TPA NOTES

History of Tpa

Ans. Historical Background :- Before passing of Transfer of Property Act 1882, there
was no specific codified law relating immoveable properties. There was state of
uncertainty in Courts in Presidency towns, as far as administration of justice on the
subject. Similar was the situation in other parts of India. Courts, were deciding the
matters primarily on principles of "Equity justice and good Conscience". In the absence
of any legislative enactments a confusion started arising because of conflicting decisions
of court on any point. Because of such Caotic situation, strong necessity of codified law
on the subject was felt.
In order to remove such confusion, a Law Commission was appointed in England to
prepare a substantive Law of Transfer of properties in India. The draft bill as prepared by
Law Commission was widely criticized because of many diversities and anomalies. Bill
was revised and re-published but again received criticism and it was pointed that Bill
should be confined to its application on transfer of properties by act of parties and should
not contain unnecessary matters and ultimately draft Bill was again given back to third
Law Commission, consisting of Sir Charles Turner and other eminent jurists. Finally the
Bill was passed on 17th February, 1882.
After passing of Transfer of Property Act 1882 situation had improved little because of
conflicting opinion of different High Courts on many provisions of Act. Act was required
to be amended to remove state of confusion on the subject. Since the passing of
Transfer of Property Act 1882 it was amended on twelve occasions. Provisions of Act
were primarily based on decisions of Chancery Courts and Courts of Common Law in
England. So in order to remove draw-baks, Act was thoroughly revised and a Bill was
drafted by Legislative Department of India in 1926 and in 1927 a special Committee was
appointed to examine the provisions of Act for its amendment. Committee suggested
various important changes in Act and ultimately Transfer of Property (Amendment) Act
XX of 1929 was passed which brought following important changes -
(1) Doctrine of Part performance was given statutory recognition and embodied in
Section 53-A.
(2) Legal proposition of `Lis-pendens' was clarified even more.
(3) Section 63-A recognized the right of mortgagee to compensation for the money spent
by him by bringing improvement in Hypotheca.
(4) The law of merger in relation to mortgages has been simplified.
(5) Registration of compulsorily registerable document operate as considerable notice.
(6) Mortgagee has to bring single suit inconsolidation of all mortgagees held by him in
respect of which mortgage money has become due and in respect of which he has right
to obtain same kind of decree.
(7) Section 65-A has defined the mortgagor's right to lease the for operty and has
provided statutory criteria for judging the validity of such leases.
Objects -- The following have been the objects of the Transfer of Property Act --
(1) One of the object of the Act was to render the system of transfer of immovable
property a system of public transfer. Registration is therefore generally insisted upon for
completing a transfer except in cases of transactions of small value.
(2) Another object of the Act was to render more simple and efficient the law relating to
mortgages; section 60 of the Act recognises the mortgagers right to redeem and his right
has not been made subject to a contract to the contrary; full effect being thus given to
the equitable maxim "once a mortgage always a mortgage."
(3) Another and even more important object of act was to bring the rules which regulate
the transmission of property between living persons into harmony with the rules affecting
its disposition by testaments and thus to provide the necessary complement to the
Indian Succession Act. With this view the rules of the Succession Act as to contingent
and conditional bequest, have been applied mutatis mutandis to transfers inter-vivos.
Most of the provisions of the Act were based on the decisions of the courts of Equity in
England before 1881 which had largely been followed by the Indian Courts.
Scope of the Act : The scope of the Act is limited to transfer of property between
parties inter vivos i.e. living persons by their own acts as distinguished from a transfer by
operation of law as in case of insolvency or perfection of sale in execution of a decree.
The Act has no application to disposal of property by will. It also does not deal with the
case of succession. The scope and main objects of the Act shall be clear from the
following words :--
"First, to bring the rules which regulate the transmission of property between living
persons into harmony with the rules affecting its devolution upon death and thus to
furnish the complement of the work commenced in framing the law of intestate and
testamentary succession, and secondly, to complete the code of law of contract, so far
as relates to immovable property. In aiming at these objects, the legislature has striven
to avoid technicalities and refinements, to discard all rules whereby the parties to a
transaction were made liable to unexpected consequences, and provisions indeed which
were found in practice to lead to embarrassment and litigation. Like the Contract Act it is
not and does not purport to be, an exhaustive measure."
Thus Act covers transfer by act of parties inter vivos. The preamble of the Act lays down
that "whereas it is expedient to define and amend certain parts of the law relating to the
transfer of property by act of parties, it is hereby enacted as follows."

Q. 2 Define and explain following :-

(A) Immoveable property (B) Actionable claim.

Ans. (A) Immovable Property. - Section 3 of Transfer of Property Act defines

"Immoveable Property" as-
"Immoveable property does not include standing timber, growing crops or grass."
So defination of `Immoveable property' u/s 3 of the Act does not clearly and positively
indicate the real nature of the term. According to Section 3(26) of General Clause Act
"Immoveable property shall include land benefits to arise out of land and things attached
to earth or permanently fastened to anything attached to the earth."
So definition of the term `Immoveable property' as given in General clause Act 1897 is
also not comprehensive, However after having read the definitions of the term as given
in both the above said Acts, term may be said to include the following :-
(a) Land
(b) Benefits to arise out of land
(c) Things attached to the earth, except standing timber growing crops and grass.
Land - Land means determinate portion of earth's surface (e.g. - lake, mountains etc.)
and objects beneath the surface like Mines etc. or all other objects placed by human
agency on or under the surface with intention of permanent annexation, so as to become
part of the land.
Benefits To Arise Out of Land :- Apart from the property being immoveable from the
physical point of view very benefit arising out of it and every interest in such property is
also regarded as immoveable property. (Adebt secured by a Mortgage of immoveable
property is an interest arising out of land and is thus regarded as "Immoveable
property"). Similarly Right to receive future rent, Right to take minerals, Right collect lac
from Jungle, fish from pond are examples of benefits arising out of land.
Things Attached To Earth : Things attached to earth includes
1. Thing rooted in the earth
2. Things embedded in the earth
3. Things attached to what is so embedded and
4. Chattels attaches to earth or Building.
Things rooted in the earth, includes - all the trees or shrubs. But except standing Timber,
Growing Crop or Gross, (standing Timber, Growing Crop or Gross these are movable
properties). Trees which bear fruits are not standing timber but are considered as
immoveable property.
There are however certain trees lime Mango gives Fruits as well as Timber whether they
are movable or immovable property depends upon circumstances of case. It also
depends upon intention to use them as Timber (moveable) or Fruits (Immovable). Where
the intention in to cut them for the purpose of utilising wood, they would be regarded as
movable property. Things embedded in the earth includes all the building and other
constructions.
Things embedded in earth includes all windows; doors in a house are attached to the
house for the permanent beneficial enjoyment, which includes, electric Ceiling fan.
Whether fan is Immovable property or not depends upon the intention of fixation. If it is
permanent beneficial enjoyment of property then it is immovable property. Chattels
attached or fixed to building are immovable property.
Following properties are judicially recognised as Immovable properties
1. Right to collect rent of Immovable property
2. Right to collect Ferry
3. A right of way, light, fishery.
4. Debt secured by Mortgage.
5. Hereditary offices of worship.
6. Equity on Redemption.
7. Right to collect lac from trees.
Following properties are not immovable properties :
1. Right of worship, a royalty (a payment made to the writer of a book by publisher).
2. A decree for arrears of rent.
3. Right to recover maintenance.
4. Machinery which is not permanently attached to the earth.
5. Government promissory notes.
6. Standing Timber, Growing Crop, Gross
(B) Actionable Claim. - Section 3 of T.P. Act defines actionable claim. Formerly, any
claim which could be recognized by the Courts affording grounds for relief was an
actionable claim. Now the term in restricted to claim to debts and to claims to any
beneficial interest in movable property not in possession either actual or constructive of
the claimant. A debt secured by a mortgage is excluded from the category of "actionable
claim".
Section 3 defines the term as follows :
"Actionable claim" means (1) a claim to any debt other than a debt secured by mortgage
of immovable property or by hypothecation or pledge of movable property; or (2) to any
beneficial interest in movable property not in the possession, either actual or
constructive, of the claimant which the civil courts recognise as affording grounds for
relief, whether such debt or beneficial interest be existent, accruing, conditional or
contingent."
Actionable claim therefore means (1) a claim to any debt (other than a mortgage debt)
and (2) a claim to any `beneficiary interest' in movable property.
(1) `A' owes Rs. 1000 to `B'. `B's claim is an actionable claim.
(2) A promise to deliver 100 bags of rice on a certain day. He fails to deliver on the day
promised. B has a right to sue for damages, but `B's claim for damages is not an
actionable claim.
(3) Claim for arrears of rent is actionable claim.
(4) A claim to rent to fall due in future is an actionable claim for it is an `accruing' debt
within the meaning of the definition.
(5) A share in partnership is an actionable claim.
The expression "beneficial interest in movable property" includes the right to claim the
benefit of a contract for the purchase of goods.

Q. 3 What is meant by `Attestation" ? What are the requisites of a

valid attestation ? Point out legal effect of attestation.

Ans. Attestation :- Attestation means witnessing of execution of deed such as Will,

Mortgage, Gift or sale etc. In Attestation it is necessary to prove that the executant of
deed signed it in presence of attesting witnesses and witnesses signed the deed in
presence of the executant.
In Kumar Harish Chandera Singh Deo v. Bansidhar Mohanty and Others, AIR 1965
SC 1738, it was observed that the object of the attestation is to protect the executant
from being required to execute a document by the other party there to by force, fraud or
undue influence.
Similarly was held in Dhiren Bailung v. Must. Bhutuki and others, AIR 1972 Gouhati
44 it was also observed that Attestation and execution are two different acts, one
following the other. The former is to ensure that executant was free agent and not under
pressure nor subject to fraud when executing the document.
In order to constitute valid attestation, the essential conditions are (i) there must be two
attesting witness (2) Each of them must have seen the executant sign or fix his mark to
the instrument and (3) Each of the two attesting witness must have signed the
instrument in the presence of the executant. In M.L. Abdul Jabbar Sahib v. H. Venkata
Sastri, 1969 SC 1147 it was observed by Supreme Court that `To attest is to hear
witness to a fact. For attestation it is essential that witness should have put his signature
"animo attestendi" that is for the purpose of attesting that he has seen the executant sign
or has received from him a personal acknowledgement of his signature. If a person puts
his signature on the document for some other purpose for example to clarify that he is a
scribe or identifier or a registering officer, he is not an attesting witness."
In section 3 of the T.P. Act "attested" in relation to an instrument, means and shall be
deemed always to have meant attested by two or more witnesses each of whom has
seen the executant sign or affix his mark to the instrument, or has seen some other
person sign the instrument in the presence and by the direction on the executant, or has
received from the executant a personal acknowledgement, of his signature or mark, or of
the signature of such other person and each of whom has signed the instrument in the
presence of the executant, but it shall not be necessary that more than one of such
witnesses shall have been present at the same time, and no form of attestation shall be
necessary.
Legal Effect of Attestation -- Legal effect of attestation is that the document which
requires attestation is valid only when it is properly attested and valid and proper
attestation is proved. However mere attestation of a document does not show that the
attestator had notice of its contents. Attestation estops the person putting his witness
from denying the execution. However there may be circumstances attending the
attestation, such as that the contents were read over to the attestator and in that case he
may be estopped from challenging the right of the transferee of denying the authority of
the executant to execute the document. It becomes binding on him also.

Q. 4 Define and explain the term "Notice".

Ans. Section 3 of Transfer of Property Act defines the term "Notice" as-
"a person is said to have notice" of a fact when he actually knows that fact, or when, but
for wilful abstention from an enquiry or search which he ought to have made, or gross
negligence, he would have known it.
Explanation I. - Where any transaction relating to immoveable property is required by
law to be and has been effected by a registered instrument, any person acquiring such
property or any part of, or share or interest in, such property shall be deemed to have
notice of such instrument as from the date of registration or, where the property is not all
situated in one sub-district, or where the registered instrument has been registered
under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908),
from the earliest date on which any memorandum of such registered instrument has
been filed by any Sub-Registrar within whose sub-district any part of the property which
is being acquired, or of the property wherein a share or interest is being acquired, is
situated :
Provided that -
(1) the instrument has been registered and its registration completed in the manner
prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made
thereunder,
(2) the instrument or memorandum has been duly entered or filed, as the case may be,
in books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been
correctly entered in the indexes kept under section 55 of that Act.
Explanation II. - Any person acquiring any immovable property or any share or interest
in any such property shall be deemed to have notice of the title, if any, of any person
who is for the time being in actual possession thereof.
Explanation III. - A person shall be deemed to have had notice of any fact if his agent
acquires notice thereof whilst acting on his behalf in the course of business to which that
fact is material :
Provided that if the agent fraudulently conceals the fact, the principal shall not be
charged with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud."
So from the definition it is clear, that `Notice' may be actual or construction, according to
circumstances. It was observed that `The definition in Section 3 includes both an actual
and constructive notice. Legal presumption of knowledge of Notice arises from (a) willful
abstention from enquiry or search (b) Gross negligence, (c) omission to search
registration in Register kept under Registration Act (d) Actual possession and (e) Notice
to agent (1998 All.L.J. 1288 (1295)
Actual and Express Notice. An Actual notice is one by which one gets direct and
express knowledge of a fact. Actual notice must be definite information given by a
person interested in thing in respect of which the notice is issued. Actual notice can not
be established by proof of casual conversation.
Constructive Notice. Construction notice of fact is one which a person is presumed, in
law to have received the knowledge of that fact. Constructive notice is knowledge which
the courts impute to a party upon a presumption so strong that it cannot be allowed to be
rebutted that the knowledge must have been communicated. The question of
constructive notice is question of fact which falls to be determined on evidence and
circumstances of each case. In Murlidhar Bhapuji Valve v. Yallapa.L. Chaugle, AIR
1994 Bom. 358 defendant failed to make necessary inquiry in respect of possession of
suit land by going to the site or from neighbouring land owners. It was held that
constructive notice of suit agreement shall have to be imputed to defendant in view of
actual possession of the suit land being with the plaintiffs.
Presumption as contemplated in constructive notice can be taken -
(1) In relation to a fact --
(i) When but for wilful abstention from an enquiry which a person ought to have made,
he would have known the fact; or
(ii) When but for gross negligence be would have known it,
(2) In relation to document compulsorily registerable.
(3) In relation to actual possession.
(4) In relation to a notice to an agent.

Q. 5 What do you mean by "Transfer of Property" ? State what

properties are capable of transfer and which can not be
transferred under Transfer of Property Act ?

Ans. Transfer of Property :- Section 5 of Transfer of Property Act lays down as :-

"......transfer of property" means an act by which a living person conveys property, in
present or in future, to one or more living persons or to himself or to himself and one or
more other living persons and "to transfer property" is to perform such act."
So "Transfer of Property" is a process whereby a "Property" is made over by one living
person or persons to other living person or persons and for that purpose to perform such
act. Section 5 makes it clear that Act deals with only "transfer inter vivos" i.e. transfer
between living persons.
In Kempraj v. Buston Son and Co., AIR 1970 SC 1872 Supreme Court observed that
essence of word "Transfer" is `to convey' and therefore a transfer of property would
include not only the five specific categories of transfer, dealt within the Act namely sale,
mortgage, lease, gift and exchange but any transaction which has the effect of
`conveying' any property or any interest therein from one living person to another.
In Sunil Siddharthbhai v. Commissioner of Income-tax, Ahmedabad, Gujarat, AIR
1986 SC 368 (372) it was observed by Supreme Court that it is not necessary that
transfer should be of entire bundle of rights from transferor to transferee. Transfer may
consist of one of the estate only out of all estates comprising the totality of rights of
owner into a joint or shared interest with other person. An exclusive interest is a larger
interest than share in property, to the extent exclusive interest is reduced there is
transfer.
The word `property' As used in Section 5 of Act may be used in the objective sense of a
concrete thing which is the subject of ownership or other rights or it may be used in the
sense of the rights and the interests of the owner or other person in the property. It is in
the latter sense that the term `property' is used in the Act.
A transfer of property may take place in present or in future that is to say the actual
conveyance of the property may take place in present or in future. But the property itself
must be in existence as the property of the transferor. On the other hand, a transfer of
property not in existence operates only as a contract to be performed in the future as
soon as the property comes into existence and such a contract can be specifically
enforced if the transferor fails to transfer the property to the transferee after the property
comes into existence. A transfer pre-supposes two distinct persons i.e. transferor and
the transferee and thus there can be transfer by one to himself but that is possible when
the person exercise dual personality e.g.; A as an individual and A as a partner in a firm
or a company when there is a contract between A and the firm or a company.
Section 6 of Transfer of Property Act provides as to which properties are capable of
transfer. Section 6 says :-
"Property of any bind may be transferred, except as otherwise provided by this Act or by
any other law for the time being in force-
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of kinsman or any other mere possibility of a like nature,
cannot be transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to
any one except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage.
(d) All interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him.
(dd) A right to future maintenance, in whatsoever manner arising, secured or
determined, cannot be transferred.
(e) A mere right to sue cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.
(g) Stipends allowed to military naval, air-force and civil pensioners of the Government
and political pensions cannot be transferred.
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the meaning of
section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally
disqualified to be transferee.
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable
right of occupancy, the farmer of an estate in respect of which default has been made in
paying revenue, or the lessee of an estate, under the management of a Court of Wards,
to assign his interest as such tenant, farmer or lessee.
So the rights and properties as described in clause (a) to (i) are exceptions to general
rule and cannot be transferred. Transferability of property is general rule its non-
tranferability, an exception and burden of proof that particular property is not transferable
lies on person alleging it.

Q. 6 What are the criteria to determine a family arrangement what

is the object of a family arrangement. Is it required to be
registered ? Discuss.
Ans. Family Arrangement In Kale v. Deputy Director of Consolidation, AIR 1976 SC
807 Supreme Court while explaining about "Family arrangement" has observed that
".......term family has to be understood in a wider sense so as to include within its fold
not only close relations or legal heirs but even those persons who may have some sort
of antecedent title, a semblance of a claim or even if they have a spes succession is so
that future disputes are sealed forever and family instead of fighting claims inter-se and
wasting time, money and energy on such fruitless and futile litigations is able to devote
its attention to more constructive work..." Supreme Court further observed - "Even if one
of the parties to settlement has no title under the arrangement the other party
relinquishes all its claim or titles in favour of such person and acknowledges him to be
the sole owner, then the antecedent title must be assumed and family arrangement will
be upheld."
In Ram Charan Das v. Girja Nandini Devi, AIR 1966 SC 323 Supreme Court observed
that "To effect family arrangement, all that is necessary is that the parties must be
related to one another in some way and have a possible claim to property or a claim or
even a semblance of a claim on some ground as say "affection".
Registration and Family Arrangement
In A.C. Lakshmipathy and others v. A.M. Chakarapani Reddiar, AIR 2001 Mad. 135,
it was observed by Madras High Court that :
"A family arrangement can be made orally. If made orally, there being no document, no
question of registration arises. If the family arrangement is reduced to writing and it
purports to create, declare, assign, limit or extinguish any right, title or interest of any
immoveable property, it must be properly stamped and duly registered as per the Stamp
Act and Registration Act. Whether the terms have been reduced to the form of a
document is a question of fact in each case to be determined upon a consideration of
the nature of phraseology of the writing and the circumstances in which and the purpose
with which it was written. However, a document in the nature of a Memorandum,
evidencing a family arrangement already entered into and has been prepared as a
record of what had been agreed upon, in order that there are no hazy notions in future, it
need not be stamped or registered. Only when the parties reduce the family
arrangement in writing with the purpose of using that writing as proof of what they had
arranged and, where the arrangement is brought about by the document as such, that
the document would require registration as it is when that it would be a document of title
declaring for future what rights in what properties the parties possess. If the family
arrangement is stamped but not registered, it can be looked into for collateral purposes.
Whether the purpose is a collateral purpose, is a question of fact depends upon acts and
circumstances of each case. A person cannot claim a right or title to a property under the
said document, which is being looked into only for collateral purposes. A family
arrangement which is not stamped and not registered cannot be looked into for any
purpose in view of the specific bar in Section 35 of the Stamp Act."
Similarly in Kale v. Dy. Director of Consolidation (Supra) Supreme Court observed :-
"In Tek Bahadur Bhujil v. Debi Singh Bhyiyil, AIR 1966 SC 292 it was pointed out by
this court that a family arrangement could be arrived at even orally and registration
would be requiried only if it was reduced into writting.
It was also that a document which was no more than a memorandum of what had been
agreed to, did not require registration........So it is only when the parties reduce the family
arrangement in writing with the purpose of using that writing as proof of what they had
arranged and where arrangement is brought about by the document as such, that the
document would require registration as it is then that it would be a document of title
declaring for future what rights in what properties the parties possess."

Q. 7 Who are the persons competent to transfer ?

Ans. Section 7 of Transfer of Property Act says - "Every person competent to contract
and entitled to transferable property or authorised to dispose of transferable property not
his own, is competent to transfer such property either wholly or in part and either
absolutely or conditionally, in the circumstances, to the extent and in the manner,
allowed &prescribed by any laws for the time being in force.'
In Balai Chandra Mondal v. Indu Rekha Devi, AIR 1973 SC 782, it was observed that
A person's conduct in collecting rents and managing an estate of the landlord does not
empower him to transfer the land as the landlord's agent.
Section 7 of the Act however does not deal with the question as to who can be
transferee of property. Section 6(b) provides that no transfer can be made to a person
legally disqualified to be transferee. According to that provision a minor is not
disqualified to be transferee although a contract with a minor is void. As it was held in a
decision reported in AIR 1936 Pat. 153 that there is nothing in Section 7 to prevent a
person not competent to contract from being transferee of property. So this means if a
minor enter into contract through guardian or next friend he can be purchaser or
mortgagee, otherwise not.

Q. 8 "A Transfer of property passes to transferee all the interest

which the transferor is capable of passing." - Explain.

Ans. Section 8 of Transfer of property Act lays down the general rule of transfer of
property. Section 8 says about operation of transfer and lays down :
"Unless a different intention is expressed or necessarily implied, a transfer of property
passes forthwith to the transferee all the interest which the transferor is then capable of
passing in the property and in the legal incidents thereof.
Such incidents include, when the property is land, the easements annexed thereto, the
rents and profits thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the moveable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof
accruing after the transfer, and the locks, keys, bars, doors, windows, and all other
things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor
(except where they are also for other debts or claims not transferred to the transferee),
but not arrears of interest accrued before the transfer,
and, where the property is money or other property yielding income, the interest or
income thereof accruing after the transfer takes effect.
So as held in Vishwa Nath v. Ram Raj, AIR 1991 All. 193 that there may be
presumption that when land is transferred, all things attached to the earth such as tree
and shrubs, are also transferred along with the land in view of provisions of Section 8 r/w
Section 3 of T.P. Act, however there can be no presumption in case of vice versa.
So Court in certain cases construe the deed of transfer to determine the extent of
interest transferred thereby under such deed and in view of provisions of Section 8,
Court can, in the absence a clear and expressed intentions of parties to deed as to what
is and what is not transferred under a deed, hold that transferor intended to transfer, all
the incidents attached to the property to the transferee. The object of Section 8 is to
stabilize title and to remove from the region of pure speculation, what passed in the mind
of transferor of the transferee at the date of transfer. Similarly in--------------------------------,
AIR 1940 Pat. 516 it was observed that the object of Section is to clarify what are the
legal incidents of each particular class of property which passes along with the property
when it is transferred and not to lay down any rule as to what words are necessary to
effect a transfer of any particular kind of property.
As per Section 8 of the Act following are the necessary incidents attached to different
property and ordinarily passes from transferor to transferee in the absence of clear
intention of parties to the contrary.

Property Legal Incidents

1. Of Land. Easements, rents and profits and all things attached to the earth.
2. Of House : Easements, the rent accruing after the transfer, locks, keys bars,
doors and other things provided for permanent use.
3. Of machinery attached to the Movable parts of the machinery.
earth :
4. Of debt : Securities (right to resort to some property for the satisfaction of
the debt).
5. Of money or other property Interest or income accruing after the transfer takes effect.
yielding income :
As a matter of construction, the grant of land must be taken to be not only of the land but
also of every thing beneath or with the land. Prima- facie the owner of a surface of the
land is entitled ex-juse to everything beneath the land and in the absence of any
reservation, in the grant, the minerals necessarily pass with the rights to the surface.
The golden rule of construction is to ascertain the intention of the parties to the
instrument after considering all the words in their ordinary and natural sense.
To ascertain this intention the court has to consider --
(a) the relevant portion of the document as a whole, and
(b) the circumstances under which the particular words were used; and
(c) the status and the intention of the parties using the words
Where it is stated in the deed of settlement that the widow conveyed the property which
passed to her through a will executed by her husband and the will was invalid as
executed by a Hindu who had a son living at the time, it was held by the High Court of
Andhra Pradesh in the case of Kodun Venkata Subbaiah v. Abburi Rangaiah, AIR
1972 Andh. Pra. 246, that it cannot be argued that she conveyed also her interest in the
property as heir of the son. It is seen from the recitals that the intention was not to
transfer all the interest whatever she was capable of passing but only the interest which
she acquired under the will of her husband. Section 8 of the Transfer of Property Act
starts will the words "unless a different intention is expressed or necessarily implied" and
so the section does not apply so to operate as a transfer of all her interest (including the
rights acquired as the heir of the deceased son).

Q. 9 Describe the rule against inalienability.

Ans. Section 10 of Transfer of property Act lays down the rule that any transfer of
property, term of which absolutely restrain the transferee for further alienation of property
is void, this is also termed as "Rule against alienability". Section 10 says :-
"Where property is transferred subject to a condition of limitation absolutely restraining
the transferee or any person claiming under him from parting with or disposing of his
interest in the property, the condition or limitation is void, except in the case of a lease
where the condition is for the benefit of the lessor or those claiming under him, provided
that property may be transferred to or for the benefit of a woman (not bring a Hindu,
Mohammedan, or Buddhist), so that she shall not have power during her marriage to
transfer or charge the same or her beneficial interest therein."
According to section 10 of the Act it is permissible to make a transfer subject to
conditions but such conditions must not contravene the provisions of the Act and the
transfer takes effect as if no such condition had been attached to the transfer. On the
other hand there are certain conditions which if imposed, render the transfer itself void.
Section 10 is one of the group of sections which deals with void condition of the former
type.
This section lays down that where property is transferred subject to a condition
absolutely restraining the transferee from parting with his interest in the property the
condition is void. Suppose A transfers his property to B with a condition that B shall not
sell it. This condition is void and B takes the property absolutely and he may sell or not
as he pleases.
The principle underlying the Section 10 of the Act is that a right of transfer is incidental to
and inseparable from the beneficial ownership of property. The rule in the section that
condition of absolute restrain of alienation is void is founded on the principle of public
policy allowing free circulation and disposition of property.
In-----------------, AIR 1986 Ker. 56 it was observed that To improve a total restraint on
transfer of property or to impose rules which keep it out of circulation forever offends
public policy, irrespective of whether such conditions are imposed by deed of transfer, a
will or a simple contract.
An absolute restraint is one that takes away the power of alienation completely or
substantially e.g. a condition on the transferee that he shall not alienate property, except
for religious purposes. Partial restraint is one that imposes some restriction on the power
of alienation but the transferee is substantially free to alienate property in a wide variety
of ways e.g., a condition that transferee cannot transfer the property for any religious
purpose. Thus, if power of alienation is restricted to a particular person, only then it is
void as an absolute restraint. If the power of alienation is exercisable in favour of a class
of persons, it would be construed as a partial restraint.
In P.V.S. Vencatachellum v. P.V.S. Kabalumurthy Pillai, AIR 1955 Mad. 350 it was
held that Section 10 does not prohibit a partial restraint on the disposition of property but
renders an absolute restraints void--------In deciding the question whether the condition
or limitation restraining the disposition of property is absolute or partial the court has to
look at the substance and not so much to form of condition or limitation.
Exceptions to Section 10 Lease - When the condition is for the benefit of the lessor, it
will be valid. The lessor can always restrict his lessee's liberty of alienation. The logical
reason for this exception is that a landlord should be free to choose the person who shall
be in possession of his land. Thus, a condition in a lease, that the lessee shall not sublet
or assign (otherwise the lessor may re-enter) is valid.
Married woman - The second exception is for the benefit of a married woman (not being
a Hindu, Muslim or Buddhist), so that she shall have no power, during her marriage, to
transfer or charge the property. Thus a condition restraining alienation may be imposed
when the property is transferred to a married woman.