TRANSFER OF PROPERTY ACT, 1882

Facts: The Appellants had acquired a right through a contract to enter upon fishing lands and this was done before the abolishment of estates by the State government. Following its abolishment, the Appellants sought to enforce this contract in the new regime to, which the state government denied. The question arose whether fishing on lands constituted profit pendre and if that formed part of immovable property

Held: Profits pendre form part of immovable property as benefits arising out of land and are transferred along with immovable property. Though the appeal was dismissed due to it being a matter of contractual dispute and not writ petition.

Facts: The party was given a right of felling, cutting and removing bamboo trees from a forest through the grant of a license. Predominantly it was a tax matter and for its determination the contention of felling bamboo tree being part of immovable property per benefits arising out of land or not.

Held: Upholding the ratio of the Ananda Behera case the court held that the felling of bamboo trees in a forest area are profits pendre and a part of immovable property.

Facts: Appellants filed a suit for recovery of debts based on the charge created on the mortgage. The recovery of money was sought through the sale of the items listed specifically in the books. However, the mortgagee objected to such sale, claiming there was no notice of the charge.

Held: The proviso to Explanation 1 to section 3 of the Transfer of Property Act, provides that in order to amount to constructive notice it is necessary - (i) that the instrument has been registered and its registration completed in the manner required by the Registration Act; (ii) the instrument has been duly entered or filed in books kept under section 51 of the Registration Act; and (iii) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indices kept under section 55 of Registration Act.

Facts: Assessee was a partner in Messrs Suvas Trading Company, a partnership firm constituted under a deed of partnership dated September 27, 1973. As his contribution to the capital of the partnership firm, the assessee made over certain shares of limited companies which were held by him as his capital assets. Due to the valuation method adopted there was a difference in the amounts reflecting in the book. Income tax officer directing him to make amends, asking him to compute the capital gains arising out of the transfer of shares. The issue pertinently become one of whether there was a transfer of rights and if such transfer was of absolute rights?

Held: That in its general sense, the expression transfer of property connotes the passing of rights in the property from one person to another. In one case there may be a passing of the entire bundle of rights from the transferor to the transferee. In another case, the transfer may consist of one of the estates only out of all the estates comprising the totality of rights in the property. In a third case, there may be a reduction of the exclusive interest in the totality of rights of the original owner into a joint or shared interest with other persons. In the instant case the transfer was of the third type and therefore absolute rights were transferred and shared amongst the transferor and transferee.

Facts: The petitioner, a company incorporated under the Companies Act, claims that one Ramnath and his family members sold two and half acres of land in Wazirabad village, Gurgoan to them by means of an agreement of sale, General Power of Attorney (for short `GPA') and a will in the year 1991 for a consideration of Rs.716,695/-. It is further alleged that the petitioner verbally agreed to sell a part of the said property measuring one acre to one Dharamvir Yadav for Rs.60 lakhs in December 1996. It is stated that the said Dharamvir Yadav, and his son Mohit Yadav (an ex MLA and Minister), instead of proceeding with the transaction with the petitioner, directly got in touch with Ramanath and his family members and in 1997 got a GPA in favour of Dharamvir Yadav in regard to the entire two and half acres executed and registered and illegally cancelled the earlier GPA in favour of petitioner.

Held: Immovable property could be legally and lawfully transferred/conveyed only by registered deed of conveyance, Transactions of nature of GPA sales or SA/GPA/WILL transfers did not convey title and did not amount to transfer, nor could they be recognized or valid mode of transfer of immoveable property. SA/GPA/WILL transactions were not transfers or sales and that such transactions could not be treated as completed transfers or conveyances. They could be continue to be treated as existing agreement of sale. However, nothing prevented affected parties from getting registered Deeds of Conveyance to complete their title. SA/GPA/WILL transactions could also be used to obtain specific performance or to defend possession under Section 53A of Act.

Facts: The Zoroastrian Co-operative Housing Society is a society registered on 19.5.1926, under the Bombay Co-operative Societies Act, 1925. As per the bye-laws, the objects of the Society were to carry on the trade of building, and of buying, selling, hiring, letting and developing land in accordance with Co-operative principles and to establish and carry on social, re-creative and educational work in connection with its tenets and the Society was to have full power to do all things it deemed necessary or expedient, for the accomplishment of all objects specified in its bye-laws, including the power to purchase, hold, sell, exchange, mortgage, rent, lease, sub-lease, surrender, accept surrenders of and deal with lands of any tenure and to sell by installments and subject to any terms or conditions and to make and guarantee advances to members for building or purchasing property and to erect, pull down, repair, alter or otherwise deal with any building thereon.

Held: That when a person accepts membership in a cooperative society by submitting himself to its bye laws and places on himself a qualified restriction on his right to transfer property by stipulating that same would be transferred with prior consent of society to a person qualified to be a member of society, it could not be held to be an absolute restraint on alienation offending Section 10 of Transfer of Property Act. Hence finding of High Court that restriction placed on rights of members of a society to deal with property allotted to him was invalid as an absolute restraint on alienation, held unsustainable and set aside

Facts: The suit property belonged to one Smt. Ramakkal Ammal wife of Pattabiraman of Uraiyur of Tiruchirapalli. She executed registered Will dated 22.9.1951 in respect of her properties and created life interest in favour of her two sisters, namely, Savithiri Ammal and Rukmani Ammal with a stipulation that after their death their male heirs will acquire absolute right in `A' and `B' properties respectively subject to the rider that they shall not sell the property to strangers.

Held: That two sisters of the testator, namely, Savithiri Ammal and Rukmani Ammal were to enjoy house properties jointly during their life time without creating any encumbrance and after their death, their male heirs were to get the absolute rights in 'A' and 'B' properties. The male heirs of two sisters could alienate their respective shares to other sharers on prevailing market value. It can thus be said that Smt. Ramakkal Ammal had indirectly conferred a preferential right upon the male heirs of her sisters to purchase the share of the male heir of either sisters. This was in the nature of a right of pre-emption which could be enforced by male heir of either sister in the event of sale of property by the male heir of other sister. If the term 'other sharers' used in Clause 11 is interpreted keeping in view the context in which it was used in the Will, there can be no manner of doubt that it referred to male heirs of other sister. The only restriction contained in Clause 11 was on alienation of property to strangers. In our view, the restriction which was meant to ensure that the property bequeathed by Smt. Ramakkal Ammal does not go into the hands of third party was perfectly valid and did not violate the rule against perpetuity

Facts: Under the award from an arbitration suit for partition, two of the four blocks, A, B, C & D, into which the properties were divided by the arbitrators, namely, blocks A and C, were allotted to Tulshidas and the remaining two blocks, B and D were allotted to Kishorilal. Two common passages marked as X and Y and a common drain Z were kept joint. The petitioner before us is defendant No. 2. The suit out of which this application arises was one for a declaration that the plaintiffs respondents, were entitled to pre-emption and that defendant No. 2 was bound to convey the disputed property to the plaintiffs on payment of actual consideration and for a decree for pre-emption against the defendant calling upon him to execute a conveyance in favour of the plaintiffs on payment of consideration.

Held: We are accordingly of the opinion that the covenant for pre-emption in this case does not offend the rule against perpetuities and cannot be considered to be void in law. Reading section 14 along with section 54 of the Transfer of Property Act its manifest that a mere contract for sale of immovable property does not create any interest in the immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit to it. For an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promisor either gratuitously or takes for value but with notice.

Facts: This appeal by the plaintiff arises out of a suit wherein the appellant claimed 1/5 share of her deceased husband in the properties left by her father-in-law, Dr. N.S Nanjundiah, on the basis of a Will executed by Dr.Nanjundiah on March 13, 1935. As indicated earlier, in the Will dated March 13, 1935 the immovable and moveable properties of the testator were specified in four groups specified in Schedules "A", "B","C" and "D" attached with the Will. Schedule "A" consists of four items of immovable properties. Item No. 1 is house No. 318, 3rd Road, Margosa Avenue, Malleswaram City and items Nos. 2, 3 and 4 are agricultural lands. Schedule "B" consists of shares and securities standing in the name of Smt. Nadiga Nanjamma. Schedule "C" consists of thrift deposit accounts in the Bank of Mysore Limited standing An the names of five sons of the testator. Schedule "D" consists of shares and securities and fixed deposits in banks.

Held: An interest is said to be a vested interest when thee is immediate right of present enjoyment or a present right for future enjoyment. An interest is said to be contingent if the right of enjoyment is made dependent upon some event. or condition which may or may not happen. On the happening of the event or condition a contingent interest becomes a vested interest.

Facts: Ramani created an endowment in respect of some of his properties in favour of his family deity and appointed his three sons as shebaits. After the death of Rabindra his widow Santi Debi, instituted a suit against the other members of the family in 1941 for a declaration that she, as the heir of her deceased husband, was entitled to function as a shebait in the place of her husband. The suit terminated in a compromise recognising the right of Santi Debi as a co-shebait. Ramani and his two sons, Rajes and Ramendra, filed a suit against Santi Debi, for a declaration that the above mentioned compromise decree was null and void as the marriage of Santi Debi with Rabindra was a nullity. During the pendency of that suit, Ramani executed a registered trust deed in respect of his entire properties. The eldest of the sons, Rajes, was appointed thereunder as the sole trustee to hold the properties under trust subject to certain powers and obligations. Ramani died. Some time thereafter the suit was compromised. By the said compromise Santi Debi gave up her rights under the previous compromise decree and agreed to receive for her natural life a monthly allowance of Rs. 475 payable from the month of November, 1946. It was one of terms of the compromise that on default of payment Santi Debi will be entitled to realise the same by means of execution of the decree. The monthly allowance was regularly paid up to the end of February, 1948, and thereafter payment was defaulted. Santi Debi filed an application for execution to realise the arrears of her monthly allowance from March, 1948, to July, 1949, amounting to Rs. 8,075 against both the brothers. Rajes filed an objection to the execution on various grounds. Ramendra has not filed, or joined in, any such application and has apparently not contested the execution. The present contest in both the courts below and here is only between Rajes and Santi Debi. An order was passed by the Subordinate Judge over-ruling the objections raised by Rajes. An appeal was take therefrom to the High Court at Calcutta which was dismissed by its judgment under appeal. Hence the present appeal in which Rajes is the appellant, while Santi Debi is the first respondent and Ramendra is the second respondent.

Held: The appellant had a vested interest but the enjoyment of the properties was restricted so long as the debts were not discharged, and as regards the house, L, enjoyment was further restricted to the extent that it was subject to the right of residence of his brother and his heirs until the obligation to provide alternative accommodation was discharged by the appellant or his heirs. Where a compromise decree provides both for a personal remedy and a charge, the question whether the decree-holder can pursue the personal remedy while reserving the remedy under the charge depends on the intention to be gathered from the terms of the decree.

Facts: The donor (deceased) had made a donation of Rs. 30,000/- for the prupose of building a female hospital. He had conditioned the transfer upon the disctrict collector paying homeage to the donors late wife by laying a foundation stone in her name for sentimental purposes. The gift was accepted by the collector with the condition. However, the hospital was delayed in being and when it was the stone with the wife's name was removed entirely. The donors sons (legal representatives) brought forth the action for repayment of the 30,000 as the conditon was not complied with. The argument presented was this was a gift and not merely a transfer of property thereby such conditions are not precedent for the property to vest.

Held: It was held that as the transfer was conditional and uptill fulfiment of the condition, the goverment was a mere custodian of the cash. Thereby such a transfer cannot be deemed to be complete as the condition precedent was not fulfilled and the government is at fault. Thereby liable to repay back to the plaintiffs, the 30,000/-.

Facts: The appellant had the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934, the consideration was actually paid only three years thereafter i.e., on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mula Singh.

Held: The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception, the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. Thereby based on the facts and rule under section 41, this transaction cannot be one, conducted in good faith.

Facts: The appellant along with his father and mother, were the joint owners of the suit property. After the death of the appellant's mother, he and his father executed an agreement dated 23rd August, 1951 by which they severed their status as joint owners and agreed to hold the property as tenants in common. After Sohrab's death, his widow, the first respondent, and his minor sons, the second and third respondents, sold on 16th April, 1987 their undivided one half share in the property to the fourth respondent and his wife. On 18th April, 1987 the appellant filed a suit under section 44 of the Transfer of Property Act against the respondents inter alia on the ground that the suit property was a dwelling house belonging to an undivided family and strangers cannot be permitted.

Held: When a share in a dwelling-house is transferred without partition and the transferee attempted to take the possession of the property without maintaining a suit for partition, the other co-owners may restrain him from taking the possession. That since irreparable injury was likely to be caused by the entry of the transferee, an interim mandatory injection against vendors and vendees regarding possession could be issued. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession.

Facts: The property was matruka property of the deceased. Civil Suit No. 82/1935 was instituted by son of the deceased in Darul Qaza City Court for partition of matruka properties of the deceased comprised in Schedules 'A', 'B' and 'C'. The sale transaction took place during the pendency of the preliminary decree proceedings on 23.11.1959. The Legal Representatives of the Original Purchaser were entitled to the share of Defendant No. 1. On 6.10.1997, pending final decree proceedings, Plaintiff and Defendant Nos. 4 and 14 to 17 i.e. Legal Representatives of Defendant No. 5 assigned their interest in item No. 6 of plaint 'B' Schedule properties in favour of Containers Company. On 16.7.2001, Legal Representatives of the Original Purchaser filed application and sought impleadment to contest the matter in respect of item No. 6 of plaint 'B' Schedule properties. Vide order dated 14.10.2003, Legal Representatives of the Original Purchaser were impleaded.

Held: It was apparent that the sale deed was hit by doctrine of lis pendens and secondly on the basis of the said sale deed, Legal Representatives of the Original Purchaser could have claimed only to the extent of the share of his vendor and not the entire land, i.e. only to the extent of 14/104th share of Defendant No. 1. It was found that the Original Purchaser could have purchased only the share of his vendor and not the entire disputed property and the purchase was affected by lis pendens.

Facts: The appellants herein were the defendants in the suit brought by the plaintiff-respondents for recovery of the suit property and for mesne profit. On 9th July, 1964,Respondent no. 3 executed an agreement for sale of an agricultural land in favour. After the execution of the said agreement, it came to the notice of the appellant that the transferor is negotiating for sale of the said land in favour of respondent no. 1. Under such circumstances, the appellant brought a suit on 2nd August, 1965 for injunction restraining the transferor from selling the said land in favour of respondent no. 1. On 30th April, 1966 the trial court granted injunction as prayed for. It is the case of the appellants that despite the said injunction order, the transferor sold the said property through a registered sale deed dated 24th May, 1966 in favour of respondent no. 1.

Held: In the present case, it is not disputed that the transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and still ready and willing to perform his part of the contract.merely because the suit for specific performance at the instance of the vendee has become barred by limitation that by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession.

Facts: There are two properties in question. Respondent 2 had been granted certain overdraft facilities by the appellant Bank in 1989. In consideration for the grant of such facility, Respondent 2 undertook to create an equitable charge of the flat in favour of the appellant Bank. Undisputedly at that point of time Respondent 2 was not the owner of the flat. All it had in its possession was an agreement executed by the owner to sell the flat to Respondent 2. This agreement was deposited with the appellant Bank by way of security by Respondent 2. Defaults were committed by Respondent 2 in repayment of moneys under both the accounts. Two separate suits were filed by the appellant Bank for recovery of the amounts from Respondent 2.The suit filed by Respondent 1 against Respondent 2 was compromised and a consent decree was passed by which Respondent 1 became entitled to recover from Respondent 2 a sum of Rs 12,44,59,207 as principal together with interest thereon. After the consent decree was passed the appellant Bank withdrew its earlier notice of motion and filed a fresh notice of motion reiterating its earlier prayer. That application was dismissed by the impugned order. The Court held that so far as the flat was concerned there was no prior charge created in favour of the appellant Bank. As far as the land was concerned it was held that since there was only an undertaking to create a mortgage by Respondent 2, there was no question of the land being a security created in favour of the appellant Bank by Respondent 2.

Held: A contract for sale of immovable property does not create an interest or charge over such property. The agreement for sale which was deposited with the bank, was not one one through which respondent 2 agreed to sell the flat but was one where it was to sell the flat to respondent 2. Therefore, no interest was created in favour of Respondent 2 through the agreement, that he could transfer to the bank as a security.

Facts: Present appeal arose out of judgment passed by High Court dismissing Second Appeal thereby upholding oral gift by Wali Mohammed in favour of Respondent No. 1-Plaintiff and Will dated 30th September, 1970 and directing original Plaintiff-deceased Respondent No. 1 to pay mortgage amount and holding that, mortgage dated 21st November, 1967 registered on 12th January, 1968 shall stand redeemed and further directing Appellants-Defendants to handover vacant possession of property.

Held: Section 60 of Transfer of Property Act, 1882 provided that, at any time after money becomes due, mortgagor had a right, on payment or tender, at a proper time and place, of mortgage-money to require mortgagee to deliver mortgage deed and all documents relating to mortgaged property, and where mortgagee was in possession of mortgaged property, to deliver possession thereof to mortgagor. Right of redemption could be extinguished as provided in proviso to Section 60 of Transfer of Property Act. It could be extinguished either by act of parties or by decree of a court. Expression "act of parties" referred to some transaction subsequent to mortgage, standing barred from mortgage transaction. In this case Jamila Begum-one of mortgagees had purchased property by sale deed dated 21.12.1970 and thus, she purchased entire equity of redemption by execution of sale deed, mortgage qua Appellant had merged with sale.

Facts: The suit for possession was instituted by the Appellants and by proforma Respondent No. 2 against the first Respondent. The suit for possession was decreed and the first appeal was dismissed. On second appeal, the High Court while setting aside the judgment of the first appellate Court held that daughter of testator had created a tenancy in favour of the Defendant and the relationship of landlord and tenant did not cease to exist on her death. The remedy of the Appellants as owners was to seek eviction under prevailing rent control legislation and not by means of a suit for possession, treating the first Respondent as trespasser

Held: The Appellant postulates that a life interest was personal to the person who possesses it and the creation of a tenancy which would enure beyond her life amounts to a transfer of the life interest. What the submission overlooks was that the creation of the tenancy was an act of the person enjoying a life interest in the present case and was an incident of the authority of that individual to generate income from the property for her own sustenance. The creation of a tenancy was an incident of the exercise of such an authority. The life estate granted to daughter of testator enabled her to create a tenancy and receive the rent from the tenants on the property. The statutory protection afforded to the tenant did not cease to exist upon the death of daughter of testator. A suit for possession on the basis that the tenant was a trespasser after the death of daughter of testator was not maintainable.

Facts: Plaintiffs filed the suit against the Defendants for a declaration that the deed of exchange entered into between Defendant Nos. 1 and 2 in relation to an immovable property was invalid and for certain other relief. The trial court had come to the conclusion that the property in question was an ancestral property and that the Plaintiffs being the sons and grandson of Defendant No. 2, they had also equal share in the property allotted to him in the partition. The suit was accordingly decreed. The first Defendant challenged the said judgment and decree by filing an Appeal before the District Judge. The District Judge allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. The Plaintiffs filed a Second Appeal challenging the judgment and decree of the District Judge before the High Court. The High Court had set aside the judgment and decree of the District Judge and restored the judgment and decree of the trial court.

Held: It was clear from Section 118 of the TP Act that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is hundred rupees or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It was thus clear that in the case of exchange of property of value of hundred rupees and above, it could be made only by a registered instrument. In the instant case, the exchange deed had not been registered.

Facts: First Respondent-Plaintiff had filed suit for declaration to effect that, he was joint owner to extent of 435/924 shares i.e. 04-57 hectares in suit scheduled land. Trial Court by judgment had dismissed suit filed by first Respondent. Trial Court held that, donor Smt. Vidya Devi had never challenged gift deed during her lifetime. First Respondent-Plaintiff being a third party to gift deed, it was not open to him to challenge validity of gift on any ground. Further, trial Court had held that, evidence on record was not sufficient to hold that any fraud had been played on Smt. Vidya Devi for execution of gift deed. Plea of Plaintiff that as document of gift was evidenced by consideration of Rs. 5,000 same was in violation of provision under Section 122.

Held: A perusal of gift deed made it clear that, what was mentioned on first page of document, was valuation of property for purpose of stamp duty and registration charges which was arrived at Rs. 5,000, but not consideration received by donor for executing gift deed. Gift deed was correctly interpreted by trial Court and First Appellate Court. It is opined therefore, that due to the fact that the consideration in question was not for the property but for effecting the transfer costs, it was held that this was not barred by virtue of section 122.

Facts: The defendants are tenants of the disputed property on a monthly rent of Rupees 18/-. The property originally belonged to one Kanhaiyalal who died in the year 1933. Raj Kumar Agrawal is said to be the son of Kanhaiyalal. Smt. Nanhi Bibi is the widow of Kanhaiyalal. According to the plaintiff, Raj Kumar Agrawal was born seven months after the death of Kanhaiyalal and was the natural son of Kanhaiyalal. The property in dispute was sold by Smt. Nanhi Bibi to Smt. Tara Rani, plaintiff-respondent on 7-3-1967. It was then realised that the property belonged to Raj Kumar Agrawal who was the natural son of Kanhaiyalal. Raj Kumar Agrawal then executed another sale-deed on 24-4-1967 in favour of Smt. Tara Rani. Smt. Tara Rani then served a notice on the defendants alleging that they were in arrears of rent and that their tenancy was terminated in accordance to Section 106 of the Transfer of Property Act. After this notice, the suit for ejectment and arrears of rent was filed.

Held: The contention of the appellant was that it was a transferable and actionable claim and as provided under Section 131 of the Transfer of Property Act, there being no notice of transfer of actionable claim in writing, the suit was not maintainable. After an actionable claim is transferred in accordance with Section 130 of the Transfer of Property Act, the Debtor may have dealing with the original owner and he is estopped from having dealing with the original owner, the moment the transferor has a notice under Section 131 of the Transfer of Property Act. Actionable claim can be transferred only by execution of an instrument in writing signed by the transferor or his duly authorised agent. The sale of a property of a value of more than Rs. 100/- has to be compulsorily registered, whereas, an actionable claim of any amount can be had only by execution of an instrument. Thus the sale of a property and sale of an actionable claim are two different things and one has no relation with the other. As the transfer of an actionable claim is not done by a registered deed, therefore, the notice under Section 131 of the Transfer of Property Act is necessary. In the instant case, the sale was of the entire property and not only the right of realisation of rent. It was by virtue of the sale-deed that the purchaser i.e., the plaintiff-respondent claimed rent from the defendant-appellants from a date subsequent to the date of the sale.