Interpretation of Statutes: Short Q and A: Part 5

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. This article is the collection of the short questions and answers on the interpretation of statutes.

 

Interpretation of Statutes: Short Q and A: Part 5

 

41) Can title control the express meaning of the enactment?

Ans. No, the title cannot control the express operative provision of the enactment.

42) On what basis can a true nature of an enactment be determined?

Ans. The true nature of any such enactment has always to be determined on the basis of its substance and its operative provisions.

43) What are the functions of the preamble of the Constitution of India?

Ans. The true functions of the Preamble are to expound the nature and extent and application of the powers actually confirmed by the Constitution and not substantially to create them.

44) Why marginal notes of the Constitution of India are referred to interpret the Articles?

Ans. In the case of the Indian Constitution, the marginal notes have been enacted by the Constituent Assembly and hence they may be referred to for interpreting the Articles of the Constitution.

45) What are the punctuations?

Ans. ‘Punctuation’ means to mark with points and to make points with usual stops. It is the art of dividing sentences by point or mark.

46) Why a proviso is added in an enactment?

Ans. A proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule.

47) What purposes are served by the proviso?

Ans. A proviso may serve four different purposes:

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an options addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.

48) What is a non-obstante clause?

Ans. A section sometimes begins with the phrase ‘notwithstanding anything contained etc.’ Such a clause is called a non obstante clause.

49) What is the purpose of the non-obstante clause?

Ans. General purpose of a non-obstante clause is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the section.

50) What are the external aids of construction and interpretation of statute?

Ans. The history of legislation, the enactments which are repealed, the parliamentary debates, dictionary commentaries etc. are the external aids to construction.

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Interpretation of Statutes: Short Q and A: Part 4

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. This article is the collection of the short questions and answers on the interpretation of statutes.

 

Interpretation of Statutes: Short Q and A: Part 4

 

31) Which section of the General Clauses Act, 1897 provides for the definition of ‘act’?

Ans. Section 3(2) of the General Clauses Act, 1897.

32) Which section of the General Clauses Act, 1897 provides for the definition of ‘affidavit’?

Ans. Section 3(3) of the General Clauses Act, 1897.

33) Is swearing allowed in affidavit?

Ans. No, affidavit is to be given instead of affidavit.

34) What is included in an affidavit?

Ans. An affidavit includes an affirmation and a declaration made by a person regarding his case.

35) Where is affidavit used?

Ans. An affidavit is used along with witness statements to prove the truthfulness of a certain statement in court.

36) What are considered as the internal aids for interpretation of statute?

Ans. The preamble, title, heading, marginal notes, punctuation, illustrations, definitions, proviso, explanation etc. are considered as internal aids for interpretation of statute.

37) Which thing is not a part of an enactment but it is written with the enactment?

Ans. Preamble is not a part of an enactment but it is part of an Act.

36) How preamble is recital to the intention of the legislature?

Ans. Preamble is a recital to the intent of the legislature as it enumerates the mischief to be remedied.

37) What are the main guidelines to interpret the Indian Constitutional provisions?

Ans.  In India, it is well settled in the field of constitutional law that the preamble to the Constitution of India and Directive Principles of State Policy are the guidelines for interpreting the constitutional provisions.

38) Which title provides for the object, scope or purpose of the enactment?

Ans. The long title is taken along with the preamble or even in its absence is a good guide regarding the object, scope or purpose of the Act.

39) Is short title useful in construction of statute?

Ans. No, the short title being only an abbreviation for purposes of reference is not a useful aid to construction.

40) Can title override the clear meaning of the enactment?

Ans. No, the title of the enactment cannot override the clear meaning of the enactment.

 

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Interpretation of Statutes: Short Q and A: Part 3

 Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. This article is the collection of the short questions and answers on the interpretation of statutes.

 

Interpretation of Statutes: Short Q and A: Part 3

 

21) What is a temporary statute?

Ans. A temporary statute is a statute that contains a clause limiting the duration of its validity and operation.

22) When a statute becomes temporary?

Ans. A statute is temporary when the legislature fixes the period during which it remains in operation and unless extended ceases to have the operation on the expiry of the period so fixed by the legislature.

23) Under which situations a statute is repealed impliedly?

Ans. A statute is presumed to have been repealed impliedly in the following cases:

I. If the provisions of the former enactment are clearly repugnant to those of the subsequent enactment.

II. If the application of the two statutes at the same time would wholly result in absurd consequences.

III. If the entire subject matter of the first enactment is taken away by the second enactment.

24) What is the purpose of the General Clauses Act, 1897?

Ans. The General Clauses Act is to consolidate General Clauses Act, 1868 and 1887.

25) Is General Clauses Act, 1897 colonial law? Who enacted this Act in India?

Ans. Yes, the General Clauses Act, 1897 is colonial law enacted in the territory of India under British Rule and is still enacted in India.

26) What is the extent of definitions given in the General Clauses Act, 1897?

Ans. Definitions given in the General Clauses Act, 1897 is having extent to all Central Acts and Regulations made after the enactment of this Act.

27) What is the meaning of ‘abet’ in the General Clauses Act, 1897?

Ans. In the purview of the General Clauses Act, 1897 the meaning of abet with all its all grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code, 1860.

28) What is the meaning of ‘abet’?

Ans. The term ‘abet’ is a verb having meaning ‘encourage or assist (someone) to do something wrong, in particular, to commit a crime and encourage or assist someone to commit (a crime)’.

29) What do you mean by an ‘act’ in law?

Ans. As per the General Clauses Act, 1897 the meaning of the act is used with to an offence or a civil wrong.

30) What is included in ‘act’ when it is used in law?

Ans. An ‘act’ includes an offence or a civil wrong. There may be a series of offences or civil wrongs included in the term ‘act’. Also illegal omissions are included in the term ‘act’.

 

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Interpretation of Statutes: Short Q and A: Part 2

Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. This article is the collection of the short questions and answers on the interpretation of statutes.

 

Interpretation of Statutes: Short Q and A: Part 2

 

11) What is the main objective of interpretation of statute?

Ans. The main objective of interpretation is to determine the intention of the legislature which is expressed impliedly or expressly.

12)  What are the basic or fundamental principles of interpretation of statutes?

Ans. Following are the basic or fundamental principles or rules of interpretation of statutes

a) Statute must be read in entire context,

b) Heydon’s Rule or Mischief Rule,

c) Statute should be constructed to make it effective and workable,

d) Rule of Harmonious Construction,

e) Golden rule of interpretation.

13) What is statutory construction or construction of statute?

Ans. Rules of construction or statutory construction is the process of determining how the provisions of the general law relate to a specific legal case, and distinguishes the rules of statutory interpretation from other rules or aids for the interpretation of law in common law jurisdictions.

14) When a judge usually makes a construction?

Ans. A judge usually makes a construction of an unclear term in a document at issue in a case that involves a dispute as to its legal significance.

15) What is repeal of enactment?

Ans. Repeal is the abrogation or destruction of law by legislative enactment. Substitution of one legal provision by another is in fact repeal.

16) Which Section of the General Clauses Act is applicable to repeal or amendment of an enactment?

Ans. Section 6 of the General Clauses Act is applicable to repeal or amendment of an enactment.

17) What are the types of repeal?

Ans. The repeal of an enactment may be partial or total. It is total repeal when a statute is abrogated in its entirety and partial when there is abrogation or modification of a provision of a statute only.

18) When repeal is express?

Ans. Repeal is express when declared in direct terms.

19) When repeal is implied?

Ans. Repeal is implied when the intention to repeal is inferred from subsequent contradictory or inconsistent legislation.

20) What is perpetual statute?

Ans. A statute providing no fixed time for its duration is a perpetual statute. A perpetual statute is not perpetual in the sense that it cannot be repealed or amended by the legislature; it is perpetual in the sense that it is not decimated or abrogated by the expiry of time.

 

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Interpretation of Statutes: Short Q and A: Part 1

 Vande Matram! Interpretation of Statute is very important skill which every law professional must possess. Hence it is incorporated in the degree course of law. This article is the collection of the short questions and answers on the interpretation of statutes.

 

Interpretation of Statutes: Short Q and A: Part 1

 

1) What is meaning of interpretation of statutes?

Ans. Interpretation of statutes means process of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.

2) What is the object of interpretation of statutes?

Ans. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.

3) What are the types of aids of interpretation of statutes?

Ans. There are two types of aids of interpretation of statutes: a) Statutory Aids and b) Non-statutory aids.

4) How are the statutory aids illustrated?

Ans. The statutory aids are illustrated in the General Clause Act, 1897 and by specific definitions in the various Acts enacted.

5) How are the non-statutory aids illustrated?

Ans. Non-statutory aids are illustrated by common law rules of interpretation and also by case laws relating to the interpretation.

6) What is Statute?

Ans. A statute is a formal written enactment of Legislative authority that governs a state, city, or country. The statute is a decree of the legislature that must be understood as it reflects the intention of a legislature.

7) When would need for interpretation of statutes arise?

Ans. Necessity of interpretation would arise only where

a) the language of a statutory provision is ambiguous, not clear or

b) where two views are possible or

c) where the provision gives a different meaning defeating the object of the statute.

8) When it is not necessary to interpret a statute?

Ans. If the language is clear and unambiguous, no need of interpretation would arise.

9) Why it is necessary to interpret the statute?

Ans. Legislative language may be complicated for a layman hence it is necessary to interpret the statute so that everyone can understand it. 

10) What are the aspects of the intention of legislature or Legislative intent?

Ans. The intention of legislature or Legislative intent assimilates two aspects, firstly, the concept of ‘meaning’, i.e., what the word means; and secondly, the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute.

 

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Discuss the essential components of the valid transfer of property.

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day.

In previous blog, we discussed about the mode and the test regarding transfer of property. Let’s discuss about the essential components of the valid transfer of property.

Discuss the essential components of the valid transfer of property.

The transfer of property Act, 1882 provides for the transfers, relating to immovable property and it also lays down the principles relating to the transfer of property regarding what constitutes a transfer and the conditions attached to it. It was observed by the Supreme Court that in general, the transfer of property means passing of entire bundle of rights i.e. ownership from the transferor to transferee or there may be the transfer of only some of the rights i.e. partial interest.

According to the Act, “transfer of property” is defined as an act in which a person conveys the property to one or more living persons or himself and one or more other persons. The transfer may be done in the present or for the future and the term “living person” includes companies, body corporate, an association of persons whether incorporated in India or not. The property transferred can be of any type either movable or immovable. The definition is provided in detail in Section 5 of the Act.

Essentials of a valid transfer of property:

To constitute a valid transfer it has to fulfill the following conditions:

1) Transfer must be between two living persons:

Both the transferor and transferee must be living at the date of transfer. The property has to be conveyed from one living person to another. If the new title or interest is not created in favor of the transferee then the property is not conveyed and is not regarded as a transfer of property.

In case of Harish Chandra v. Chandrashekhar, 1977, it was held by the court that a release deed is a conveyance and hence it is a transfer of property.

2) The property must be transferable:

Section 6 of the Transfer of the Property Act, 1882 provides for the exceptional types of property whose transfer is forbidden by the law. These properties include Spes succcessionis i.e. a chance of succession, Right to re-entry, Easement, Restricted interest, Maintenance, Mere right to sue, Public office, Pensions, etc.

In R. Rajegowda v. H. R. Shankar Gowda (2006), it was held that a person having life interest in property cannot bequeath it by executing a will.

In Sundariya Bai Chaudhary v. Union of India, 2008 the court held that the family pension of the deceased was not in the nature of an estate and it was not transferable so it could not be bequeathed by a will. The court observed that other benefits like provident fund, gratuity, and extra remunerations would be included in the category of an estate.

3) The transfer should not oppose to nature of interest:

There are certain things which are known as “res communes”, these things are in their natural form and they do not belong to anyone, like, air, water, sea, light, etc., it is not possible to hold and possess these things separately so if anyone tries to transfer such a thing it would be opposed to its nature.

4) The consideration or the object must be lawful:

To be a valid transfer the consideration and the object must be lawful. As per Section 23 of the Contract Act the consideration or the object is unlawful if It is forbidden by law

a) if it defeats the provisions of any law,

b) if the object or consideration of any agreement is made for fraudulent purposes.

c) If the agreement is made concerning harm to any person or his property.

d) If the agreement which has been entered into is immoral.

e) If the agreement is against public policy.

5) Persons competent to transfer:

Section 7 of the TP Act, provides that if the person is competent to contract then that person is competent to transfer the property either wholly or in part, and either absolutely or conditionally, in the manner which has been permitted by law. Such competency for transfer of property is provided in the Section 11 of the Contract Act.

In case of Mallikarjun v. Mareppa 2008, a person brought a property in the name of his minor son and later sold it again while the son was still a minor. Court’s permission under Section 8 of the Hindu Minority and Guardianship Act 1956 was necessary in this case but was not taken. The provision was mandatory so the sale was held to be void.

Sadiq Ali Khan v. Jaikishore 1928– In this case the Privy Council observed that a deed executed by a minor was null and void. Principle of estoppel cannot be applied to a minor. A minor is not competent to transfer but transfer made to a minor is valid and legal.

Amina Bibi v. Syed Yousuf, 1922- The Allahabad High Court held that a contract made by a lunatic is void under section 11 of the Indian Contract Act. The transfer of his own property by him is also void.

K. Kamama v. Appana- In this case it was held that under section 11 of Hindu Minority and Guardianship Act, a de facto guardian is merely a manager and cannot dispose of the property of a minor. Such sale would be invalid.

Chittu Singh v. Chatan Singh, 1923- It was held that a person who has no right at all to have possession has no right to make any valid transfer. The power of such person cannot exceed the power of the person who has appointed him.

6) The transfer must be made in the manner and the form required by the Act:

Section 9 of the Transfer of Property Act states that the transfer of property can be carried out without a written instrument where writing is not expressly necessary under the law. Sale deed, Mortgage, Transfer of actionable claim, Exchange, relinquishment, gift deed, etc. involving immovable property of valuation, not less than Rs. 100 must be registered.

Conclusion:

If above stated essential requirements are not fulfilled then the transfer will not be considered a valid one or it can be declared void.

Thanks for reading till the end. Note down all the important points for your preparation and Best of Luck for your exams! Please share this blog.

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List of references:

Essentials of a valid transfer – Transfer of Property Act, 1882

Essentials of a Valid Transfer Under Transfer of Property Act

What are the mode and the test regarding transfer of property?

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day. Let’s discuss the mode and the test regarding transfer of property.

In the previous blog, we discussed about the definition of transfer of property.

What are the mode and the test regarding transfer of property?

According to section 8 of the Transfer of Property Act 1882 (The Act), by transferring property, transferor transfers all rights in a property. There are various modes of transferring ownership of property: permanently by 1) relinquishment 2) sale 3) gift; and temporarily by way of 4) mortgage 5) lease and.

Sale:

Sale is mode of transfer of property permanently. Under Sec 54, the sale is a transfer of ownership by a deed (sale deed/transfer deed) for a price, paid or promised or part paid and part promised. The sale deed is compulsorily required to be stamped by paying stamp duty and registered before a Sub-Registrar and is for consideration.

When the value of such tangible immovable property is not more than a hundred rupees transfer may be done either by a registered instrument or by delivery of property. On the other hand when the value of such immovable property is more than a hundred rupees then transfer has to be made only by a registered instrument.

Lease:

Lease is mode of transfer of property temporarily. Sec 105 of the Act defines lease as a transfer of the right to enjoy a property, for a certain period, express or implied, in consideration of a price paid or promised, money or any other thing of value, to be rendered periodically or on such occasions.

Duration of a lease for which no period is specified in the contract is for agriculture & manufacturing purpose, is deemed to be a lease for the year to year which can be terminated by either of the parties on giving a six-month notice. For any other purpose, such period is month to month which can also be terminated by either of the parties on fifteen days notice. The contract of lease for a period of the year to year or exceeding one year is to be effected only by a registered instrument.

Main terms related to lease are as follows:

1) Lessor – Lessor means the transferor. (of right to enjoy property to lessee)

2) Lessee – Lessee means the tranferee.

3) Price – The price in case of lease, means the premium.

4) Rent – Rent in context of lease means money, share, service or any other thing to be so rendered.

Mortgage:

Mortgage is mode of transfer of property temporarily. Sec 58 of the Act defines Mortgage as the transfer of interest in the specific immovable property by way of a mortgage deed or deposition of title deeds for securing payment of a loan.

Except for the mortgage by deposit of title deeds, all other forms of mortgage must be made through a registered instrument if the sum assured is 100 or more. A simple mortgage is effected only by registered documents even if the sum is less than 100. When registration is necessary it must be in writing, attested by at least two competent persons, signed by mortgagor & registered according to provisions of Registration Act.

Main terms related to mortgage are as follows:

1) Mortgagor – Transferor is called mortgagor in this transaction.

2) Mortgagee – Transferee is called as Mortgagee.

3) Mortgage Money – Principal money & interest of which is payment is secured in such transaction.

4) Mortgage Deed – is the instrument by which transaction is effected.

Gift Deed:

Gift deed is mode of transfer of property permanently. Under section 122 of the Act, one can transfer immovable property through registered gift deed. The immoveable property is transferred voluntarily without any consideration.

It is essential that such acceptance by donee must be made during the lifetime of the donor.  The gift is void, if the donee dies before acceptance of such gift.

Main terms related to gift deed are:

Donor- (transferor) who transfers such property in gift.

Donee – who accepts or on his behalf accepts  such property in gift from donor(transferor).

Relinquishment:

Relinquishment is surrendering inherited or parental rights for another “legal heir”/ “another collateral” in the same property. In simple terms, relinquishment is a family arrangement where one legal heir surrenders his share in the property with or without monetary consideration for another legal heir. It also transfers property permanently.

Thus, sale, gift deed, relinquishment, lease, mortgage are the main modes of transfer of property. If the property involved in such transactions is immovable and having valuation of Rs. 100 or more then such transfer must be effected by registered instrument as provided by the laws.

Thanks for reading till the end. Note down all the important points for your preparation and Best of Luck for your exams! Please share this blog.

#Bharat #India #StudyHelp #Notes #StudyMaterial #TransferOfPropertyLaw #PropertyLaw #LawsOfProperty

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List of references:

Procedure of Transfer of Immovable Property

Modes of transfer of property under Transfer of Property Act, 1882

 

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