Untitled 1
1. Sale
Sale is transferring of property by a sellor too the buyer at a price. there is absolute transfer of all rights in the property sold. the seller must be competent to transfer the property.
2. Relevant provisions:
Sec. 55 transfer of property act.
3. Definition of sale:
“Sale is a transfer of ownership is exchange for a price paid or promised or part paid and part promised.”
4. Sale how made:
Modes
In case of Tangible property
A sale of tangible immovable property such as house building can be made.
(a) By a registered instrument if its value is Rs. 100/= or upwards.
(b) By the delivery of the property if its value is less than 100/=
In case of intangible property
A sale of intangible immoveable property such as mortgage deed or any other right can be made by a registered instrument.
5. Contract of sale:
A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. it does not itself create any interest in our charge on such property.
Case law
1996 CLC 1758.
It was held agreement to sell does not create any right, title or interest in immoveable property in question.
6. Essentials of sale:
I. Parties:
The sellor and buyer are parties of sale.
II. Subject matter:
The subject matter of a sale is immovable property.
III. Consideration:
Price is the consideration of the sale which is settled between the parties.
IV. Transfer:
The sale does not become complete unless the sellor actually does an act having an effect in law transferring the rights of sellor in the property to the buyer.
Conclusion:
To conclude I can say that sale is transfer of property or ownership in exchange for a price paid or promised to part paid or part promised. the essentials of sale, are parties subject matter transfer and price or consideration. the sellor and buyer shall be subject to the rights and liable enumerated in transfer of property act.
registration is optional
All sorts of documents are not compulsorily registreable under the registration act there are documents on which registration is at the option of the party. the non-registration of such documents does not effect the validity or admissibility in the evidence.
2. Relevant provisions:
Sec. 17, 18 the registration act.
3. Documents of which registration is optional:
According to Sec. 18
“Any document not required to be registered under Sec. 17 also be registered under act.”
4. Instances of documents:
Following are instances of document of which registration optional.
(i) Will:
Will are not be compulsorily registreable.
(ii) Power of attorney:
Power of attorney need not be registered. however it can be registered at the option of the party.
(iii) Agreement to sell:
1989 CLC 1318
Agreement to sell does not need to be registered under the registration act.
(iv) Agreement for partition:
Agreement for partition does not need to be registered.
(v) Instrument creating tenancy for a year or less:
Instrument creating tenancy for a year or less than one year need not to be registered.
(vi) Promissory note:
Promissory note are not compulsorily registreable. however a promissory note may be registered at the option of the party.
(vii) Agreement of mortgage:
Agreement of mortgage may be registered at the option of the party.
(viii) Deed of adoption:
A deed of adoption may be registered at the option of the party.
(ix) Contracts and bounds:
Simple contracts and bounds may be registered under the registration act.
(x) Releases:
A release is not compulsorily registreable. it may be registered at the option of the party.
5. Scope:
Sec. 18 explains that all those document other than those required to be registered under Sec. 17 are optionally registreable under this present act.
6. Conclusion:
To conclude I can say that, under the registration is optional at the party if such documents are not registered it does not loose its value.
Registration compulsory
All sorts of documents are not compulsorily registrable in the registration act there are documents which require registration. documents required under the registration act to be registered loose evidentiary value and shall not be admitted in evidence if they are not so registered.
2. Relevant provisions:
Sec. 17 registration act.
3. Documents of which registration is compulsory:
Following are document of which registration is compulsory.
(i) Instrument of gift:
Instruments of gift of immoveable property are compulsory registrable under the registration act.
(ii) Non-testamentary instrument:
Other non-testamentary instruments which purport of operate to creat, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immoveable property.
Non-testamentary instrument:
Every document which is not a will or codicil is called non-testamentary instruments.
(iii) Instrument relating to receipts:
Non-testamentary instruments (other than the acknowledgement of a receipt or payment made in respect of any transaction to which an instrument registered under clause (a) relates which acknowledged of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, tile or interest.
(iv) Lease deed:
Lease of immoveable property from year to year or any term exceeding one year or reserving a rent.
(v) Instrument relating to decree and order:
Non-testamentary instruments transferring or assigning any award when such decree or order or award purports or operates to create declare, assign, limit, or extinguish whether in present or in future, any right title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.
4. Other registrable documents:
Following are the documents which should also be registered.
(i) Mortgage deed.
(ii) Dower deed
(iii) Debenture.
(iv) Adoption deed.
(v) Instrument of lease.
(vi) Compromise deed.
(vii) Sale certificates.
(viii) Sale deeds
5. Scope:
Sec. 17 enumerates the documents which are comulsorily registerable. the effect of not registering a document compulsorily registerable is that it can not effect any immoveable property.
6. Document executed in foreign state:
Document executed in foreign state which is compulsorily registerable according to the law of state and which is not so registered is not admissible evidence.
7. Conclusion:
To conclude I can say that document requiring registration under Sec. 17 of the registration act must be registered. this section establishes the necessity for registration with regard to certain classes of documents.
1. Fraudulent transfer
A transfer made with intention to defeat any right of the transferee or of any other person interested therein is fraudulent transfer of property. such transfer is not void but voidable at the option of person named.
2. Relevant provisions:
Sec. 53 transfer of property act.
Cross reference Sec. 17 of contract act.
3. Fraudulent transfer:
According to Sec. 53
Every transfer of immoveable property made with intent to defeat the creditors of the transferor shall be voidable at the option of any creditors so defeated or delayed. nothing in this section shall impair the rights of a transfer in good faith and consideration. noting in this sub-section shall effect any law for the time being in force relating to insolvency a suit instituted by a creditor (which term included a decree holder whether he has or has not applied for execution of decree to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of or for the benefit of all the creditors. every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. for the purpose of this sub-section no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.
5. Determination of fraudulent intention:
Fraudulent intention may be determined by the following evidence.
(a) That the debtor made a voluntary settlement.
(b) That the debtor a grossly inadquate consideration without reserving sufficient property for the payment of his debt.
(c) That he put all his property out of reach of those who might become his creditors before embarking on a hazardous enterprise or.
(d) That the transfer is in embarrassed circumstances and the transaction is between relation.
(e) That the transfer was a mere cloak for retaining a benefit for the transferor.
6. Essentials of fraudulent transfer:
(i) Transfer with intent to commit fraud.
(ii) Fraud is intended against.
(a) Either to defeat or delay the creditors.
(b) To defraud subsequent transferees.
(iii) Suit by creditors must be representative in nature.
7. How transfer may be avoided:
Fraudulent transfer may be avoided by following ways.
(i) By filing a suit to setaside the fraudulent transfer.
(ii) By pleading S. 53 in defence.
(iii) By pleading S. 53 in execution proceeding.
(iv) Avoiding by conduct.
8. Conclusion:
To conclude I can say that fraudulent transfer is voidable at the option of creditor or transferee but bonafied transfees for consideration without knowledge of the option is exception to this rule.
1. OStensible owner
If transfer of property is made by ostensible owner, such transfer is not void. ostensible owner is not real owner, but the real owner of the property permit him to hold himself out as a real owner. reasonable care must be taken by ostensible owner.
2. Relevant provisions:
Sec. 41. transfer of property act.
3. Meaning of ostensible owner:
According to black law dictionary:
:Ostensible owner: is the “apparent owner”.
4. General rule:
General rule regarding the transfer of property is that on one can transfer a better title than what he himself possess.
5. Exception to general pule:
According to sec. 41
“Where with the consent, express or implied of the person interested in immoveable property a person is the ostensible owner of such property and transfer the same for the consideration the transfer shall not be void on the ground that the transferor was not authorized to make it. provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer has acted in good faith.”
6. Essential conditions for the applicability:
(i) Ostensible owner:
The transfer must be made by ostensible owner.
(ii) Immoveable property:
The property must be immoveable.
(iii) Consent:
The real owner should have given consent to the apparent authority.
Form of consent
Following are the two forms of consent.
(i) Express consent
(ii) Implied consent
(iv) Transfer for consideration:
The transfer by ostensible owner must be for some value or consideration.
(v) Can not be avoided by real owner:
Once the transfer is made by the real owner it can not be avoided by the real owner.
(vi) Reasonable care must have been taken by transferee:
The transferee must have taken reasonable care to ascertain the true authority of the transferor.
(vii) Good faith:
The transferee must have acted in god faith.
7.Burden of Proof:
The burden of proof in the first instance is on the transferee to show that he acted in good faith and has taken reasonable care. secondly the burden of proof is on the real owner.
8. Rule of evidence
Sec. 41 of T.PA. provides a rule of evidence against the real owner that once the consent is given by his, he will not be allowed to restrain the transfer.
9. Application of law of estoppels:
Sec. 41 based upon equitable doctrine of estoppel operating between true owner and the transferee. as a matter of fact sec. 41 is a statutory application of the law of estoppel.
10. Basis:
Sec 41 based upon the equitable doctrine of estoppels.
1. transfer of property
Under transfer of property act every person is competent to contract, authorized to dispose transferable property or is entitled to transferable property. transfer of property act deals with the transfer of moveable property. generally transfer of property is made by the owner of property.
2. Relevant provisions:
Sec. 5, 8 transfer property act.
3. Definition of transfer of property:
According to sec. 5 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 and one more other living person and :to transfer property: is to perform such act.
4. Essentials of valid transfer:
I. Competency of transferor:
Transferor should be competent to transfer the property.
(i) Major
(ii) Sound minded
(iii) Not disqualified by law
II. Competency of transferee:
The transferee must be capable of holding property and must not be a person disqualified by law to receive a transfer.
III. Transfer must be between living person:
It is necessary that transfer must be made by one living person to another living person.
IV. Existence of property:
For a valid transfer the property must be in existence at the time of transfer.
V. Lawful object:
The object of transfer of property must be lawful.
VI. Lawful consideration:
The consideration must also be lawful. law does not recognize a transfer made for an unlawful consideration.
VII. Property must be transferable:
Property must be transferable under Sec. 6 of the transfer of property act.
VIII. Identical:
Transfer and transferee must be identical.
IX. Other formalities:
(i) Attestation.
(ii) Registration etc.
X. Immoveable property:
Transfer must be concerned with immoveable property.
5. Modes of transfer of property under transfer of property act 1882:
Under transfer of property act there are six modes of transfer of property which are following.
(i) Sale
(ii) Mortgage
(iii) Lease
(iv) Exchange
(v) gift
(vi) actionable gift.
6. Effect:
Operation of transfer
In respect of operation of transfer, The Transfer of Property Act, 1882 provides that in the absence of any evidence of any contrary intention, it shall be held that the transferor intended to transfer all his interest in the property and incidental rights known as legal incidents.