
a	valid	transfer .	The	proper ty	must	
be	r egister ed	in	the	name	of	the	
transfer ee
(c)	Registration Registration	of	movable	
proper ty	is	optional	under	the	
Registration	Act	1908
Registration	of	immovable	proper ty	
is	compulsor y/	mandator y	under	the	
Registration	Act	1908,		subject	to	
the	condition	that	its	value	e xceeds	
Rs.100
(d)	L egal	provision T ransfer	of	movable	proper ty	
is	r egulated	by	Sales	of	goods	
Act	1932
T ransfer	of	immovable	proper ty	is	
r egulated	by	T ransfer	of	P roper ty	Act	
1882
74
III.  TRANSFER
T ransfer	 of	 proper ty	 is	 an	 act	 of	 conveying	 proper ty	 from	 one	 person	 to	 another ,	 in	 the	 pr esent	
or	 futur e.	 Matters	 r elating	 to	 the	 proper ty	 ar e	 gover ned	 by	 the	 T ransfer	 of	 P roper ty	 Act,	 1882	 in	
India.	 The	 object	 of	 the	 T ransfer	 of	 P roper ty	 Act	 is	 to	 r egulate	 the	 transfer	 of	 proper ty	 between	 living	
persons.	It	shall	also	ser ve	as	the	code	of	contract	law	gover ning	immovable	proper ty .
The	 T ransfer	 of	 P roper ty	 Act,	 1882	 provides	 clarity	 on	 the	 subject:	 it	 is	 a	 systematic	 and	 unifor m	 law	
on	the	transfer	of	immovable	proper ty	in	India.		
The	 transfer	 of	 proper ty	 may	 also	 take	 place	 by	 inherita nce	 and	 succession.	 The	 laws	 r elating	 to	 such	
transfer	ar e	gover ned	by	the	r espective	r eligious	laws	or	practices,	as	the	case	may	be.	
Who can transfer property?
Any	 person	 who	 is	 competent	 to	 contract	 (person	 above	 18	 years	 of	 age,	 having	 a	 sound	 mind	 and	
not	 disqualified	 by	 any	 law	 in	 for ce)	 and	 authorized	 to	 dispose	 of	 proper ty	 viz.,	 owner	 of	 the	 proper ty	
or	 any	 person 	 authorized	 to	 sell	 the	 proper ty ,	 can	 make	 a	 transfer .	 The	 person	 who	 transfers	 the	
proper ty	 is	 called	 the	 transferor	 and	 the	 person	 to	 whom	 the	 transfer	 is	 made	 is	 called	 the	 transfer ee.	
According	 to	 section	 8	 of	 the	 T ransfer	 of	 P roper ty	 Act	 1882	 (The	 Act),	 by	 transfer ring	 proper ty ,	 the	
transferor	transfers	all	rights	in	a	proper ty .
Essentials of a valid transfer
With regard to the law of property, a transfer is a process of conveying the rights and 
liabilities with respect to a property by one person to another. It is therefore with the 
formation of an agreement culminating into a contract that the transfer of property takes 
place. 
(T ransfer	 may	 be	 by	 agr eement	 between	 par ties	 i.e.	 by	 contract-	 e xplained	 in	 upcoming	 chapter	 of	
contracts-	 transfer	 by	 will	 or	 succession -	 her e	 in	 this	 chapter	 we	 ar e	 dealing	 with	 transfer	 by	 agr eement	
between	par ties)
The	following	ar e	the	essentials	for	a	valid	transfer	of	proper ty :
•							In	a	transfer	of	proper ty ,	the	transfer	should	be	between	two	or	mor e	living	persons.
•	 	 	 	 	 	 	 The	 proper ty	 that	 is	 going	 to	 be	 transfer r ed	 shoul d	 be	 fr ee	 from	 encumbrances	 (hindrances	 of	
any	for m)	and	be	of	a	transferable	natur e.
•	 	 	 	 	 	 	 The	 transfer	 should	 not	 be:	 -	 for	 an	 unlawful	 object	 or	 an	 unlawful	 consideration	 (for	 a	 detailed	
understanding,	r efer	the	chapter	on	Contracts);
	 -								 involving	a	person	legally	disqualified	to	be	a	transferor	or	transfer ee.
•							The	transferor	who	transfers	the	proper ty	must:
	 -								 be	competent	to	make	the	transfer;
	 -								 be	entitled	to	the	transferable	proper ty ;
	 -								 be	authorized	to	dispose	off	the	proper ty	if	the	proper ty	is	not	his	own	proper ty .
•	 The	 transfer	 should	 be	 made	 according	 to	 the	 appropriate	 mode	 of	 transfer .	 Necessar y	 for malities	
like	r egistration,	attestation,	etc.	should	be	complied	with.
•	 In	 the	 case	 of	 a	 conditional	 transfer ,	 wher e	 an	 inter est	 is	 cr eated	 on	 the	 fulfillment	 of	 a	 condition,	
the	condition	should	not	be	illegal,	immoral,	impossible	or	opposed	to	public	policy .
75
How can property be transferred?
1. Mode of transfer:
	 The	 mode	 of	 transfer	 of	 proper ty	 varies	 according	 to	 the	 value	 of	 the	 proper ty .	 If	 the	 value	 of	 the	
proper ty	 is	 mor e	 than	 Rs.	 100/-,	 then	 transfer	 has	 to	 be	 made	 only	 by	 a	 r egister ed	 instrument.	
If	 the	 proper ty	 is	 tangible	 wher e	 the	 value	 of	 the	 proper ty	 is	 less	 than	 Rs.	 100/-,	 then	 transfer	
has	 to	 be	 made	only	by	 deliver y ,	 wher eas	 for	 intangible 	 proper ty ,	 transfer	has	to	 be	 made	only	
by	 r egister ed	 instrument.	 (A	 r egister ed	 instrument	 contains	 the	 r ecords	 of	 the	 owner	 of	 the	
proper ty -	for	e xample:	shar es,	bonds,	etc.)
2.  Attestation:
	 A	 r egister ed	 instrumen t	 must	 be	 attested	 at	 least	 by	 two	 witnesses	 to	 the	 transfer .	 The	 definition	
of	 attestation	 is	 given	 in	 section	 3	 of	 the	 T ransfer	 of	 P roper ty	 Act	 1882.	 A ttestation	 means	
affixing	 the	 signatur e	 to	 the	 instrument	 for	 the	 transfer	 of	 proper ty .	 The	 witnesses	 should	 mark	
their	 signatur e	 too	 on	 the	 instrument	 with	 the	 intention	 to	 attest.	 The	 intention	 behind	 including	
this	provision	was	to	ensur e	that	transfer	was	done	with	the	fr ee	will	of	the	e xecutant.
3.  Registration:
	 Registration	 of	 the	 instrument	 is	 an	 essential	 legal	 for mality .	 During	 r egistration,	 the	 par ties	
to	 the	 transfer	 must	 be	 pr esent	 to	 affix	 their	 signatur es	 to	 the	 document	 and	 complete	 the	
transaction	 with	 r egard	 to	 immovable	 proper ty .	 While	 doing	 so ,	 the	 document	 for	 transfer	 must	
mention	clearly	the	rights,	obligations	and	liabilities	of	the	par ties	to	the	transfer .	
	 Registration	 shall	 take	 place	 by	 finally	 affixing	 a	 seal	 of	 the	 Registrar ’s	 office	 which	 shall	 be	
subsequently	included	in	the	official	r ecords.
Indian	 Registration	 Act	 is	 an	 act	 to	 consolidate	 the	 enactments	 r elating	 to	 the	 r egistration	 of	
documents.	 Registration	 means	 r ecording	 of	 the	 contents	 of	 the	 document.	 Section	 17	 of	 the	
Indian	 Registration	 Act	 1908,	 deals	 with	 the	 documents	 that	 ar e	 compulsor y	 to	 be	 r egister ed.
4.  Mutation:
	 Once	 a	 proper ty	 has	 been	 transfer r ed	 by	 way	 of	 r elinquishment,	 sale,	 or	 gift	 deed	 in	 the	 “ name”	
of	 the	 r ecipien t.	 It	 is	 also	 impor tant	 to	 have	 the	 transfer	 r ecorded	 in	 the	 municipal	 r ecords	 by	
way	of	mutation.
5.  Payment of fee:
	 Stamp	duty	on	transfer	is	payable	as	per	applicable	state	laws.		
In	Madam Pillai V. Badar Kali 	 (45	 Mad	 612	 (FB),	 the	 plaintiff	 being	 the	 first	 wife	 made	 a	 claim	
for	 maintenan ce	 to	 her	 husband.	 The	 husband	 orally	 transfer r ed	 his	 lands	 of	 the	 value	 of	 Rs.	 100/-	
to	 the	 plaintiff .	 L ater ,	 he	 e xecuted	 an	 instrument	 of	 sale	 in	 favour	 of	 the	 defendant	 for	 the	 same	
proper ty .	 The	 plaintiff	 initia ted	 a	 suit	 stating	 that	 the	 transfer	 was	 initially	 made	 in	 her	 favour	 and	
the	 subsequent	 sale	 to	 the	 defendant	 was	 not	 valid.	 The	 defendant	 stated	 that	 the	 transfer	 in	 favour	
of	 the	 plaintiff 	 failed	 for	 want	 of	 a	 r egister ed	 instrument.	 The	 Cour t	 held	 that	 -	 the	 plaintiff	 acquir ed	
a	 title	 by	 way	 of	 oral	 transfer	 and	 she	 is	 entitled	 to	 the	 proper ty	 though	 the	 instrument	 of	 sale	 was	
not	r egister ed.
IV.  DOCTRINE OF ELECTION
According	 to	 the	 principle	 of	 Doctrine	 of	 Election	 [Section	 35	 of	 the	 TP A],	 if	 a	 person	 to	 the	 transfer	
gets	 two	 selections	 (a	 benefit	 and	 a	 burden),	 then	 he	 has	 to	 accept	 both	 the	 benefit	 and	 the	 burden	
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or	 none .	 He	 cannot	 accept	 the	 benefit	 and	 r eject	 the	 burden	 in	 a	 single	 transaction.	 	 	 In	 other	 words,	
while	claiming	advantage	of	an	instrument,	the	burden	of	the	instrument	should	also	be	accepted.
Illustration: A	 sells	 his	 garden	 as	 well	 as	 his	 house	 through	 one	 instrument	 to	 B.	 Wher eas,	 B	 wants	
to	 r etain	 only 	 the	 house	 and	 wants	 to	 cancel	 the	 transfer	 r egarding	 the	 garden.	 According	 to	 the	
Doctrine	 of	 Election,	 B	 has	 to	 r etain	 the	 garden	 if	 he	 wants	 to	 r etain	 the	 house,	 or	 cancel	 the	 whole	
transaction.	B	cannot	r etain	the	house	and	cancel	the	transfer	r egarding	the	garden.
The	 doctrine	 of	 election	 is	 based	 on	 the	 principle	 of	 equity	 that	 one	 cannot	 take	 what	 is	 beneficial	 to	
him	 and	 disapprove	 that	 which	 is	 against	 him	 under	 the	 same	 instrument.	 The	 L atin	 maxim	 “quod	
approbo	 non	 r eprobo ”	 means	 that	 ‘ no	 one	 can	 approbate	 and	 r eprobate.’	 In	 other	 words,	 a	 person	
cannot	 accept	 a	 thing	 and	 r eject	 another	 in	 the	 same	 instrument.	 This	 maxim	 is	 one	 of	 the	 underlying	
principles	 of	 doctrine	 of	 election.	 In	 simple	 words,	 wher e	 a	 person	 takes	 some	 benefit	 under	 a	 deed	
or	instrument,	he	must	also	bear	its	burden.
“quod	 approbo	 non	 r eprobo ”	 -	 Approbate	 and	 r eproba te	 means	 to	 approve	 and	 disapprove.	 This	
principle	 is	 based	 on	 the	 maxim	 ‘quod	 approbo	 non	 r eprobo ’	 which	 translates	 to	‘that which I 
approve, I cannot disapprove’ .	 Ther efor e,	 an	 individ ual	 has	 to	 either	 accept	 the	 whole	 contract,	
order	etc.	or	r eject	the	whole	thing.
The	 principle	 of	 the	 doctrine	 of	 election	 was	 e xplained 	 by	 the	 House	 of	 Lords	 in	 the	 leading	 case	
of	Cooper vs. Cooper .	 In	 Cooper	 v .	 Cooper ,	 Lord	 Hather	 e xplained	 the	 prin ciple	 underlying	 the	
doctrine	 of	 election	 in	 the	 following	 words,	 “	 ….	 ther e	 is	 an	 obligation	 on	 him	 who	 takes	 a	 benefit	
under	 a	 will	 or	 other	 instrument	 to	 give	 full	 effect	 to	 that	 instrument	 under	 which	 he	 takes	 a	 benefit	
;	 and	 if	 it	 be	 found	 that	 instrument	 purpor ts	 to	 deal	 with	 something	 which	 it	 was	 beyond	 the	 power	
of	 the	 donor	 or	 settlor	 to	 dispose	 of	 ,	 but	 to	 which	 effect	 can	 be	 given	 by	 the	 concur r ence	 of	 him	
who	 r eceives	 a	 benefit	 under	 the	 same	 instrument,	 the	 law	 will	 impose	 on	 him	 who	 takes	 the	 benefit	
the	 obligation 	 of	 car r ying	 the	 instrument	 into	 full	 and	 complete	 for ce	 and	 effect	 .”	 Section	 35	 of	
the	 T ransfer	 of	 P roper ty	 Act,	 1882	 embodied	 the	 doctrine	 of	 election.	 The	 Cour t	 also	 held	 that	 the	
doctrine	of	election	applied	on	ever y	instrument	and	all	types	of	proper ty .
V.  DOCTRINE OF LIS PENDENS
Doctrine	 of	lis pendens 	 is	 embodied	 in	 Section	 52	 of	 the	 T ransfer	 of	 P roper ty	 Act,	 1882.	Lis pendens 
literally	means	a	pending	suit.
The	 doctrine	 states	 that	 a	 proper ty	 under	 a	 pending	 suit	 should	 not	 be	 transfer r ed	 to	 a	 third-par ty	
during	 a	 pending	 suit	 in	 such	 a	 way	 it	 affects	 the	 rights	 of	 any	 par ty	 concer ned	 with	 the	 proper ty .	 That	
means,	 no	 new	 inter est	 should	 be	 cr eated	 by	 way	 of	 transfer	 of	 a	 proper ty	 during	 the	 pendency	 of	 a	
suit	r elating	to	it.	
The	 Doctrine	 of	 lis	 pendens	 emerged	 from	 the	 L atin	 maxim	 ‘ut	 lite	 pendent	 nihil	 innoveteur ’	 meaning	
‘ nothing	new	should	be	introduced	in	a	pending	litigation ’.	
The	 objective	 of	 the	 doctrine	 of	lis pendens 	 is	 to	 subjugate	 all	 par ties	 to	 a	 pending	 litigation	 of	 a	
proper ty ,	 to	 the	 authoritativ e	 decision	 of	 the	 Cour t.	 The	 doctrine	 r eflects	 the	 control	 which	 a	 cour t	
acquir es	over	proper ty	involved	in	a	pending	suit	until	its	final	judgment.
When	 a	 suit	 or	 litigation	 is	 pending	 on	 an	 immovable	 proper ty ,	 then	 that	 immovable	 proper ty	 cannot	
be	transfer r ed.	
T o	constitute	lis pendens ,	the	following	conditions	should	be	satisfied:
•	 A	suit	or	proceeding	involving	the	immovable	proper ty	should	be	pending;
•	 The	right	to	the	immovable	proper ty	must	be	in	question	in	the	suit	or	proceeding;