SECTION 3 Flashcards
IMMOVABLE PROPERTY
The Transfer of Property Act, 1882 has not defined this term. It only says that
“immovable property” does not include standing timber, growing crops or grass.
As the definitions given by the Act is neither comprehensive nor exhaustive and only excludes certain things, it becomes necessary to explore other Acts which have defined the term “immovable property”
** “Immoveable property” shall include land, benefits to arise out of land, and things attached to the earth, as permanently fastened to anything attached to the earth.**
“Immovable Property” includes land, buildings, hereditary allowances, right 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, or grass.
Things included in immovable property
The following have been judicially construed as included in immovable property:—
(a) A right of ferry.
(b) A right of way.
(c) Right to collect rent of an immovable property.
(d) A right to catch and carry away fish.
(e) Hereditary offices i.e., office of a hereditary priest of a temple.
(f) Right to collect dues from holding a fair on a piece of land.
(g) Right to collect lac from trees.
(h) Right of redemption of mortgaged property.
(i) Reversion in property leased.
(j) A factory.
(k) The interest of a mortgagee in immovable property.
Mortgage Debt
Previously, a debt secured by mortgage of immovable property was considered as an actionable claim under section 3 of the Transfer of Property Act, 1882.
But after the amendment in 1900 the definition of an “actionable claim” expressly excludes a debt secured by a mortgage of immovable property and such a debt will now be treated as immovable property and it can be transferred only in the same way as an immovable property is transferred i.e., it can be transferred only by a registered instrument.
[s 3.2] Movable property.
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The Transfer of Property Act, 1882 has not defined “movable property.” According to the General Clauses Act, 1897 “movable property means property of every description except immovable property.
The following are held to be not immovable property:
(a) A royalty.
(b) A decree for sale of immovable property.
(c) A decree for arrears of rent.
(d) Right of worship.
(e) Machinery which is not permanently attached to the earth.
(f) Government promissory notes.
(g) A right to recover maintenance allowance.
(h) Standing timber, growing crops and grass.
[s 3.1.1] Land
Land includes the following elements when it is considered in its legal aspects:—
(a) A determinate portion of the earth’s surface.
(b) Column of space above the surface.
(c) The ground beneath the surface.
(d) All objects either on or under the surface of land in their natural state, for example, minerals. Land also includes lakes, rivers and pond which are land covered by water.
(e) All objects placed by human agency either on or under the surface of land with the intention of permanent annexation.
With permanent annexation these objects become part of the land and lose their separate identity. Example may be taken of buildings, fencing and walls etc.
[s 3.1.2] Benefits Arising Out of Land
All the benefits arising out of land are also considered as immovable property because such benefits cannot be severed from the land and are incidents of it. Right to collect lac, leaves etc. from trees, revenue from agricultural land, right to take out minerals, to collect fish from ponds, debt secured by mortgage of immovable property, rent from tenanted property are all benefits arising out of land.
Property may also be classified as “tangible” and “intangible”. Tangible properties are those properties which have physical existence and which can be seen or touched.
Tangible properties are also known as corporeal properties. Intangible properties, also known as incorporeal properties, have no physical existence.
They are in the form of some rights under which certain benefits are given to certain persons. Such rights are known as beneficial interests or beneficial rights. Therefore, any right which is exercised over land, by which one makes profit or gain is known as his beneficial right and it would be his intangible immovable property.
Right to profits a prendre is benefit arising out of land and is, therefore, immovable property. For example, a right to enter upon land and to carry away fish from a pond is a right to profits a prendre and is, therefore, immovable property.
Similarly, a right to graze over the land of another is a profit. A right to enter upon land and remove trees and a contract for the purpose of felling, cutting and removing bamboos from forest areas for the purpose of converting the bamboos in proper pulp etc., have been held to be profit a prendre or benefits arising from land
Similarly, right of ferry, right given to rear lac and right to take minerals from land—all are held to be benefits arising from land, and therefore, immovable property. However, where the benefits arising from land are related to standing timber, growing crops or grass, they are not considered as immovable property.
Things embedded in the earth.
Things embedded in the earth means those things
which rest by their own weight on earth. Example may be taken of houses, walls, buildings etc. There may be certain things which though embedded in the earth cannot be called immovable property.
The test for immovability is whether or not the thing rests by its own weight on earth and whether it can or cannot change place and be
removed from one place to another place.
Attached to what is so embedded.
Where a thing is attached to something embedded in the earth for its permanent beneficial enjoyment, the thing attached
becomes immovable property too.
Examples can be taken of doors, windows, ceiling
fans etc. which are fastened to the walls or ceilings of a house for their beneficial enjoyment.
However, electrical appliances, fittings, etc., though fastened to walls, doors etc. are not considered immovable because these are not permanent but only temporary and not necessary for the permanent beneficial enjoyment of walls, doors or house etc.
It is necessary that an attachment must be permanent and for the beneficial enjoyment of the thing to which they are attached. If the attachment is for the beneficial enjoyment of the thing itself, then it remains a chattel even though fixed to the earth for the time being.
Timber Trees and Standing Timber
Things which are rooted in the earth come under this category, for example, trees and shrubs. But all the trees are not immovable property.
Those trees which are used as standing timber i.e., which are cut for use as timber fall under movable property. Whereas those trees which are fruit-bearing are generally considered as immovable property.
Therefore, the fruit bearing trees can be both movable and immovable depending upon the circumstances. If the intention is to use them for their fruits, they will fall under immovable property but if they are to be used as standing timber they will fall under the category of movable property.
Timber is wood that is or can be used as construction material, as distinguished from wood that is used for other purposes such as firewood, etc.
Since the main purpose for growing timber trees is to use their wood for construction or building purposes, ‘standing timber’ must be a timber tree that is in a state fit for these purposes, and further, a tree that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is still rooted in earth.
If not, it is still to be categorised as an ordinary tree covered under the expression, ‘things rooted in earth’ because unlike timber, it continues to draw sustenance from the soil for its further growth.
Attested
Attestation means to sign and witness any fact. A property may be transferred by delivery of possession or by a written document. When the property is transferred through document, it is said that the deed or document of transfer has been executed by the transferor. The transferor of property who executes the deed is known as executant.
For execution of the deed it is necessary that two persons must be present who must witness that only the executant has written or signed the deed. This process of witnessing the execution of deed is called attestation and such persons are known as attesting witnesses.
According to Act, there must be two attesting witnesses, each must have seen the executant sign the instruments or affix his thumb impression to the instrument and each of the two attesting witnesses must have signed the instrument in the presence of the executant.
Attestation ensures the authenticity of the execution of a document. It confirms that only the executant has executed the document and that the execution was with free consent of the executant and there was no force, fraud or undue influence upon him.
However, by attesting, the attesting witnesses neither confirm that they have any knowledge of the contents of that document nor they are supposed to have given their consent to the transfer.
For a valid attestation, there must be at least two or more attesting witnesses. Any person who is of the age of majority and of sound mind can be an attesting witness.
For valid attestation ordinarily it is necessary that each witness must actually see the executant or any other person with the authority of the executant sign or affix his mark on the instrument. If there are many attesting witnesses it is not necessary that they should attest at the same time.
It is necessary that each witness must attest in the presence of the executant. Further, an attesting witness need not witness the actual execution of the deed, in as much as he can attest on the acknowledgement of execution by the executant himself.
A party to the transaction cannot himself be an attesting witness. Even if there are many transferors and transferees, neither of them can be attesting witness because attestation by a party to the transaction becomes invalid attestation. But a person who is only interested in the transaction but not a party to it can be an attesting witness.
If a document is not validly attested, it cannot be enforced in court of law. Invalid attestation makes the documents invalid.
It is not necessary to get attested each and every document. But transfer of immovable property requires attestation. No particular form of attestation is prescribed by the Act.
Attesting witness may put his signature anywhere on the deed. If the witness is illiterate he may put his thumb impression on the deed. It is necessary that the attesting witness must sign the deed after the executant has executed it.
Notice
Notice means information or knowledge of a fact. When a person has knowledge about a fact or under the existing circumstances it can be proved that he must have knowledge about a fact, it is said that he has notice of that fact.
Notice may be of two types:—
(1) Actual or express notice, and
(2) Constructive or implied notice.
Actual Notice
‘Actual notice’ means actual knowledge, where it can be shown that a person actually knew about it. It is definite information given to, or obtained by a person, as against vague rumours, statements, or casual comments given by strangers.
For instance, a person attesting to the execution of a deed cannot say that he did not know that the deed was being executed.
The knowledge or notice must be definite. As mentioned, it should not be hearsay or rumours and should be of such a nature that it would be expected that a normal man would take it seriously.
Only the knowledge of the parties interested in the transaction is actual notice regarding the transaction, and knowledge of strangers to the transaction is no notice of the transaction.
Knowledge must be in relation to the transfer in question, and not general or irrelevant to the transaction.
Constructive Notice
‘Constructive notice’ means knowledge that the court imputes on a person. A person may claim that he did not know a fact, but if the circumstances surrounding him are such, that as a reasonable prudent person, he ought to have known a fact, he will be deemed to know it.
It is pertinent to note that the consequences of actual or constructive notice are identical.
Constructive notices can be applied by the court in five cases:
(i) When there is a willful abstention from making an inquiry;
(ii) Gross negligence;
(iii) Registration of the document/transaction;
(iv) Actual possession; and
(v) Notice to agent.
Thus, a person is said to have notice of the fact when he actually knows the fact, or, when but for the wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Wilful abstention from enquiry or search.
Wilful abstention from enquiry or search
shows want of bona fide.
Here the person wilfully or intentionally refrains from making any enquiry or search because probably he intends to avoid the probable consequences of the act which he might have come to know.
When a person refuses to take a registered letter addressed to him, he cannot afterwards plead ignorance of the contents of the letter.
Gross Negligence.
Gross negligence does not mean mere carelessness but means carelessness of so aggravated a nature as to indicate an attitude of mental indifference to obvious risks.
Negligence may be stated to be the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.
