Mulla on the Transfer of Property Act, 1882

1579 Pages·2018·7.509 MB·English

by  Dinshaw Fardunji Mulla

Mulla
on
The Transfer of
Property Act
Introduction
Mulla The Transfer of Property Act, 13th ed
MullaDr Poonam Pradhan Saxena
Mulla The Transfer of Property Act, 13th ed > Mulla The Transfer of Property Act, 13th ed > Introduction
Introduction
Prior to the Transfer of Property Act, 1882, there was practically no law relating to real estate in India. A
few points were covered by the Regulations and Acts which were repealed either wholly, or in part by
section 2. But for the rest of the law, the courts, in the absence of any statutory provisions, adopted the
English law as the rule of justice, equity, and good conscience. This was not satisfactory, for the rules of
English law were not always applicable to social conditions in India, and the case law became confused
and conflicting. To remedy this state of affairs, Commission was appointed in England to prepare a code
of substantive law for India.
The first Law Commission consisted of Lord Romilly, MR; Sir Edward Ryan, Chief Justice of Bengal;
Lord Sherbrooke; Sir Robert Lush; and Sir John Macleod, who assisted Lord Macaulay in drafting the
Indian Penal Code. This Commission drafted the Indian Succession Act, the Indian Contract Act, the
Negotiable Instruments Act, the Indian Evidence Act, and the Transfer of Property Act.
The Transfer of Property Act, though drafted in 1870, was the last of these drafts to become law. The draft
was sent to India by the Duke of Argyll who was then Secretary of State for India, and after some
amendments, it was first introduced as a Bill in the Legislative Council in 1877. The Bill was then
referred to a Select Committee, by whom it was revised and circulated for public criticism. In deference to
this criticism, all matters not directly referring to transfers inter vivos were omitted; some clauses referring
to trusts, powers and settlements were dropped; and other clauses were added with a view to save the
provisions of local law and usage.
The Bill thus redrafted was referred to the Second Law Commission consisting of Sir Charles Turner,
Chief Justice of Madras; Sir Raymond West; and Mr Whitley Stokes, Law Member of the Council of the
Governor-General; but no less than seven Bills were prepared before the first Bill was introduced in the
Legislative Council by Mr Whitley Stokes, and passed into law on 17 February 1882.
The Second Law Commission in their report of 1879 said “the function of the Bill was to strip the English
law of all that was local and historical, and to mould the residue into a shape in which it would be suitable
for an Indian population and could easily be administered by non-professional judges.”
Some of the provisions of the Bill were borrowed from the enactments which it repealed and superseded,
but the Bill was based mainly on the English law of real property. The Law of Conveyancing and Property
Act, 1881 (44 and 45 Vict c 41) had been enacted in England before the Bill was passed into law, and
some of the provisions of the Act, notably sections 57, 61 and 69, are borrowed from that statute.
The Act was afterwards amended on 12 separate occasions by the following Amending Acts:
Page 2 of 5
Introduction
1. Act 3 of 1885—amending sections 1, 4, 6(i), and 69. It abolishes exemptions from the Act on the
ground of race, and reconciles the provisions of the Registration Act with those of the Transfer of
Property Act.
2. Act 15 of 1895—which exempts government grants from the operation of the Transfer of
Property Act.
3. Act 2 of 1990—amending sections 3, 6(e), and 6(h), and remodelling chapter VIII which deals
with transfers of actionable claims.
4. Act 6 of 1904—amending sections 1, 59, 69, 107 and 117. It enables a local government to extend
part of the Act of specified territories, and to apply the provisions of the Act relating to leases to
particular classes of agricultural leases. It provides for the registration of certain mortgages and
leases, and for equitable mortgages in moulmein, bassein and akyab.
5. Act 5 of 1908—transferring the adjective law of mortgages to the Code of Civil Procedure.
6. Act 11 of 1915—amending section 69.
7. Act 26 of 1917—validating mortgages and gifts in Agra and Oudh executed before 1 January
1915, and attested on acknowledgement of execution.
8. Act 38 of 1920—omitting the words “with the previous sanction of the Governor-General in
council” from sections 1 and 117.
9. Act 38 of 1925—amending section 130.
10. Act 27 of 1926—amending section 3 by inserting a definition of the word “attested’”
11. Act 10 of 1927—amending section 3 by making the definition of the word “attested”
retrospective.
12. Madras Act 3 of 1922—modifying the provisions of the Act to give effect to the provisions of the
Madras City Tenants Protection Act, 1922.
Despite these amendments, there were conflicting decisions on nearly every section of the Act, and a
further exposition of the law became necessary. Accordingly in 1927, a Special Committee, consisting of
Mr SR Das, Law Member of the Council of the Governor-General, Mr BL Mitter (afterwards Sir
Brojendro Lal Mitter), then Advocate-General of Bengal, Dr SN Sen, and Mr Dinshah Mulla (afterwards
the Honourable Sir Dinshah Mulla, PC) were appointed to examine the provisions of a Bill prepared by
the legislative department of the Government of the India for the purpose of making a general amendment
of the Act. The Bill which was the result of their labour was, after a slight amendment in Select
Committee, enacted in the Transfer of Property (Amendment) Act 20 of 1929.
The Act as amended sets at rest points on which decisions have been conflicting, and made several
changes in the law, of which the most important are:
Section 3 – Registration amounts to notice.
Section 3 – Constructive notice to an agent is notice to his principal.
Section 15 – Validation of transfers to a class of some members as regards which it fails.
Section 53A – Statutory recognition of the doctrine of part performance.
Section 58 – In a mortgage by conditional sale, the condition must be embodied in the same deed.
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Introduction
Section 60A – A mortgagor entitled to redeem may require the mortgagees to transfer the mortgage debt
to a third party.
Section 60B – Statutory recognition of the mortgagor’s right of inspection of title deeds.
Section 61 – Mortgagor’s right to redeem several mortgages to the same mortgagee separately, or
simultaneously.
Section 63A – Statutory recognition of the mortgagee’s right to compensation for necessary
improvements.
Section 65A – Statutory recognition of the mortgagor’s power to lease.
Section 67 – Abolition of the remedy of foreclosure in certain mortgages.
Section 67A – Mortgagee’s obligation to enforce several mortgages by the same mortgagor
simultaneously.
Section 69A – Provision for appointment of a receiver by a mortgagee exercising a power of sale without
the intervention of the court.
Section 92 – An extension of the principle of subrogation.
Section 101 – A modification of the law of merger.
Section 107 – Provision requiring registered leases to be executed by both parties.
The amending Act involved amendments in various other Acts, of which the more important are as
follows:
The Married Women’s Property Act, 3 of 1874, has been amended to make it clear that section 8 of that
Act is subject to section 10 of the Transfer of Property Act.
The Specific Relief Act, 1 of 1877, was amended in accordance with the statutory recognition of the
doctrine of part performance in section 53A of the Transfer of Property Act. (The Act was re-enacted in
1963.)
The Code of Civil Procedure, Act 5 of 1908, is amended in O 34 relating to mortgages. Provision is made
to allow a mortgagee to recover sums spent for necessary costs, charges and expenses. This is in
accordance with section 63A which allows a mortgagee, compensation for improvements in certain
circumstances. Mortgages by deposit of title deeds are included in rule 15 of O 34 as such mortgages are
included in the definition in section 58, and the old rule 11 is omitted as the principle “redeem up
foreclose down” is now embodied in section 94. Other amendments include provisions which make it
clear that the right of redemption is not extinguished until a final decree for foreclosure has been made, or
until a sale in execution of a mortgage decree has been confirmed.
The Indian Limitation Act, 9 of 1908, was amended by including suits for the enforcement of mortgages
by deposit of title deeds in the 12-year period of limitation under Article 132.
Page 4 of 5
Introduction
The Indian Registration Act, 16 of 1908, was amended to provide that a mortgage by deposit of title
deeds, though an oral transaction, cannot be displaced by a subsequently registered instrument; and also to
allow an unregistered instrument to be admitted as evidence of part performance of a contract with
reference to section 53A of the Transfer of Property Act.
The Indian Succession Act, 39 of 1925, was amended to correspond with amendments made in chapter II
of the Transfer of Property Act with reference to transfers inter vivos.
All these amendments were made by a separate Act, the Transfer of Property (Amendment)
Supplementary Act 21 of 1929.
Further amending Acts were passed after the legislation of 1929. Act 5 of 1930 amends explanation I to
section 3 with reference to the operation of registration of a deed of notice when the deed is registered in a
different district; and Act 16 of 1930 amends O 43, rule 1(o) of the Code of Civil Procedure in accordance
with the amendments made in O 34, and Act 35 of 1934 inserts the word “naval” after the word “military”
in clause (g) of section 6.
There have been few major changes since 1947. In that year, the Disposition of Property (Bombay)
Validation Act, 1947, was passed to validate the bequests held void by the Privy Council in Sopher’s case.
After 1947, the jurisdiction of the Privy Council was abolished, and the Federal Court and later the
Supreme Court became the final court of adjudication in India.
Successive adaptation of orders in 1950 and 1956 have nominally altered the Act by, for example, altering
the words “Province”, “British India”, “Part B State”, etc.
In 1959, Parliament enacted the Miscellaneous Personal Laws (Extension) Act, 1959, which extended the
Hindu Disposition of Property Act, 1916, to the whole of India except Jammu & Kashmir, and Madras
Acts I of 1914 and 8 of 1921 were repealed.
The Limitation Act, 1963, has repealed and largely re-enacted the Act of 1908. Among the few changes
relevant here is the new Article 63 (a), which provides for a period of 30 years for all suits for foreclosure;
and the absence of a provision corresponding to the old Article 116, which provided for a period of six
years for compensation for the breach of a contract that is registered. All such suits would now be treated
on the same footing, irrespective of whether the contract is registered.
1963 also saw the enactment of the Specific Relief Act, 1963, which repeals and partly re-enacts the Act of
1977. Section 27A of the Act of 1877 which enacted the active equity of part performance as in English
Law has not however, been re-enacted.
Benami Transaction (Prohibition) Act, 1988, takes away the plea of Benami purchase, and has made the
litigation and transactions under the Transfer of Property Act, much simpler.
By Registration and other Related Laws (Amendment) Act, 2001 (Act 48 of 2001) which came into force
from 24 September 2001, far reaching amendments have been made to the Registration Act, 1908, and
section 53A of the Transfer of Property Act, 1882. On or after the commencement of the amending Act, if
the document containing contract to transfer for consideration any immovable property is not registered,
then, for the purpose of section 53A, the right to defend possession pursuant to part-performance will not
be available.
Page 5 of 5
Introduction
The Parliament, by Transfer of Property (Amendment) Act, 2002 (Act 3 of 2002) which came into force
on 31 December 2002, has substituted section 106 in order to eliminate the technical pleas so far taken on
the basis of the language employed in unamended section 106, and avoid multiplicity of litigation leading
to serious injustice. The transitory provisions made under the amending Act are very material since the
provisions contained in amended section 106 have been made applicable even to the suits or proceedings
pending at the commencement of the amending Act.
End of Document
Glossary
Mulla The Transfer of Property Act, 13th ed
MullaDr Poonam Pradhan Saxena
Mulla The Transfer of Property Act, 13th ed > Mulla The Transfer of Property Act, 13th ed > Glossary
Glossary
Ab initio.–(Latin). From the beginning.
Abadi.–A cultivated tract. A farm.
Abkari.–Revenue derived from duties on the manufacture and sale of intoxicating liquor.
Accessio cedit principali.–(Latin). The accession is added to the principal. A maxim of Roman law by
which ownership is acquired by accession.
Adaimanam patram.–(Tamil). A deed of simple mortgage.
Adhlapi.–A transaction, customary in the Punjab, by which a person sinks a well and clears the land and
receives in return a proprietary interest in a share of the land.
Advancement.–A payment to start a child in life or to make provision for him.
Alienojure.–(Latin). In the right of another.
Alio intuitu.–(Latin). With a different view of prospect. For a different purpose.
Ba Farzandan.–(Persian). With children, including descendants. The words indicate that the grant is to
the grantee and his posterity.
Bai-bil-wafa,–See “Bye-bil-wafa”.
Bandhak.–(Sanskrit). A pledge, a mortgage.
Bandhakikhat.–(Bengali). A deed of mortgage. Also bandhaknama and bandhak patra.
Bastu.–A house site, a building plot.
Batai.–(From Sanskrit Vut, to divide). A share. A division of the crop between the landlord and the
cultivating tenant.
Battaki.–See Buttaki.
Bemaidi.–Without a term. Also Bemeyadi. For the construction of a bemaidi lease see Janaki Nath v Dina
Nath, (1933) 54 Cal LJ 412, 133 IC 732.
Page 2 of 16
Glossary
Benami.–Nameless, fictitious, A transaction under a false name.
Bhagbandhak.–A possessory mortgage.
Birt.–(From the Sanskrit Vritti, maintenance, means of livelihood). Fees to family priest. A right, custom
or privilege derived from the performance of offices whether secular or religious. A grant of land to a
person for maintenance or for religious or charitable objects Wilson’s Glossary.
Birt-maha brahamani.–Fees or presents received by a Brahimin who conducts funeral ceremonies.
Brahmottar–(Bengali). Land granted rent free to Brahminsfor their support and that of their descendants.
Such lands have frequently been acquired by non Brahmins.- Wilson’s Glossary.
Burgadar.–A person who cultivates the land and gives, a share of the profits to the owner. He is not
necessarily a lessee. See Brahmamoyee v Sheikh Munsur, (1920) 32 Cal LJ 37.
Buttaki.–Proclamation by beat of drum.
Butwara.–Partition. Butwara proceedings are proceedings for partition with the sanction of the revenue
authorities.
Bye-bil-wafa.–(Arabic). Literally a sale with faith. A mortgage by conditional sale.
Caveat emptor.–(Latin). Let a purchaser beware. “‘Caveat emptor does not mean either in law or in
Latin that the buyer must take chances, it means that the buyer must take care”: Wallis v Russell, (1902)
21R 585, p 615.
Cess.–A tax or rate. A great many miscellaneous cesses, imposts and charges were imposed under the
Government of the Moghuls in addition to the land revenue both by the government and the zemindars.
These have been either abolished or assimilated with the land revenue. The cesses abolished are called
siwai (ie extras) or abwa or mathaut: Section 74 Bengal Tenancy Act 8 of 1885. Other cesses indirectly
connected with the use of land and water and called sayar the landlord was allowed to retain: Section 3(4)
Agra Tenancy Act, UP Act 3 of 1926. Such cesses were Banker or a tax on jungle products; and Julfar, a
tax on fisheries; and Phulkar, a tax on fruit trees.
Cestui que trust–The beneficiary of a trust.
Chakran lands.–Lands held on service tenure. Generally speaking, the term includes all lands so held
whether by police officials, chowkidars or persons whose duties are personal to the zamindar: Ranjit
Singh v Kali Dasi, 44 IA 117, (1917) ILR 44 Cal 841.
Champerty and maintenance.–Practices forbidden by English law which are the fomentation of
litigation in which one has no interest of one’s own. A bargain whereby one party is to assist another in
recovering property and ‘is to share in the proceeds of the suit.
Char.–Land formed by alluvion.
Chevisance.–The business of a scrivener, ie, a shroff or dealer in money.
Page 3 of 16
Glossary
Chose in action.–A term of English law, for a thing recoverable by action as contrasted with a thing or
chose in possession. An actionable claim.
Chowk.–A courtyard. A square.
Ghowkidar.–A village watchman remunerated by an allotment of land held either rent free or at a low
rent in consideration of services to be rendered to the zemindar, who, before the English occupation, was
responsible not only for the payment of revenue, but also for the preservation of peace and order within
his district. The chowkidar rendered not only police service, but personal service to the zemindar: Ranjit
Singh v Kali Dasi, 44 IA 117, (1917) ILR 44 Cal 841, 40 IC 981.
Chuck.–A corruption of “Chak” (Sanskrit Chak, or Chakra a circle or district). A portion of land divided
off. The detached fields of a village. A patch of rent free land. A separate estate or farm. A sub-division of
survey number.–Wilson’s Glossary.
Covinous.–Collusive. Covine is “a secret assent determined in the hearts of two or more to the defrauding
and prejudice of another.”- Co Litt, 357.
Damdupat.–A rule of the Hindu law of debts by which the interest recoverable at any one time cannot
exceed the principal.
Darpatni.–A tenure subordinate to a patni. A sub-leasehold. See Patni.
Darpatnidar.–A holder of a darpatni.
Dartaluk.–A subordinate taluka or estate the holder of which pays revenue through a superior talukdar or
zemindar.
Darwans.–Doorkeepers. Porters.
Debutter–(A corruption of Deotar from the Sanskrit Devatra belonging to the deity.) Land granted rent
free for the support of a temple or idol.
De die in diem–(Latin). From day to day.
Demise–A transfer by way of lease.
Deorha.–One and half. Used to express interest in kind at the rate of 50%.
Deshgat watan.–A hereditary district office remunerated by a cash allowance or a grant of rent free land.
Dharm.–(From the Sanskrit Dhar, to hold)- That which holds a man in the right path. Law, virtue, legal
or moral duty.- Wilson’s Glossary.
Dhrista bandhaka.–(From Sanskrit “Dhristi, sight and Bandhak, a pledge). A simple mortgage.
Diggubhogyam.–(Tamil). A simple mortgage.
Dowlferist or Daulferist–A rent roll. A statement of rents demanded by zemindar from his tenants.
Page 4 of 16
Glossary
Ejusdem generis.–(Latin). Of the same nature. A rule of construction whereby general terms following
particular ones are taken to apply to persons and things which are of the same nature as those
comprehended in the particular terms.
En ventre sa mere.–(French). In his mother’s womb.
Ex-proprietary tenant.–A landlord or proprietor who has lost his proprietary rights by alienation
voluntary or involuntary and has become a tenant with a right of occupancy in his sit land and in land
which he has cultivated continuously for a specified number of years.See The Oudh Rent Act 1886 (UP
Act 22 of 1886) section 7 A; The Agra Tenancy Act 1926, (UP Act 3 of 1926) section 14; The North West
Provinces Tenancy Act 1901, (NWP Act of 1901) section 10. See also “Sir.”
Ex-proprietary tenant.–An ex-proprietary tenant is a landlord who has lost his proprietary right but who
remains a tenant with a right of occupancy of his sir or home farm land; See The Agra Tenancy Act, UP
Act 3 of 1926, sections 14 & 15; The North-West Provinces Tenancy Act, NWP Act 2 of 1901, section
10. See also “Sir”.
Fee Simple.–A term of English real property law denoting an absolute estate. “Fee signifieth inheritance
and simple is added for that is descendible to his heirs generally that is simply without restraint to the
heirs of the body or the like. The word (simple) properly excludeth both conditions and limitations that
defeat or abridge the fee” (Co Litt 1 b: Halsb Vol 24, para 315).
Fee Tail.–A term of English real property law denoting a restricted estate or feudum talliatum or an estate
tail. “To hold in fee Tail or in Tail is where a man holdeth certain lands or tenements to him and to his
heirs of his body begotten.” (Terms de la Ley; Halsb Vol 24, para 442.)
Feoffment.–A term of English real property law denoting a conveyance in fee simple.
Forehand rent.–Rent payable in advance.
Gage.–A pawn or pledge. (From the same root as the word engage.)
Gahan.–(Marathi). A pledge. A mortgage.
Gahan Lahan.–(Marathi). A mortgage by conditional sale.
Ghatwa1.–Literally the guard of the ghat or hill pass. Ghatwal lands were holding created in frontier
territories so that the holders might be ‘wardens of the Marches. the State granting lands to be held free on
condition of guarding the passes: Baden Powell Land Systems of British India, Vol I, p 532. The person
holding the office of ghatwal is bound to perform police duties and quasi military duties in consideration
of a remuneration which may take the form of the use of land or an actual estate in land, heritable and
perpetual: Narayan Singh v Niranjan Chakravarti, (1924) 51 IA 37, 3 Pat 183, 79.1C 825, AIR 1924 PC
5. The tenure, though peculiar because of a certain reserved power of selection, nevertheless ranks as
hereditary: Raja Durga Prasad v Tribeni, (1918) 45 LA 251, 46 Cal 362: Secretary of State vJyoti Prasad
(1926) 53 IA 100, 53 Cal 533, 94 IC 974, AIR 1926 PC 41. The Birbhum yhatwallands were declared
transferable and heritable subject to a rent fixed in perpetuity by Beng Reg 29 of 1814.
Gross.–A thing or right in gross is one which is independent of anything else. Thus a right or common of
pasture appendant may exist in respect of arable land: Tyrringham’s case (1584) 4 Co Rep 36a, 37. But a