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.

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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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What is meant by 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 transfer of property.

What is meant by transfer of property?

Section 5 of the Transfer of Property Act, 1882 defines the Transfer of the Property. The said Sections reads as follows:

5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons;

and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

As per the Section 5, transfer of property means an act by which a living person conveys property, in present or future, to one or more living persons, or to himself or to himself and one or more other living persons. ‘Living person’ includes a company or association or body of individuals, whether incorporated or not.

The property may be movable or immovable, present or future. Such transfer can be made orally, unless transfer in writing is specifically required under any law.

Any person competent to contract and entitled to transferable property, or authorized to dispose of transferable property on his own, is competent to transfer such property. The property can be transferred wholly or in part. It can be transferred either absolutely or conditionally. Such transfer can be only to the extent and in manner allowed and prescribed by law.

The Transfer of Property Act, 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings. The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange. The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable on the disposal of properties through wills and does not deal with cases of succession of property.

Conclusion:

Thus Section 5 of the Transfer of Property act, 1882 provides for the transfer of properties between living persons. The person may include a legal personality. The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange.

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List of references:

1) Section 5 in The Transfer of Property Act, 1882

2) Transfer of property definition

3) Transfer of Property Act, 1882: Key facts

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Relevant case laws distinguishing between movable and immovable properties

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 relevant case laws related to the difference between movable and immovable properties.

In the previous blog, we discussed the concept of the property and the differences between movable and immovable properties.

Relevant case laws distinguishing between movable and immovable properties:

1) Baijnath vs. Ramadhan and Anr, AIR 1963

Question: – Whether standing shisham or neem trees are standing timber within the meaning of section 2(6) of the act?

Judgment: – In this case, the court held that the prime importance is given to the intention. That the tree in question was meant to be dealt with the parties just to cut off or to use it as standing timber and not merely as a tree.

2) Shantabai vs. State of Bombay, AIR 1958 SC 532

Question: If a tree is beneficial for both wood and timber, like mango, will it be considered as movable or immovable property?

In this case, the court held that real intention will be considered, as to for what purpose was the tree planted. Entering into the land and cutting trees will fall under the category of benefits arising out of the land. If the tree is grown for fruits, it is considered as immovable property and if it is grown for timber then it is considered as moveable property.

3) Kapoor construction vs. Leela Nagaraj & Ors. AIR 2005

In this case, the court held that there are some important factors to determine whether the property is movable or immovable. The factors are: – Intention, Mode of annexation, and Degree of annexation.

4) Marshall Vs Green

It was held that the interest of the contract will determine the tree as moveable property or immovable property. The Contract of sale will be considered in such cases.

5) Mahadeo v. State of Bombay [AIR 1959 SC 735]

The distinction which prevailed in English law between fructus naturales and fructus industriales does not exist in Indian law, and the only question which would ‘fall to be considered in India is whether a transaction concerns ‘goods’ or ‘movable property’ or ‘immovable property’. The importance of this question is twofold: (1) in the case of immovable property, a document of the kind specified in Section 17 of the Registration Act requires to be compulsorily registered and if it is not so registered, the consequences mentioned in ‘Sections 49 and 50 of that Act follow, while a document relating to goods or moveable property is not required to be registered; and (2) by reason of the interpretation placed on Entry 54 in List II in the Seventh Schedule to the Constitution of India by this Court a State cannot levy a tax on the sale or purchase of any property other than ‘goods’.

6) Ananda Behera v. State of Orissa [AIR 1956 SC 17]

A ‘benefit to arise out of land’ is an interest in land and therefore immovable property.

These are all the cases related to the definition of property and distinguishing between movable and immovable properties.

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List of references:

1) Difference between Movable and Immovable Property

2) Movable And Immovable Property – Meaning And Differences

3) Property

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What is the concept of property? What is the distinction between movable and immovable property? Discuss and explain with the help of suitable case law or illustrations.

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 concept of property.

What is the concept of property? What is the distinction between movable and immovable property? Discuss and explain with the help of suitable case law or illustrations.

Concept of Property:

Property is an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or a copyright. Because property law deals with the allocation, use, and transfer of wealth and objects of wealth, it must reflect the economy, family structure, and politics of the society in which it is found.

Property is defined under Clause (36) of Section 3 of the General Clauses Act, 1897 and clause (9) of Section 2 of the Registration Act, 1908 as well as Section 3 of the Transfer of Property Act, 1882. Indian legislation classifies the term ‘property’ under various categories like tangible and intangible, real and personal, corporeal and incorporeal, and movable and immovable property.

Various Statutory definitions of term property:

The General Clauses Act, 1897

Section 3 (26): “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

The Benami Transactions (Prohibition) Act, 1988

Section 2(c) “property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

The Sales and Goods Act, 1930

Section 2 (11) “property” means the general property in goods, and not merely a special property.

The Transfer of Property Act, 1882

Section 3 “immoveable property” does not include standing timber, growing crops or grass.

The Registration Act, 1908

Section 2(6) “Immovable Property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass; and

Section 2 (9) “Movable Property” includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.

Movable and immovable property:

In Indian legal systems the types of property considered mainly are

a) Movable Property: Anything that is not affixed to the land can fall under the category of movable property, irrespective of its shape, size, quality, or quantity, e.g. Vehicles, electronic devices, jewellery, books, timber, growing crops and grass etc.

b) Immovable property: As the nomenclature suggests, immovable property definition states that it is any property with rights of ownership attached to land and that cannot be moved, e.g. agricultural land, villa, flat, mines, water bodies, etc.

Difference between movable and immovable property:

Movable Property	Immovable Property
The movable property can easily be transported from one place to another, without changing its shape, capacity, quantity or quality.	Immovable property cannot be transported from one place to another.
Movable property refers to movable assets (such as your computer, jewellery, vehicles, etc.).	Immovable property commonly refers to real estate (such as your house, factory, manufacturing plant, etc.)
Movable property is one, which can be transferred from one place to another place with the human efforts.	Immovable property includes land, benefits arising out of land and things attached to the earth or permanently fastened or anything attached to the earth.
It includes stocks and shares, growing crops, grass, and things attached to or forming part of the land, and which are agreed to be severed before sale, or under the contract of sale	It includes land, benefits to arise out of land, and things attached to the earth
If the thing is resting on the land merely on its own weight, the presumption is that it is movable property, unless contrary is proved.	If the thing is fixed to the land even slightly of it is caused to go deeper in the earth by external agency, then it is deemed to be immovable property.
If the purpose was only to enjoy the thing itself, then it is movable property even though it is fixed in the land.	If the propose of annexation of a thing is to confer a permanent benefit to the land to which it is attached, then it is immovable property.
Examples Right of worship; royalty; a decree of sale of immovable property; a decree for arrears of rent; Government promissory notes; standing timber, growing corps and grass.	Benefits to arise out of land such as hereditary allowances, right of way, ferries and fisheries, right to collect rent and profits of immovable property; a mortgage-debt; right to cut grass of one year, a factory; etc.
No registration is required to transfer a movable property.	Transfer of immovable property requires registration of the document.

 

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List of references:

1) Property Legal Concept

2) Brush Up Your Basic Knowledge About Movable and Immovable Property

3) Difference between Movable and Immovable Property

Salient features of Dowry Prohibition Act, 1961

The practice of dowry has to be examined in the broader context of the devalued status of women. Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home.

Dowry Prohibition Act, Indian law, enacted on May 1, 1961, intended to prevent the giving or receiving of a dowry.

Amendments to the original Dowry Prohibition Act also established minimum and maximum punishments for giving and receiving dowry and created a penalty for demanding dowry or advertising offers of money or property in connection with a marriage. The Indian Penal Code was also modified in 1983 to establish specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.

The definition of dowry in the Dowry Prohibition Act, 1961 is given in Section 2 as follows:

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry does not include dower or mahr in the case of Shariyat laws.

The definition of the dowry includes the demand for any property before marriage, at the time of marriage, or even after the marriage from one party of marriage to the other party. Such demand should be in connection with the marriage. This demand shall be fulfilled by the party of the marriage, or parents of the party of the marriage, or any other related person of the party of the marriage.

If the husband demanded an amount of Rs 50,000 by way of dowry some days after the marriage from the wife’s father and in the event of her not being able to give that amount was subjected to torture, it would mean that the amount was demanded in connection with the marriage and it was a demand of dowry even though it was demanded after marriage.

The Dowry Prohibition Act 1961 does not bar the traditional giving of presents at or about the time of a wedding. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute. But it is provided that such gifts must not be demanded, they must be given voluntarily.

The Act provides for the penalty for taking dowry and abetting to take dowry. Such a person may get a punishment of imprisonment not less than five years and he has to pay a fine of at least 15,000 or value equal to such dowry demanded, whichever the more. Such punishment is provided in Section 3 of the Act.

The Act also makes agreements of giving and taking dowry void by Section 5.

Section 6 of the Act provides for the transfer of the property received in the name of dowry to the woman within three months from the date of its receipt. Such transfer in the name of the woman will be beneficial to her and her children. If the receiver of the dowry fails to transfer such property to the concerned woman then an amount equal to the value of the property may be recovered from him.

Every offence under the Act is non-bailable and non-compoundable.

The Act empowers the State Government to appoint the Dowry Prohibition Officer and to make rules for carrying purpose of the Act. Also, Central Government is empowered to make rules for the implementation of the Act.

 

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References:

1) The National Commission for Women Recommendations and suggestions on Amendments to the DOWRY PROHIBITION ACT, 1961

2) Dowry Prohibition Act

3) Dowry Prohibition Act, 1961

Bigamy in India:

Meaning:

Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond that joins two lives together till the end of their lives, unlike in other countries where entering into a marriage is a contract.

If a certain person in a marital bond cheats with the other person and enters into a new bond of marriage during the lifetime of the other partner, doing this is also known as committing the offence of Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of happiness and peace of the previous partner in marriage.

The second marriage while the first marriage is in subsistence is called Bigamy. Bigamy, in simple words, means a person marries for the second time while his first marriage is in subsistence.

The bigamy law is applicable to Hindus, Jains, Buddhists, Sikhs, Parsis, and Christians [except Muslims].

Position in society:

In a case, where the husband or the wife is alive then, the second marriage contracted by a person is not legal and does not hold any validity in the eyes of law, i.e. it is termed to be a void marriage. The position of bigamy in India is certainly mentioned in the law but the practice is still very common and hence the contrast between the law and social practice results in the second wives not having enough protection.

Women in the second marriage are cheated on and are not provided with much protection under Indian laws. There is no legal recognition given to second wives. Nevertheless, the victims of bigamy can still approach the Courts for claiming maintenance. The second wife is entitled to maintenance, she is not entitled to property rights.

Legal provisions;

The key law forestalling Bigamy in India is the Indian Penal Code yet in the event that personal laws do not explicitly specify Punishment for Bigamy or illegalize Bigamy, at that point any person can’t be indicted for the offense of bigamy. Bigamy is prohibited in India under Section 494 of the Indian Penal Code. The law expresses that, whoever marries another person in the lifetime of the existing spouse, such marriage by reason of its occurring during the lifetime of such husband or wife, should be viewed as void and should be punished for such offense. If any person marries more than once during the life of his first spouse, he/she should be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.

Section 494 of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife living, marries again in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Bigamy in India is a non-cognizable offence. It is bailable and compoundable when the permission of the Court is granted if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, of a maximum of 7 years or a fine or in some cases, both. In case the person charged with bigamy has performed the second marriage by concealing the fact of the first marriage, then he shall be punished with imprisonment of up to 10 years or a fine or both. Such offence under section 495 is not compoundable.

Hindu Marriage Act, 1955- As per the Section 17 of the Hindu Marriage Act, 1955, if a person considered to be a Hindu under the Act, marries another person in the existence of his/her first marriage, i.e, while the first husband or wife is alive, then that person shall be punished under the Indian Penal Code. Section 16 of the Hindu Marriage Act 1955 states that the children born from a bigamous relationship shall be held perfectly valid. But there is no legal recognition for the second wife, but she may have a chance of maintenance under the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986- Under this Act, unlike other religions, there are no particular or specific provisions for bigamy. A Muslim man has a right to marry twice, thrice, or four times if he is able to treat and respect all of his wives in an equal manner. In case he fails to do so, then he is liable.

Parsi Marriage and Divorce Act, 1936- Section 5 of this act affirmed Bigamy null and void or dissolved and imposes a penalty which has been laid down under Section 494 and 495 of Indian Penal Code, 1860.

Christian Divorce Act, 1896- This act does not provide a specific law for bigamy but at the time of registration of marriage, Section 60 lays down that none of the parties to the marriage should have been in an existing marriage and if a person gives a fall oath or declaration, then he/ she is punishable under Section 193 of the Indian Penal Code. This provision explains that under this Act, more than one marriage is considered to be illegal.

Special Marriage Act, 1954- Section 44 of this Act lays down that if any person commits bigamy then he/ she is liable under Section 494 and 495 of the IPC, 1860.

Foreign Marriage Act 1969- Section 19 of this act states the punishment for Bigamy and imposes a penalty under Sections 494 and 495 of the Indian Penal Code.

Sarla Mudgal v. Union of India (1995 AIR 1531 SC): The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife ), the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.”

Bigamy shall not apply if:

a) the first husband or wife is dead, or

b) the first marriage has been declared void by the Court of competent jurisdiction, or

c) the first marriage has been dissolved by divorce, or

d) the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

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References:

1) Rights of the second wife in India

2) Is Bigamy a Punishable Offence in India?

3) BIGAMY LAWS FAQ

Salient features of conventions for elimination of all forms of discrimination against women:

 

Article 1 of the CEDAW defines discrimination against women as follows:

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), human rights treaty adopted by the General Assembly of the United Nations in 1979 that defines discrimination against women and commits signatory countries to take steps toward ending it.

The convention, which is also known as the International Bill of Rights for Women, consists of 30 articles and includes an optional protocol (OP). Human rights agreements often include OPs to provide an alternative mechanism to hold governments accountable or to further elaborate on any substantive topic within the treaty itself.

The rights listed in the Convention for Elimination of all forms of Discrimination Against Women (CEDAW) cover many aspects of women’s lives and relate to political participation, health, education, employment, housing, marriage, family relations, and equality before the law.

Under CEDAW, governments are also responsible for ensuring that individual citizens and private organisations do not discriminate against women.

The CEDAW requires both substantive and formal equality, non-discrimination, and empowerment of women, therefore recognizes that formal equality alone is insufficient for a state to meet its obligation and requires measures to address both direct and indirect discrimination to achieve substantive equality between men and women.

CEDAW provides for the right to education of females, protect the reproductive right, sex trafficking and exploitation; political and civil rights, such as the right to vote; health, employment, and marriage; and specific issues affecting rural women, such as access to agricultural credit and loans.

The Committee on the Elimination of Discrimination against Women (CEDAW Committee) is the international body charged with monitoring the implementation of the legal obligations of the 189 States parties under the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW).

The CEDAW Committee monitors the progress made by the countries, which have ratified or acceded to the convention, in implementing CEDAW.

The CEDAW Committee is made up of 23 independent elected members (elected by countries who have signed CEDAW) who serve in their personal capacity as ‘gender experts.’

The CEDAW Committee meets three times a year to address specific topics related to CEDAW and to monitor and report on the progress of individual countries that have signed CEDAW.

Countries that have signed CEDAW are required to submit reports to the CEDAW Committee at least every four years.

Thus it can be concluded that CEDAW is the convention that enables feminist jurisprudence in the 189 countries that signed the convention. There is a CEDAW committee that monitors the implementation of measures taken to enforce the CEDAW provisions. This convention not only provides for the discrimination of women but also heinous crimes against women, such as trafficking, sexual violence, etc.

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References:

1) Committee on the Elimination of Discrimination against Women (CEDAW)

2) Convention on the Elimination of All Forms of Discrimination Against Women

3) The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW): Sex Discrimination - International Activities