TP Act Immovable Property Attestation Notice

8/3/2019 TP Act Immovable Property Attestation Notice

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TRANSFER OF PROPERTY ACT,1882

Discuss the Scope and object of Transfer of Property Act 1882?

Define immovable property

Valid Attestation

Doctrine of Fixtures

When is a person said to have notice of a fact?

1. Discuss the Scope and object of Transfer of Property Act 1882?

Transfer of property Act 1882 is an Act which deals with transfer of property between livingpersons.

The Act deals with transfer of property by act of parties only. The Act does not deal with transfer

by operation of law such as sale on execution of a decree, transfer of property by means of will

or succession.

The Act contains general principles of transfer of movable and immovable property and specific

provisions applicable to different types of transfers as below.

General principles of Transfer of property( sections 1-53A)

General principles of Transfer of property applicable to both movable and immovable

property(Sections 5-37)

General principles of Transfer of property applicable ONLY to immovable property(Sections 38-

53A)

Sale of immovable property(Section 54-57)

Mortgage of immovable property(Sections 58-104)

Lease of immovable property(Sections 105-117)

Exchange of movable and immovable property(Sections 118-121)

Gift of movable and immovable property(Sections 122-129)

Transfer of actionable claims(Sections 130-137)


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When there is no specific provision covering a situation, English law can be applied on the

ground of Justice equity and good conscience.

The Act was amended in 1929 by Transfer of Property(Amendment) Act, 1929.

By provision in section 2(d) of the Act, where there is a rule of Muslim Law which isinconsistent with this Act, Muslim law will prevail over the principles contained in the Act.]

2. Repeal of Acts-Saving of certain enactments, incidents, rights, liabilities, etc.In the territories to which this Act extends for the time being the enactments specified in the

Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein

contained shall be deemed to affect-

(a) the provisions of any enactment not hereby expressly repealed;

(b) any terms or incidents of any contract or constitution of property which are consistent with

the provisions of this Act, and are allowed by the law for the time being in force;

(c) any right or liability arising out of a legal relation constituted before this Act comes into

force, or any relief in respect of any such right or liability; or

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or

by, or in execution of, a decree or order of a court of competent jurisdiction, and nothing in thesecond Chapter of this Act shall be deemed to affect any rule of Mohammedan law.

3. Interpretation clause

In this Act, unless there is something repugnant(against) in the subject or context,-

" immovable property" does not include standing timber, growing crops or grass;

Define immovable property

The transfer of property Act does not contain a comprehensive definition of immovable property,

it defines the expression attached to the earth By considering the definition of immovable

property in the Generals clauses Act of 1897 also, the immovable property can be as follows.

1. Land

2. Benefits arising out of land.

3. Trees and shrubs which are rooted in the earth.

4. Buildings or walls which are embedded in the earth.


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5. Things or chattels which are attached to the building or walls for beneficial enjoyment of

building.(Examples are Doors, windows, Fans etc.)

6. Standing timbers, growing crops, or grass are not immovable property. It does not require

further nutriment from the soil. Growing trees are immovable property as they require

further nutriment from the soil.

In Joseph v. Joseph Annamma AIR 1979 KA,it was held that rubber trees will not fall

under the category of standing timber.

In Marshall v.Green, the trees rooted in the earth were to be cut immediately as per

contract. The court held that the sale was not one relating to immovable property.

The following are immovable property.

1.Right of ferry.

2.Equity of redemption.

3.Right to tap tree

4.fruit bearing tree.

5.Mortgage.

6.Right of way.

"instrument" means a non-testamentary instrument;

Valid AttestationAttestation is defined in sec.3 of Transfer of properties Act.

It means the act of witnessing the execution of a document and subscribing the names of the

witnesses in testimony of such act.

The object of attestation is to avoid fraud, misrepresentation or force in execution.

The attesting witness must be sui juris.

They need not be literate.

A party to the deed cannot be an attesting witness.

Essentials of Valid attestation are

1.Instrument Shall be attested by two or more witnesses each of whom has seen the executantsign or affix his mark to the instrument,

2. Instrument Shall be attested by two or more witnesses each of whom has seen some other

person sign the instrument in the presence and by the direction of the executant,


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3. Instrument Shall be attested by two or more witnesses each of whom has received from the

executant a personal acknowledgement of his signature or mark, or of the signature of such other

person,

4.Each of the witness shall sign the instrument in the presence of the executant;

5.It is not necessary that more than one of such witnesses shall be present at the same time,6. No particular form of attestation shall be necessary;

Doctrine of Fixtures

Any chattel which when affixed to the soil become part of the land. In England the general rule

is that whatever planted on soil belong to the soil. This is based on the maxim Quicquid

plantator solo solo cedit. This maxim has no application in India.

Any chattel becomes a fixture or an immovable property by its annexation to the land. Whether achattel becomes a fixture can be determined by applying the following tests.

1. Mode of annexation: if the chattel rests on the soil by its own weight and not affixed to the

land, it is a movable property. But if the chattel is affixed to the land by means of nails or so it is

presumed as immovable property.2. purpose of annexation :If the purpose of annexation is the permanent beneficial enjoyment ofland, the it is presumed that it is a fixture and hence immovable property.

"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, 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;

"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.

Notice


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When is a person said to have notice of a fact?

"a person is said to have notice" of a fact by

1. Actual Notice: when he actually knows that fact.-Example-A executed a sale deed in favour of B. Sale deed was prepared by C. Then C has

actual notice of the sale deed.

2. Constructive notice: or Rule in Tilak Dharilal v. khedanlal.

a. willful absence- He would have known it, if he had not willfully absented from making an

enquiry,

which he ought to have made,

b. gross negligence :He would have known it, if he did not have gross negligence in making any

enquiry.

c. Registration -If a document is registered, it is presumed that he has notice.

d. Actual possession.- If he is in actual possession of a property, it is presumed that he has

notice.

e. Notice to agent- If his agent has notice, , it is presumed that he has notice, PROVIDED that,

the agent has not fraudulently concealed the fact.

A person shall be deemed to have notice of any fact if his agent acquires the notice. This

general

rule has certain limitations.

1.The notice should be received by the agent an an agent.

2.The notice should be received by the agent during agency

3.The notice Should be received by the agent in the course of the agency business.

4.The notice should be on a matter material to the agency business.

The knowledge of an agent will not be assigned to the principal if the agent has fraudulently

concealed the fact and the party charging the principal was a party to the fraud.

Documents

TP Act Immovable Property Attestation Notice