Introduction The term ‘Property’ is derived from the | which means ‘a thing owned’, accorded different meanings dep: in which it is used. For inst is a property, any object as property. Additionally, of a person but not a p classified as: atin term ‘propertia’ The term ‘Property’ has been ending upon different contexts ‘ance, any physical object or thing which is owned is also referred to Property denotes a Proprietary right ersonal right. Property can also be (i) Movable property, and (i) Immovable property. Guru Datta Sharma v. State of Bibar [AIR 1961 SC 1684] Facts of the case: In this case it was held, that, property as a legal concept is the sum total of a bundle of rights, and in case of a tangible property, it includes the right to possess, right to enjoy, right to destroy, right to retain, right to alienate and so on. Thus, a question arises whether the bundle of rights can be transferred to another or not and if they can be transferred, what is meant by ‘transfer by legal means’ and what are the principles of law relating to such transfers? In India, prior to 1882, there was no law relating to property. The matters relating to the transfer of property were Tap EYRE bE applying English Law and Equity Principles. Thus, prior «0 1882, great confusion was created since there ia rg Ms ae law. The Law Commission prepared a draft on law relating 3= to Transfer of Property in 1870 and ultimately the Transfe, of Property Act was enacted and passed which finally came into force in 1882. However, from time to time based on Necessie, felt for bringing in change in law, certain amendments to the Act were incorporated. The object of the Transfer of Property Act, 1882 is ty provide'a uniform law regulating transactions resulting in transfer of property intervivos i.e. between living persons, to restrain or invalidate certain transfers, to promote the ends of justice and also to provide a uniform law respecting specific transfers relating to immovable property i.e. through either Sale, Mortgage, Lease, Exchange and/or Gift. The Transfer of Property Act, 1882 is restricted to transaction relating to transfer of property by the act of the parties and excludes the transfers which take place by Operation of law eg. through inheritance, succession etc, Also the Act expressly lays down that it is applicable only to the transfers made intervivos (between two living persons). The Act also prohibits certain kind of transfers, though intervivos. Under the provisions of the Act of 1882, Sections 1 to 53-A provide the general principles relating to transfer of Property which are applicable both in the cases of transfer of movable as well ‘as immovable property, deal with transfer! of immovab| the concept of' Sale (Sections whereas other sections le property only. They deal with 54 to 57), Mortgage (Sections 58 to '104), Lease ( Sections:105. to 117), Exchange (Sections 118 to 121) and Gift (Sections 122 to 129). Extent: In the fitst instance, India except the territories which, immediately before the Ist November, 1956, ‘were comprised in ‘Part B States’ or in the States of Bombay, Punjab and Delhi: it extends to the whole ofThis Act or any part thereof, however, may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned, Further, any State Government may from time to time, by notification in the Official Gazette, exempt, cither retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely, Section 54,, paragraph 2 and Sections 3, 59, 107 and 123. Notwithstanding anything in the foregoing part of this section, Section 54, paragraphs 2 and 3, and Sections 59, 107 and 123 shall not extend or be extended to any district or area of country, for the time being excluded from the operation of the Indian Registration Act, 1908 (XVI of 1908), under the power conferred by the first section of that Act or otherwise. Section 3 of the Transfer of Property Act, 1882 is the interpretation clause and accordingly lays down the definition of following terms for the purposes of the Act. In this Act, unless there is something. repugnant in the subject or context, the terms: “Immovable Property” does not include standing timber, growing crops or grass; * “Instrument” means a non-testamentary instrument; “Attested”, in relation to-an instrument, means and shall be deemed always to have meant, attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal 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ye necessary that more than one of such TL cna have seen present at the same time, and. no particular form of ttestation shall be necessary; ea ‘Registered” means registered in any part of the territories to which this Act extends under the law for the time being’ in ‘orce, regulating the registration of the documents; ‘Attached to the Earth” means — () Rooted in the earth, as in the case of trees and shrubs; (i) Imbedded in the earth, as in ‘the case of walls or buildings; or (iii) Attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. “Actionable Claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable Property, or to any beneficial interest in movable Property not in the possession, “ither actual or constructive, of the claimant, which the civil Sourts recognise as affording grounds for relief, whether such ons nea interest be existent, accruing, conditional orTransfer of Property Act Biz Attestation Question 1 Explain the meani xpla ning and essentials i of Attestation? i the legal effects of attestation. a oe OR Define the term ‘Attested? and attestation under Section 3 of ¢ 1882. Answer The term ‘Attested’ defined under Section 3 of the Transfer of Property Act, 1882 was inserted in the Act by the Transfer of Property (Amendment) Act 27 of 1926. According to it, attested, in relation to an instrument, means and shall be deemed always to have meant, attested by two or more witnesses each of whom ‘has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal 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 particular form of attestation shall be necessary. It is important to note that under the amendment the definition has been given a t. This is also evident from the language which says ‘and shall be deemed the conditions for a valid he Transfer Property Act, retrospective effec employed in the definition always to have meant’. / joni a ned the The word ‘attested’ signifies that, a person has sig) hat he was document by way of a testimony of the fact ¢available at the spot when it was erate It goes fot include hing more, and is therefore essential to be istinguishey ee : ions a document not only as from cases where a person signs acu a witness to the execution, but also in regard to giving consen, to the transaction. Any individual, who is a party to the dee, cannot be permitted to sign the instrument as an attesting witness under any circumstance. Essential Conditions: The following are the essential conditions to constitute a valid attestation: () There must be two attesting witnesses; (ii) Each must have seen the executant sign or affix his mark to the instrument; (iii) Each of the two ‘attesting witnesses must have signed the instrument in the presence of the executant. Ingredients of Attestation:: Essential ingredients of a valid attestation are: @ There must be two or more witnesses in all cases where a document is required by Act to be attested; (ii) Each witness. must — (@) See:what the executant signs or affixes his mark to, or (b) ‘See some’ other person sign the instrument in the presence and under the direction of the executant or © Receive from the! acknowledgment of his signature of such other (ii) Each witness must sign the of the executant. executant a personal signature or mark or the person, Instrument in the presence 2xecutant,in case the attesting witness/s are absent while the execution of the instrument takes place, i it becomes essential that each one of such witnesses receives from the executant, a personal acknowledgment of his Signature or mark, Attesting Witness; m_ a personal acknowledgment signature. If a person is si for some other purpose, for example, to certify that he is a scribe or an identifier or a registering officer, -he is not an attesting witness. There must be ‘animus attestand? for a valid attestation. The attesting party is to bear witness to the fact of ‘such attestation, Difference between: |English Law and Indian Law: Under the Transfer of Property Act, 1882 a two the English Law is made. U; witnesses should necessarily should actually ,see. the. exe place which are not. the re Property Act. -fold departure from nder the English. Law both the be present at the same time and cution of the instrument taking quirements under the Transfer of Shamu Patter. v. Abdul Kadir Ravuthan (1912) 14 BOMLR 1034] Facts of the case: The main question raised in this case was whether, the provisions of Section 59 of the Transfer of Property Act, 1882, which require a mortgage to be effected through a registered instrument and to be signed by the mortgagor and attested by at least two witnesses, werea. sufficiently complied with; since, in this case, the Witnesg were not present in person. at the a ie Hs u ie of the instrument by the mortgagor, however, i "they: su sequently attest it on the acknowledgment of such signature, The Privy Council held that an attesting witness must haye seen the executant sign the instrument. Burden: The burden is on the propounder to Prove the due and valid execution of the Will. The propounder is requited to show by satisfactory evidence that the Will Was signed by the attestator and that at the relevant point of time the attestator was in a sound and disposing state of mind, that he understood the nature and the fact of dispossesg when he put his signature to the document out of his free will. Who May Attest: The main object of attestation is to Provide Protection against fraud a ind undue influence. A Party toa deed cannot be an attesting witness. The section requires’ that the attesting witness shoul id have signed in the Presence of the executant; otherwise, the deed is said to be not validly attested did actually witness the execution, be attesting witnesses, though they may be interestéd in the transaction: @ Person interested in the tr; and ing, own ansaction, such as, a person Y advanced under a mortgage, may be an attesting witness, if he is not a party to the deed; and (i) The person who advanced the money may attest 4 mortgage in favour of his benamidar, Form of Attestation: Attestation need no form, a mere signature ig sufficient; any particular place in the dee che execution of the deed, t be in any particular it need not be made at d, but cannot take place beforeM. L. Abdul Jabbar Sahib v. H. V. Venkata Sastri [AIR 1969 SC 1147] ° In this case, the Supreme Court held that such signatures can only amount to a valid attestation if the attesting witnesses had put their signatures with such animus; the court further held that, ordinarily the registering officer puts his signature in the due course of the performance of his statutory duty and not with an intention to attest. If execution is specifically denied, and if there be only one witness alive who is subject to the process of the court, in that case such attesting witness must be called to prove the deed. If all the attesting witnesses are dead, their signatures can be proved by through a handwriting expert. JefeBE ick Reference Guide: QCA Serves General Principles of Transfer of Property Question 2 What is the meaning of immovable property? Give some examples as to what are immovable and movable properties. OR Define the term ‘immovable property’ and discuss it in relation to how it is defined under Section 3 of the Transfer of Property Act, 1882. Answer The provisions of the Transfer of Property Act deal mostly with transfers relating to immovable property. Hence, it is necessary to understand the meaning of immovable property, in order to apply the various provisions of the Act. Section 3, paragraph 2 of the Transfer of Property Act, 1882 defines the term ‘immovable property’ as follows: “Immovable property does not include standing timber, growing crops or grass.” The expression in the definition is a negative one. In fact it does not define the term, rather it lays down as to what is not included in the term. The definition of the term ‘Immovable property” under the Act is not a comprehensive one, rather, it merely lays dows that the term excludes three kinds of properties from the purview of immovable property, viz., standing timber, growing crops and grass. Thus, it is not a scientific or comprehensive definition of the term.Transfer of Property ct As the above definition is not a comprehensive and a self- sufficient definition, as such, the meaning of the term is to be understood by reading the definitions given in other legislations as well i.¢. those given under the General Clauses Act, 1897 as also The Indian Registration Act, 1908. Alisaheb v. Mohidin Srnmonebde [911) 13 Bom LR 874] It was held that a fruit bearing tree would not be standing timber, and would be classified as immovable property. As the intention of the owner of the garden of fruit bearing trees is to reap the fruit but not to cut the trees. Under Section 3(26), The General Clauses Act, 1897, the term “immovable property” has been defined as follows: Immovable property’ shall include “Land benefits arising out of land. and things attached to the earth or permanently fastened 10 anything attached to the earth.” ‘A combined reading of both the provisions defining the term ‘immovable property’ gives a better and a comprehensive understanding of the term immovable property’. Thus, we can understand the expression, Smmovable property’ as including, land benefits arising out of the land, and things attached to the earth or permanently fastened to anything attached to the earth and excluding, standing timber, growing crops and grass. Meaning of land: The term “Land” is to be understood as. implying a definite portion of earth and also includes ponds, rivers, etc. Benefits arising out of land: The “benefits arising out of e also considered as immovable propertys being an land” ar , interest in land. A right to enter on land for the purpose 0! : ; : ‘ ne fit cutting and carrying away timber standing on It 1s 2 benefithat arises out of the land, Hence, right to collect TENE fro, the tenants, a right to way and other rights of CASCMENE 4 some of the examples of benefits arising out of land, Things attached to carth: According, to Section 3 of the Act, things attached to the earth includes things rooted jy the earth eg trees and shrubs; things imbedded in the earth ag walls or buildings and things attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. Ie means that a tree which is agreed to be cut and taken away, immediately, is a standing timber only and cannot be treated as immovable property. The above rule in Green », Green, [90 U.S. 486 (1874)] has been applied in St. Shanta Bai v. State of Bombay, [AIR 1958 SC 532]. Thereafter, the Shanta Bai’s Case has been followed in many subsequent cases. Smt. Shanta Bai v. State of Bombay [AIR 1958 SC 532] Facts of the case: By an unregistered document, the husband of the petitioner granted her the right to take and appropriate all kinds of wood from certain forests in his zamindari. Afterwards, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into operation and made all Proprietary rights in land, vested in the State under Section 3 of that Act. Consequently, the petitioner could no longer cut any wood. She applied to the Deputy Commissioner and obtained from him an order “under Section 6(2) of the Act permitting her to work in the forest and she started cutting the trees. ‘The Divisional Forest Officer took action against her and passed an order directing that her name might be cancelled and the wood already cut from the forest as forfeited, She moved the State Governmentagainst this order but to no effect, Thereafter, she applied to the Supreme Court under Article 32 of the Constitution of India and contended that the order of the D.EO. infringed her fundamental rights under Articles 19(1)(F) (now omitted) and 19(1)(g). The Court held that, the order in question did not infringe the fundamental rights of the petitioner under Articles 19(1) (f) and 19(1)(g) and the petition must be dismissed. Things imbedded in earth: The phrase ‘thing imbedded in earth’ is similar to the expression ‘Fixtures’ under the English Law. English Law: Under English Law, the general rule “quicquid plantatur solo, solo cedit” is applicable. It means, what is attached to or erected on the land, becomes part of the land. If a tenant constructs something on the land, the ownership of the chattel passes onto the owner of the land. This is because, under the English Law, once a construction is made by the tenant it becomes part of the land and is to be treated as immovable property. This, however, is subjected to two exceptions, i.e, Trade fixtures and Agreement to remove chattel. Trade fixtures: Things fixed to a land or building for the trading activities can be removed after the expiry of tenancy. Example—Balance and scales. Things rooted in earth: Things rooted in earth include trees and shrubs. However, all things rooted in the, earth are not included in the definition of immovable property. It means thar, if the trees or shrubs are intended to constitute standing timber, growing crops or grass then, they do not become immovable property. What is “standing timber’ is not defined in the Act. The expression, “standing timber” has a limited meaning. Timber means “wood suitable for building houses,b Reference Guide QOA Series oe whether on the tree of cut and seasoned”, bridges, ships, efe.. f cu ; Las standing, timber it is not immovable Thus, ifa tree is treatec property. Example—Babul Tree. / ; It is common knowledge that Deodar, Kail and Rai trees are used for building purposes. ‘The intention of the parties (growers) was to cut the trees immediately after it reached the intended size. It was held, that, the agreement related to standing timber and required no registration. The term includes creepers like Pan Angoor creepers, the various vegetables like Louki, Kaddoo, etc. and the Sugar Cane, Wheat, Barley, etc. They do not have an independent existence beyond their produce. The question, whether a tree is an immovable property or not, was discussed in the following leading case: Green v. Green [90 U.S. (23 Wall.) 486] In this case, the question, whether, the sale of trees constitutes a transaction relating to transfer of an ‘immovable property’ or not was decided. It was held that, growing trees are immovable property however ‘standing timber’ is not an immovable property. This is because, in the case of growing trees they require further nourishment from the soil but in the case of standing timber such wood can be cut at once for the use in house-building or other such purposes. Agreement to remove chattel: This is another exception under the English Law, provided it is in terms of the lease. eee Oe Indian Law: The maxim “Quicgui i Law: The m quid plantatu dit (or) Quicquid inaedificatur solo, solo ae reas hs eh in India, Under the Indian law, the things attach a hat is so imbedded in the earth fo: Pe pci t the permanent beneficiali ached, are also regarded njoyment of that to which they are attached, are also reg al si able property, as immovable pre has i i ether a chattel has Under the Indian Law, to decide whether a ane ests ¢ observed: become a fixture or not, there are two tests to be observe (@) The Mode of annexation, and (ii) The Purpose of annexation The above two tests arc equally important to decide whether a chattel fixed to the earth or building can be regarded as a part of the land i, immovable property or not. When a chattel or a thing merely stands on the earth, on its own weight, it is presumed not to be a fixture until it is shown that the intention was to make it part of the land i¢, immovable property. It means, mere annexation of a chattel is not only important, the intention of the parties to fixed it for permanent beneficial enjoyment is also a necessary element, and only then is it presumed to be an immovable Property. Thus, doors and windows fixed to the wall, chairs fix in the cinema hall by nails and fans or fixtures are all considered as immovable Properties. Here, these things are treated as immovable Property because the mode of fixation is permanent in nature and the purpose of so fixing is also for permanent beneficial enjoyment, The purpose of annexation has to be inferred ftom the circumstances of each particular case, In Holland v, Hogdson, (L. R, 7 C. P. 328], it was held that, the looms fixed to the floor of a mill by nails were treated as immovable Property, In Leigh v, Taylor, (1902 AC 157], it was held that, certain filtable Capacities affixed by a tenant to the walls of a house ‘or i 2 ae Purposes and for the better enjoyment of them ja an ttels, had not become Part of the house, but formed part © personal estate of the tenant for life,Quick Reference Guide: QOA Series In SP.KN, Subramanian Firm v. M. Chidambaram, [AIR 1940 Mad 527] the machinery installed by a tenant for running a cinema in the premises taken up by him on lease for his own profit, was held to be movable property, within the meaning of Section 3 of the Indian Transfer of Property Act, as it was not permanent improvement to the premises. In Mohammed Ibrahim v. Northern Circars Fibre Trading Co. Coconada, [AIR 1944 Mad 492] the point for decision was whether the machinery continued to be movable property or had become a fixture. The machinery was installed on a cement platform and was held in position by being attached to iron pillars which were fixed in the ground to a depth of six feet. It was held, that, since the owner of the mill installed that machinery, the purpose could only be the permanent beneficial enjoyment of the mill. Hence, both with regard to the mode of annexation and the purpose of annexation, it was held to be immovable property. Examples of immovable property: Rent, Right to way, Right to ferry, Right to fishery, Right to receive future rent, Factory hereditary offices, Equity of redemption, Interest of mortgage, Right to collect dues from a fair or a piece of land. The following are not immovable Property: Royalty, Decree for sale of mortgaged property, Government promissory note, Copyright, Right to worship, : i Right to recover maintenance, allowances, Growing timber, Grass. Growing cro he ; oe ps, tl machinery which is not Permanently attached to the earth. Sep Rp ok