INTRODUCTION

The term ‘transfer’ means a contract plus conveyance. It is a process or an act by

which something is made over to another.

Under Transfer of Property Act, 1882 Section 5 defines ‘Transfer of Property’.

According to this section, transfer of property means an act by which a living person
conveys the property in present or in future:

1. To one or more other living persons, or

2. To himself, or

3. To himself or one or more other living persons, and to transfer such property is to
perform such act.

The word “property” has not been defined in the Act, but it has a very wide meaning
and includes properties of all descriptions. It includes movable properties such as
case, books, etc., and includes immovable properties also such as lands or houses.
It also includes intangible properties such as ownership, tenancy, copyrights, etc.

The word ‘transfer’ has also very wide meaning. It may be either transfer of all the
right and interests in the property or transfer of one or more of subordinate right in
the property.

Kinds of Transfer

The Act contemplates the following kinds of transfers: (1) Sale, (2) Mortgage, (3)
Lease (4) Exchange, and (5) Gift. Sale is an out-and-out transfer of property. In
mortgage, there is a transfer of limited interest in property. A lease is a transfer of a
right to enjoy immovable property for a certain time or in perpetuity. Exchange is like
a sale, but differs from it as regards the consideration. In sale, the consideration is
money, while in exchange, the consideration is another thing. In a gift, there is no
consideration.

In Harish Chandra v. Chandra Shekhar, AIR 1977 All 44, it was held that a release-
deed is a conveyance, hence a transfer of property. If the release deed states that
the releaser was the owner and it shows an intention to transfer his title and its
operative word sufficiently was the conveyed the title it would amount to transfer.
Section 3. Interpretation clause.—

In this Act, unless there is something repugnant in the subject or context,—

“immoveable property” does not include standing timber, growing crops or grass;
‘‘instrument” means a non-testamentary instrument; 1[“attested”, in relation to an
instrument, means and shall be deemed always to have meant attested by two or
more witnesses each of whom has seen the executant sign or affix his mark to the
instrument, or has seen some other person sign the instrument in the presence and
by the direction of the executant, or has received from the executant a personal
acknowledgement of his signature or mark, or of the signature of such other person,
and each of whom has signed the instrument in the presence of the executant; but it
shall not be necessary that more than one of such witnesses shall have been
present at the same time, and no particular form of attestation shall be necessary;]
“registered” means registered in 2[3[any part of the territories] to which this Act
extends] under the law4 for the time being in force regulating the registration of
documents;

“attached to the earth” means—

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to
which it is attached;

5[“actionable claim” means a claim to any debt, other than a debt secured by
mortgage of immoveable property or by hypothecation or pledge of moveable
property, or to any beneficial interest in moveable property not in the possession,
either actual or constructive, of the claimant, which the Civil Courts recognise as
affording grounds for relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent;]

[“a person is said to have notice” of a fact when he actually knows that fact, or when,
but for willful abstention from an enquiry or search which he ought to have made, or
gross negligence, he would have known it.
Explanation I.—Where any transaction relating to immoveable property is required
by law to be and has been effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in, such property shall be deemed to
have notice of such instrument as from the date of registration or, where the property
is not all situated in one sub-district, or where the registered instrument has been
registered under sub-section (2) of section 30 of the Indian Registration Act, 1908
(16 of 1908), from the earliest date on which any memorandum of such registered
instrument has been filed by any Sub-Registrar within whose sub-district any part of
the property which is being acquired, or of the property wherein a share or interest is
being acquired, is situated:]

Provided that—

(1) the instrument has been registered and its registration completed in the manner
prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made
there under,

(2) the instrument or memorandum has been duly entered or filed, as the case may
be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have
been correctly entered in the indexes kept under section 55 of that Act.

Explanation II.—Any person acquiring any immovable property or any share or

interest in any such property shall be deemed to have notice of the title, if any, of any
person who is for the time being in actual possession thereof.

Explanation III.—A person shall be deemed to have had notice of any fact if his
agent acquires notice thereof whilst acting on his behalf in the course of business to
which that fact is material:

Provided that, if the agent fraudulently conceals the fact, the principal shall not be
charged with notice thereof as against any person who was a party to or otherwise
cognizant of the fraud

Constructive notice of the suit agreement

Murlidhar Bapuji Valve v. Yallappa Lalu Chaugle, AIR 1994 Bom 358.
The defendants failed to make necessary inquiry in respect of possession of the suit
land by going to the site or from neighboring land owners. Therefore, it has been
held that constructive notice of the suit agreement shall have to be imputed to
defendants in view of actual possession of the suit land being with the plaintiffs;

Meaning of word "Immovable"

Shree Are Steel P. Ltd. v. Bharat Overseas Bank Ltd., AIR 2005 Kant 287.

The word "immovable" means permanent, fixed, not liable to be removed and the
property must be attached to immovable property permanently;

Movable/Immovable Property ( Sec 3 )

Concept of property

The term ‘property’ has not been defined in the Act. When Section 6 of the Act says
‘property of any kind’ it implies every possible interest or right that can be possessed
and is a subject of ownership. It can be tangible or intangible. It can be a physical
object or something abstract. Property of different kinds is dealt with differently. The
movable property is dealt with under the Sales of Goods Act, 1930 while the major
chunk of the Transfer of Property Act, 1882 deals with immovable property. Section
3 of the Transfer of the Property Act, 1882 is called the Interpretation clause for it
explains the following terms.

Movable and Immovable property definitions

DEFINITION OF IMMOVABLE PROPERTY

Immovable property is a species of property. Whenever we speak about immovable

property, we always use the ready reference of ‘attached to the earth’. Whether a
thing is permanently attached to the earth, whether it is capable of separation or not
and what is the intention behind the construction or promoted growth of the property
are a few of the points that need to be looked into.

The definition of immovable property as per the Transfer of Property Act is a

negative definition. The Section 3 reads that “immovable property” does not include
standing timber, growing crops or grass”. Standing timber refers to trees that are fit
for usage in building or repairs. Growing crop includes all such vegetables, etc that
are solely grown only for their produce. Grass is referred to as fodder.

Section 3(26) of the GENERAL CLAUSES ACT, 1897 is not an exhaustive definition.
It says that “Immovable property shall include land, benefits arising out of land and
things attached to the earth, or permanently fastened to anything attached to the
earth.” It specifies the following as immovable property.

a) LAND. It encompasses the upper as well as the lower surface of the earth. Any
interest in the same will be treated as that of immovable property. It would include
wells, streams etc.

b) BENEFITS ARISING OUT OF LAND. This category includes everything dealing

with rights and interests in land as defined above. Right to collect rent or zamindari
rights are two examples.

c) THINGS ATTACHED TO EARTH. The nature of attachment is important.

This clause is explained with reference to the following three points:

a) Things rooted in the earth like trees, shrubs but not including standing timber,
growing crops and grass. Jamuna trees are treated as immovable properties.

b) Things embedded in the earth like buildings, minerals etc. By ‘embedded’ we refer
to things that have their foundations laid well below the surface of the earth. An
anchor of a ship is not immovable property in its normal usage.

c) Things that have been permanently fastened to anything embedded in the earth
for the purpose of permanent enjoyment. For example, ceiling fans, doors and
windows. If the objects that have been attached are merely transitory or not
permanent and do not contribute to the value and purpose of the thing attached to,
they are not immovable properties.

To determine whether a fixture is permanent or not, the following points need to be

considered:

a) Mode of Annexation: Temporary, standing on its own weight or dug in to the earth,
etc.
b) Purpose or Object of Annexation:

Trade fixtures are to be treated in association with the business and not the land as
the fixtures are attached in connection with the business. Such fixtures are to be
treated as accessory to the business and not as annexation. The position is different
if the person attaching the fixtures in a business place is the owner himself.

When it is a machinery in the factory, the court has to see the object and purpose of
such installation. The beneficial enjoyment of the machinery itself, the degree and
the manner of attachment or annexation on to the earth are other points for
consideration.

The Section 2(9) of the INDIAN REGISTRATION ACT, 1908 gives out the physical
aspects of property in the definition present in the said Act. The definition under the
Act is as follows, “Immovable Property includes land, buildings, hereditary
allowances, rights of ways, lights, ferries, fisheries or any other benefit arising out of
land and things attached to the earth but not standing timber, standing crops or
grass.”

Movable and Immovable property differences

MOVABLE PROPERTY  

It can be transferred from one place to another.

Registration is optional as per the Indian Registration Act, 1908.

The Sales and Central Sales taxes are applied,

IMMOVABLE PROPERTY

It cannot be transferred without causing extensive damage to the property. The

damage relates to the nature of the property Registration is compulsory under the
Indian Registration Act, 1908 if the value of the property is more than Rs. 100.The
property needs to be registered at the Sub-Registrar’s office.The appropriate stamp
duty and the registration fee have to be paid.

WHAT IS INCLUDED IN IMMOVABLE PROPERTY     WHAT IS NOT INCLUDED

IN IMMOVABLE PROPERTY
What is included

1) A right to collect rent from an immovable property;

2) A right to receive future rents and profits of land;

3) A tenancy right;

4) Coal mines;

5) A borewell that has been fastened in a permanent way to the earth;

6) Hereditary Offices; and

7) Right to use water of a perennial stream.     

What is not included

1) A right to worship;

2) A copyright;

3) The interest of a partner in a partnership firm;

4) A right to get maintenance;

5) A right to obtain the specific performance of an agreement to sell;

6) Government promissory notes; and

7) A machinery that is not permanently attached to the earth and can be shifted from
one place to another.

Meaning of "things attached to earth"

Concept of "Doctrine of fixtures"

A fixture is something fixed. In Transfer of Property Act, a fixture is a chattel which is

affixed to the soil or land. But a chattel by merely being affixed to the land will not
become an immovable property. There are two things which has to be considered for
arriving at the point whether a chattel is an immovable property. This can be called
the doctrine of fixtures.
(1) Mode of annexation

If the chattel remains on the land by its own weight and is not affixed to the land
there is a presumption that it is only a movable property. Here the criteria is the
intention to make whether it a fixture or not. If the intention was to make it part of the
land it is treated as a fixture.

If the chattel is fixed to the land by means of nails or such things the presumption is
that it is a fixture and become an immovable property.

(2) The Purpose for Annexing

The tenure of beneficial enjoyment of the land is a necessary criterion to hold

whether the chattel is an immovable property. If the purpose of annexation is the
permanent beneficial enjoyment of the land the presumption is that it is a fixture.
Shanthabai v State of Bombay, AIR 1958 SC 532: (1959) SCR 265

[ A right to enter upon the land of another & carry a part of the produce is an instance
of profits a pendre i.e. benefit arising out of land, & therefore a grant in immovable
property.]
Facts n Issue:-

Lease doc - 12n a 1/2 yrs executed by a Zamindar in the favor of his wife. 'right to
cut & appropriate wood from the Zamindar's forest(estate for a consideration of Rs
26,000. A right was conferred upon her to cut & take bamboo, fuel wood & teak but
there was prohibition for cutting teak plants under the height of one and a half feet -
the moment the teak trees reaches that girth they cud be felled but within 12 years -
when the MP abolition of proprietary rights (estate, Mahals, alienated lands) Act,
1950 was passed, all proprietary rights in the land became vested in the State & she
was stopped for cutting any more trees. She filed a petition in the court contending
that as the right granted to her was a right in standing timber (movable property), she
was entitled to compensation. - Issue was whether it is transfer of movable or
immovable property. Trees are regarded as immovable property because it is benefit
that arises out of the land & also because they are attached to the earth. But
standing timber is movable property
Observation & Decision - exclusion of TP Act is only for standing timber & not of
timber trees - standing timber must be a tree that is in a state fit for use for building
or industrial purposes, & looked upon as a timber even though it is still standing. If
not, it is still a tree because unlike timber, it will continue to draw sustenance from
the soil. But the amount of nourishment it takes, if felled at a reasonably early date, it
is so negligible & to be ignored. - Present case duration of the grant is 12 yrs, it is
evident that trees that will be fit for cutting 12 yrs hence will not be fit for felling new.
therefore it is not a mere sale of the trees as wood. it is more. it is not just a wish to
cut a tree but also to derive a profit from the soil itself, in the shape of the
nourishment in the soil that goes into the tree & makes it grow till it is of a size & age
fit for felling as timber & if already of that size, in order to enable it to continue to live
till the petitioner choose to fell it. - grant was not only for standing timber but also for
trees that were to fell gradually as they grow to attain regarded height ( & these trees
r immovable property ) . Moreover in case of standing timber, it is left to petitioner's
choice to fell them - that means they are not to be converted into timber at a
reasonably early date & that the intention is that they should continue to live, in other
words, they are to be regarded as trees & not as timber that is standing & is about to
be cut & used for purposes for which timber is meant. It is clear because the right
was spread for a period of 12 yrs & the intent was not to cut the trees at a
reasonably early time period - therefore lease doc is not a transfer of trees as
wood(movable) but a transfer of benefit arising out of immovable property - right to
fell trees for a term of years, so that the transferee derives a benefit from further
growth of trees. 

St of Orissa v Titaghur Paper Mills Company Ltd, AIR 1985 SC 1293: (1985) Supp
SCC 280

[ The contract should be examined as a whole with reference to all its terms & all the
rights conferred by it & not with reference to only a few terms or with just one of the
rights flowing there from - 'bamboo contract' (right to cut & remove bamboos with
several ancillary rights) is related to immovable property as a benefit to arise out of
land & did not relate to a contract of movable property. ]
Facts n Issue - In this case a contract of the petitioner company with State of Orissa
for the purpose of felling, cutting & removing bamboos from forest areas for the
purpose of converting the bamboos in paper pulp, or for the purposes connected
with the manufacture of paper, etc have been held to be profit a pendre or benefits
arising from land, & thus an immovable property.Court overruled in St of MP v
Orient paper mills
Other cases which court relied on:-

Ananda Behera vs St of Orissa - right to fish - right in immovable property

Bamdev Panigrahi vs Monorama Raj, AIR 1974 AP 226

[ Cinema equipments like projector, diesel engine etc, installed on the tenanted land
temporarily, and not attached to the earth, but also not permanently fastened to
anything to the earth, are movable properties. ] touring talkie installed on land - not
attached to earth but was on a temporary shed on the land - name 'touring talkies
shows that aim & intent of installation was for temporary period

Duncan Industries Lts V State of Uttar pradesh (2001) 1 SCC 633

Whether a machinery embedded in the earth can be treated as moveable or

immovable property depends on the intention of the parties which embedded the
machinery & also the intention of the parties who intend alienating that machinery]
Transfer of fertilizer plant - machinery transferred as movable property - escaped
stamp duty – HC observed & SC confirmed that machinery relating to manufacture of
fertilizer in a sale of fertilizer plant is immovable property

Analysis of Section 5 of Transfer of property, 1882

· Transfer of ‘inter vivos’ alone are included as transfer from living person/s to living
person/s.

· Transfer can be present or future but transferor must be living person. Shamsuddin
vs Abdul Hussain. ( Exception : Section 13 Transfer to an unborn Person)

· Living person include juristic persons like company and other like associations of
individuals whether registered or not.

· Other laws governing transfer are not affected by TPA.

· There must be an ‘act of conveyance’. Property must be handed over to the other
person. This can be expressed or implied.

· Act not exhaustive of all kinds of transfers. It deals with sale, gift, mortgage, lease
and exchange.

Essentials of A Valid Transfer

1. Transfer must be between two or more living Persons (Section.5)

The Transfer must be inter vivos. Therefore there cannot be a transfer to person not
in existence at the time of transfer. The living person including company or
Association or body of individuals whether incorporated or not.

2. The property must be transferable (Section. 6)

Property of any kind of may be transferred, accepts as otherwise mentioned in S.6

(a) to (I) cannot be transferred. Therefore those properties described in the clauses
(a) to (I) of Section.6 cannot be transferred. These are restrictions on the Transfer of
Property and any transfer in contravention of any of the clauses given in Section 6(a)
to (I) is null and void.

3. Persons competent to transfer (Section.7)

Every person is competent to contract and entitle to transferable property, or

authorized to dispose of Transferable property not his own, is competent to transfer
such a property either wholly or in part, and either absolutely or conditionally, in the
circumstances to the extent and in the manner, allowed and prescribed by any law
for the time being in force.

4. The Transfer must be made in the mode prescribed by the Act, under section 9

Section 9 of Transfer of property provides that for oral transfer, A Transfer of

Property may be made without writing in every case in which a writing is not
expressly required by law.

5. The consideration or object of the transfer must be lawful.

No transfer can be made for an unlawful object or consideration as provided in

Section 23 of the Indian Contract Act, 1872.
6. The transfer must not be opposed to the nature of the interest effected thereby.
If the nature of property to be transferred does not admit of such transfer, it cannot
be transferred. (Section 6(h)

Persons Competent To Transfer (Section 7)

Competency to contract has been defined under section 11 of the Indian Contract
Act, 1872.

Section 11 says that every person is competent to contract-

a) Who is of the age of majority according to the law to which he is subject,

b) Who is of sound mind, and

c) Is not disqualified from contracting by any law to which he is subject.

Age of Majority

Generally the age of majority is 18 except when a guardian of minor’s person or

property has been appointed by the court in which case it is 21. The age of majority
is to be determined according to the law to which a person is subject.

Mallikarjuna vs. Mareppa, AIR 2008 a person purchased certain property in the
name of his minor son and subsequently resold it while the son was still minor. Court
permission was necessary under section 8 of the Hindu Minority and Guardianship
Act, 1956 but no such permission was taken. The provision being mandatory the
sale was held to be void.

Minor as a transferor: a minor’s contract is void. Raja Balwant Singh vs Rao Maharaj
Singh a transfer of property by a minor is void.

Minor as a transferee: there is no specific provision of law incapacitating a minor

from holding property under a transfer in his favour.

Sound mind

Under section 12 of the Indian Contract Act, a person is of sound mind of the
purpose of making contract if he is capable of understandings it and of forming a
rational judgment as to its effect upon his interest. A contract made by a person of
unsound mind is void.

A person who is usually of unsound mind but occasionally of sound mind may make
contract when he is of sound mind.

Disqualified person

An insolvent and alien enemy is disqualified from contracting. A transfer by a defacto

Guardian of minor’s property is invalid and will be hit by section 11 of Hindu minority
and guardianship Act, 1956. Johri vs Mahila Darupati, AIR 1991.

Persons authorized to dispose of property not his own

If the transferor has no title to the property, he must have authority to transfer it. For
e.g. an agent acting under power of attorney.

Chittu Singh vs Chatan Singh, 1923 a person who has no right at all to have
possession cannot make any valid transfer. Also, the power of such person cannot
exceed the power of the person who has so appointed him.

What May Be Transferred (Section 6)

The transferability of property if the general rule and non-transferability is an

exception. Transferability of property is based on the maxim alienation rei prae fertur
juri accrescendi which means to say that alienation is favoured by the law rather than
accumulation. The general policy of law is to promote free alienation and circulation
of property rather than accumulation.

Section 6 of the transfer of property act, 1882 says that property may be transferred
excepting the exceptions given in this section. This section consists of exception in
clause (a) to (i), it is Exceptions: - section 6 says that the property of any kind may
be transferred, except as otherwise provided by the act or by any law for the time
being in force. These exceptions are discussed below:

Kansing Kalusing Thakore vs. Rabari Maganbhai Vashrambhai (2006) Transfer of

the property can be prohibited only by provisions of law and not by a judgement or
direction. Restriction contained in a tenancy legislation can be waived by the
competent authority.
Clause (a): Spes successions Spes Succession means exception of succession, it is
a possibility of getting property in future through succession. Under this clause, spes
succession include:-

(a) Chance of an heir apparent succeeding the an estate,

(b) Chance of a relation obtaining a legacy on the death of a kinsman, or

(c) Any other mere possibility of a like nature.

This clause says that spes succession is not transferable.

(a) Chances of an Heir Apparent

Heir apparent is not a legal heir but apparently an heir. Heir apparent is that person
who would be the heir if he survived the propositus and if the propositus dies
intestate. Propositus is a deceased person whose property the heir-apparent is going
to inherit. When the propositus dies intestate, i.e. without making any will, the heir
will inherit the property.

(b) Legacy

Clause (a) provides that the chance of a relation obtaining a legacy on the death of a
Kinsman is not transferable =. Legacy means expectancy of getting certain property
under a will. A will becomes operative only after the death of the testator, i.e, the
person who has made the will. Legatee under the last will only will get the legacy.
Expectancy to receive legacy is uncertain because the legatee may or may not
survive the testation and the testator may have changed the name of the legatee in
his last will. Therefore, the chance of a legacy has been made non-transferable.

(c) Any other possibility of a like nature

Clause (a) excludes any other possibility of s like nature from the purview of
transferability. If there is any other possibility property or interest which is as
uncertain as specs succession or legacy, that too will not be transferable. Any
property which is merely a future uncertain possible interest should not be made a
transferable property.
Where an heir apparent received advantage for giving up his future right of property,
it eas held that he could not be allowed benefit of the doctrine of spes successions.
He became estopped from claiming share in the inheritance.

Clause (b): Right to Re-entry

Clause (b) constitutes second exception to the general rule of transferability. It says
that a mere right of re-entry for breach of a condition subsequent cannot be
transferred to anyone except the owner of the property affected thereby. This is the
right which a lessor keeps reserved for himself after parting with the whole estate.

Clause (c): Right to Easement

An easement cannot be transferred apart from the dominant heritage, easement is a

right which exists for beneficial enjoyment of a land and is exercised upon the land of
another person. Easement is an incident of ownership, it is a right attached with the
property and has no independent existence. Hence it cannot be transferred.

Clause (d): Restricted Interest

It says that an interest in property restricted in its enjoyment to the owner personally
cannot be transferred by him. This means that a person’s right or interest which is
only for his enjoyment cannot be transferred by him.

R. Rajegowda vs. H.R Shankere Gowda, Air (2006)

A person having life interest in property cannot bequeath it by executing a Will; a

document evidence partition between father and son under which an interest in the
property was allotted to the father for his maintenance, an absolute right of alienation
was not given , hence, no right to bequeath by making will.

K. Balakrishna vs. K. Kamalam, Air 2004

The restriction on transferability contained in the clause are not applicable to a will,
because it is not equivalent to transfer.

Clause (dd): Right to Future Maintenance

It is for the personal benefit of the person to whom it is granted, therefore, it cannot
be transferred. This right to future maintenance may have been secured by a charge
on the property or its income, or in any other manner. Although the right of
maintenance is not transferable, the arrears of maintenance can be transferred. The
right of maintenance is a personal right of a Hindu widow which is incapable of
assignment but arrears of maintenance can be attached and sold like any other debt.

Clause (e): Right to Sue

A mere right to sue cannot be transferred. Right to sue for a definite sum of money is
an actionable claim and can be transferred but right to sue for indefinite sum of
money is not transferable. Right of action for damages in tort or breach of contract
are bare rights to sue, and therefore, cannot be transferred.

Clause (f): Public office

This clause provides that a public office cannot be transferred, nor the salary of a
public office, whether before or after it has become payable. These interests are
made non-transferable to ensure the dignity of the office held by him and proper
performance of his duties.

Clause (g): Stipends and Pensions

It provides that the stipends allowed to military, naval, air-force, and civil pensioners
of the government and political pensions cannot be transferred, a will can be
executed only in respect of an estate.

Sundariya Bai Chaudhary vs. Union of India, Air 2008

The family pension of the deceased was not in the nature of an estate and it being
not transferable could not be bequeathed by a will. The court added that other
benefits like provident funds, gratuity and other retrial dues and extra-remunerations
would be in the category of an estate.

Clause (h): Nature of Interest, Unlawful Object, Disqualification of transferee

(i) In so far as it is opposed is the nature of the interest affected thereby; or

(ii) For an unlawful object or consideration within the meaning of section 23 of the
Indian Contract Act,1872 ; or
(iii) To a person legally disqualified to be transferee

Section 8. Operation of Transfer

Section 8 dealing with effects of transfer provides that unless a different intention is
present a transfer of property passes all the interests which the transferor is then
capable of passing in the property and its legal incidents to the transferee.

Bishwanath Prasad Singh vs. Rajendra Singh, Air 2006

The object of this section is to clearly define what are the legal incidents of each
particular class of property which pass along with the property when it is transferred.
Section 8 states on the transfer of property not only all the interest of the transferor in
the property passes to the transferee but also his interest in the legal incidents of the
property.

A) Land

Where property to be transferred is land its legal incidents will include:

(i) Easement attached to it

(ii) Rent & Profit occurring after the Transfer

(iii) All the things attached to the earth

B) Machinery

All the movable and immovable parts of the machinery essential for using it are to be
transferred.

C) Home/House

Legal incidents of a house includes:

(i) An easement annexed with it

(ii) Rent & Profits Occurring After the transfer

(i) Locks, keys, widows & all the other things provided with it for permanent use.

D) Debt
Where the property to be transferred is a debt or other actionable Claim, those
securities will be with that particular debt transferred to the transferee.

E) Money

Where the property to be transferred is money or other property yielding money its
legal incidents will include its income and interests occurring after the transfer.
The general rule regarding transfer is that the transferor conveyed all that he was
possessed of in the property transferred. A person cannot transfer something to
another by doing acts which he himself is not entitled to do. A transferee cannot
have a better title than what the transferor himself had in the thing transferred. If the
transferor has held the property with certain limitations, the transferee would get it
too with those limitations and not without them.

Ram Gopal vs. Nand Lal, 1950

The Supreme Court held that having regard to section 8 of the Transfer of Property
Act, a transfer passes the entire estate of the transferor when no restriction is
indicated by the deed and in Hindi law, there are texts requiring a gift to a female to
be constructed only as a limited gift.

Nathu Lal vs. Durga Prasad, AIR 1954

A women obtained property under the will of her father. On her death, the plaintiff,
who was her sister’s son, claimed the property as reversioner on the ground that she
had only a limited estate. The second claimant was the woman’s husband who
claimed to succeed the property as heir to her stridhan. The High Court of Rajasthan
held that the woman had only limited estate and gave a decree to the plaintiff. The
Supreme Court reversed the decision and held that an absolute estate had passed
to the legatee. It was observed that there is no difference between the case of a
female and the case of a male and the fact that the done is a women does not make
the gift less absolute where the words are sufficient to convey an absolute estate to
a female.

According to section 8, on the transfer of a property not only all the interests of the
transferor in the property pass to the transferee but also his interests in the legal
incidents of such property. An incident is a thing necessarily depending upon or
appertaining to, or following another that is more worthy as rent to incident is a
reversion.

A) Land

Generally the transfer of land would include transfer of everything annexed to it

permanently. Therefore, the transferee would get not only the surface of the land but
also the easement annexed to it and also the minerals beneath the surface unless
there is a contrary intention. According to this section, the legal incidents of a land
include everything attached to it, rents and profits accruing after the transfer of land
and all the easement related to the land. All the houses, structure and trees standing
on the land are transferred along to the land by necessary implication.

Jai Narayan Misra vs. Hashmathunnisa Begum, AIR 2002

Where one partner contributed land and the other constructed theatre and a clause
in the partnership deed provided that the partnership will continue foe certain number
of years. The court rejected the contention that the deed was a licence to use the
land. A partnership deed usually does not have the effect.

Ram Chandra vs. Kalyan Singh, AIR 2006

Trees were planted on land in question subsequent to the agreement ,the seller
objected saying that standing trees could not be transferred in execution
proceedings, this was held to be not tenable as under section 8 that property also
passes to the transferee which is capable of passing with the land.

B) Machinery

Where machinery is attached to the earth, it is transferred along with the land
transferred. The incidents of machinery includes all the movable parts of the
machinery like nuts, bolts, etc.

C) House

Legal incidents of a house are easements like right to way, right of support,
permanent fixture like bars, windows, keys, locks, etc. which are part of the house
and provided for permanent use. Besides these, rents accruing after the date of
transfer are also transferred along with the house.

D) Debt

Where property transferred is a debt or an actionable claim, securities of it will also

pass to the transferee as legal incident of the property transferred on the basis of the
principle that every principal thing attracts accessories towards it. In this section, the
word ‘debt’ refers to only those debts which come within the general definition of
actionable claims.

Ganpat Rai vs. Sarupi, 1878

Where a money-decree is obtained for a secured debt and then transferred, the
securities will not pass with the decree and purchaser could not claim to enforce
securities.

The provision of this section are not applicable to mortgage debts because such
debts are not actionable claims. However, a charge annexed passes on to the
transferee in the assignment of a debt. A promissory note is a conditional payment of
the debt. If a mortgage holds a promissory note for a part of the debt and retains it
after transferring the mortgage, he will be restrained from suing on it pending a suit
for redemption.

Conclusion

The Transfer of Property Act 1882 is an Indian legislation which regulates the
transfer of property in India. It contains specific provisions regarding what constitutes
a transfer and the conditions attached to it. It came into force on 1 July 1882.

According to the Act, 'transfer of property' means an act by which a person conveys
the property to one or more persons, or himself and one or more other persons. The
act of transfer may be done in the present or for the future. The person may include
an individual, company or association or body of individuals, and any kind of property
may be transferred, including the transfer of immovable property.

The object of the Transfer of Property Act is to define and amend law relating to
Transfer of Property by act of parties and not to transfer by operation of law. A
Transfer of Property is a contract hence all necessary requirements to constitute
valid contract are to be fulfilled.

A property is a bundle of rights. It includes movable, immovable, tangible and

intangible assets. When a property is transferred, all the rights along with the
property are also transferred. However arrangements may be made by which some
of the rights may be transferred but not all. A transfer of future property is not valid in
India but conveyance of such property may be valid as a contract to assign. When
the property comes into existence, the equity festers upon the property and the
contract to assign becomes a complete assignment.

All the definitions read together can give us a clear idea what is included or excluded
from being an immovable property. They do not define immovable property per Se. A
clear idea can be obtained by creating a common definition by mixing these three.

Immovable Property means lands, benefits arising of the lands and the things
attached to the earth or permanently fastened to anything attached to the earth.
Other than the physical aspect, every benefit arising from and every interest in the
property is also included in the definition. It excludes three things, namely, standing
timber, growing crops and grass.

The real test if whether a property is immovable or immovable is the intention behind
the transfer and the transferability of the property. For example, generally a mango
tree will be treated as an immovable property but it will be treated as movable
property if it is to be cut and used to build a house.