TRANSFER OF PROPERTY,

WHETHER MOVABLE OR
IMMOVABLE SS5-37
I. General provisions
2. Restrictions.
3. Transfer for the benefit of unborn
person.
4. Transfer to a class.
5. Vested interest.
6. Contingent interest.
7. Conditional transfer.
8. Election.
9. Apportionment.
S.5 Definition of Transfer of
Property
Transfer of Property means
an act by which a living person conveys
property, in present or in future-
(a) to one or more other living persons; or
(b) To himself; (as a trustee) or
(c) To himself and one or more other living
persons.
Here living person includes a company or
association or body of individuals. (1929).
 Conveyance means the property must
be handed over to other person.
Conveyance of property may be effected
in one of the ways i.e., by sale,
mortgage, lease, exchange or gift.
Conveyance of property to corporations,
companies, firms, etc., as they have
been created by fiction of law and are
known as juristic persons.
 Transfer in present or in future means
that the transferor may transfer the
property either with immediate effect or
to be effective from future date i.e.,
vesting of property is postponed to a
future date.
A property is having a bundle of rights.
When a property is transferred whole
rights may be transferred or rights
partially only gets transferred.
V.N.Sarin v. Ajit Kumar Poplai AIR
1966 SC 432: (1966) SCR 349
Brief Facts: The disputed property belongs
to the joint family property consisting of
Respondent 1, his brother and their father
R 2.
The appellant is the tenant in the disputed
property and the property was situated at
Civil lines, Delhi at a monthly rental of
Rs.80.
The three members of this undivided Hindu
family partitioned their coparcenary
property and the tenant property has come
to the Respondent 1.
 After got this property through partition
R1 applied to the Rent Controller for the
eviction of the appellant on the ground
that he required the premises bona fide
for his own residence and that of his
wife and children who are dependent on
him.
To this application he impleaded his
father also as R2.
Issues: The appellant contested the
claim of R1 on 3 grounds.
He urged that R1 was not his landlord.
 As he was not aware of the partition and
did not know what it contained.
(2) Even if R1 was his landlord he did
not require the premises bona fide, so
the requirements of S.14(1)(e) of the
Delhi Control Act, 1958 were not
satisfied.
(3) If R1 got the property in suit by
partition, in law it meant that he had
acquired the premises by transfer within
the meaning of S.14(6) of the Act and
the provisos of the said section make
the present suit incompetent.
 Observations: The Rent controller and
the Tribunal decided the first question in
favor of the R1 by holding that he was
the landlord of the premises.
In regard to the premises needed for
bona fide purposes, the Rent Controller
did not agree with the R1 hence his
application for eviction was failed.
But the Rent Control Tribunal came to a
different conclusion and was allowed the
application for the eviction.
 Now the bone of contention was that
whether the partition of the coparcenary
property among the coparcenars could be
said to be an acquisition by transfer u/s
14(6) of the Act.
S 14(1) of the Act provides for the
protection of the tenants against eviction.
u/s 14(1)(e) the landlord may evict the
tenant if the premises let for residential
purposes are required bona fide by the
landlord for occupation in this case this
contention was not challenged before the
SC.
 The High Court held that where property
originally belonging to an undivided
Hindu family is allotted to the share of
one of the coparceners as a result of
partition.
It cannot be said that the said property
has been acquired by such person by
transfer hence S.14(6) cannot be
invoked by the appellant.
If the appellant proves that the property
has been acquired by the R1 then he
cannot be evicted for 5 years.
 As per the appellant counsel when an
item of property belonging to the
undivided Hindu family is allotted to the
share of one of the coparceners on
partition, such allotment amounts to
transfer.
The court observed that community of
interest and possession are the
essential attributes of the coparcenary
property.
 In the partition they renounce their right
in respect of the other properties;
They get exclusive title to the properties
allotted to them and as a consequence
they renounce their undefined right in
respect of the rest of the property.
Every coparcener has an antecedent
title to the said property though its extent
is not determined until partition takes
place.
 In Girja Bed v. Sadashiv Dhundiraj the
PC held that
partition does not give coparcener a
title or create a title in him; it only
enables him to obtain what is his own in
a definite and specific form for purposes
of disposition independent of the wishes
of his former co-sharers.
The appellant counsel argued on the
grounds of S 53 and s 5 of the TPA for
the word transfer.
 His argument was about S 17(1)(b) of
the Registration Act that a deed of
partition is held to be a non-
testamentary instrument
which purports to create a right, title
or interest
in respect of the property covered by it
and for S 53 of the TPA partition is held to
be a transfer of property, then there is no
reason why the property should not be
held to be an acquisition of property by
transfer within the meaning of S.14(6) of
the Act.
 To satisfy the S.14(6) of the Act the
person should acquire the premises by
transfer and that necessarily assumes
that the title to the property which the
purchaser acquires by transfer did not
vest in him prior to such transfer.
But in the case at hand in regard to
undivided Hindu family and on partition
it falls to the share of one of the
coparceners of the famly.
 Conclusion: There is no doubt a change
of the landlord of the said premises, but
the said change is not of the same
character as the change which is
effected by transfer of premises to which
this case is contesting upon.
Here landlord is not stranger to the
property.
Therefore the appeal fails and is
dismissed with the costs.
Kenneth Solomon v. Dan Singh
Bawa AIR 1986 Del.1
Brief Facts: Dr.(Mrs.) C.L.Sury was lessee of a
property situated at Babar Road, New Delhi
under the respondent. The rent was Rs.37.82
She died in 1967.
The landlord brought an application against
the present appellant for recovery of
possession of the tenancy premises in 1968.
The eviction was claimed u/s 14(1) proviso (b)
of the Delhi Rent Control Act,1958 on the
allegations that the tenant had left no heir and
had in her lifetime parted with the possession
of the premises without the written consent of
the landlord.
 The appellant defended the claim on the
following grounds:
(1) The contractual tenancy in favor of the
deceased had not been determined.
(2) The tenancy rights devolved on him
and another person under a will.
(3) In case it was held by the court that he
could not inherit the tenancy rights
under the will the same devolved on
him as an heir being deceaseds
nearest kinsman.
 The Addl Rent Controller came to the
conclusion that the tenancy rights had not
been bequeathed by the deceased under
the will.
But inherited those rights as an heir and
therefore there was no parting with the
possession.
On the appeal the Tribunal reversed the
decision and held that the tenant had
bequeathed the tenancy rights in favor of
the appellant under the will which act
amounted to parting with possession of the
premises. Hence ordered for an eviction.
 Issues:
(1) Whether the tenancy rights disposed
under the will or not?
(2) Whether the act of bequeathing the
tenancy rights by making a will would
not amount to parting with possession
of the premises within the meaning of
the provisions contained in S.14(1)
proviso(b).
 Observations: Firstly we will examine
the will deed executed by the deceased
in its own terms
I hereby bequeath, give and devise all
my movable and immovable properties,
whatsoever, however, and wheresoever
situated at the time of my death
including all the monies which may be
left over after paying my funeral and
Monument Expenses and for my Dogs
expenses to be equally divided by my
trustees among my two nephews.
 I agree with the Tribunal that the will
does not indicate any intention of the
testator to exclude the tenancy rights.
On the other hand the residuary clause
referred to above shows that the
intention was to give all her movable
and immovable properties except the
properties for which a specific provision
was made.
The tenancy rights, therefore devolved
on the appellant under the will.
 S.14. Protection of tenant against
eviction:
Provided that the Controller may, on an
application made to him in the
prescribed manner on one or more of
the following grounds only, namely-
(b) that the tenant has sublet, assigned
or otherwise parted with the
possession of the whole or any part
of the premises without obtaining the
consent in writing of the landlord
 Parted with possession means giving
the legal possession acquired under the
lease to a person who was not a party to
the lease agreement, which means
divesting himself not only of physical
possession but also of a right to
possession.
Will as defined u/s 2(h) of the Indian
Succession Act, that declaration of the
intention of the testator w.r.t his property
carried into effect after his death.
Will come into effect only after the
testators death
 Conclusion: Transfer of property
according to S.5 of the TPA exclude
transfer by will, for a will operates after the
death of the testator.
The act of making a will in itself would not
attract the provisions contained in
proviso(b).
No land lord can claim eviction, during the
life time of the tenant, reason being the
will can be revoked at any time, but after
the death it will come into effect hence the
property parted with possession without
approval of the landlord.
Hence eviction allowed and appeal
dismissed.
Mohar Sirngh v. Devi Charan
(1988) 3 SCC 63 : AIR 1988 SC
1365
Brief facts: The first respondent was a
tenant of two adjacent shops under a
single lease obtained from 2 co-owners.
The co-owners through an intermediary
alienation the property transferred to the
appellant and to some other person.
The appellant became exclusive owner of
one of the shops and initiated the
proceedings for the eviction u/s 21 of
U.P.Act, 1972 on the grounds of his own
bona fide need.
 The prescribed authority ordered for
release of the premises and made an
order granting possession.
The appeal was made to Muzaffarnagar
District Judge and it was dismissed by
that Judge.
Then the appeal made to the High Court
and it was accepted further stayed the
eviction.
Issue: Whether the tenant can be
evicted by only one of the co-owner or
not?
 Observations:
The findings as to the bonafides and
reasonableness of the requirement of
the appellant stand concluded by the
concurrent findings of the statutory
authorities.
Indeed that was not also the ground on
which the order of eviction was assailed
before the High Court in the writ petition.
 It is a trite proposition that a landlord
cannot split the unity and integrity of the
tenancy and recover possession of a part
of the demised premises from the tenant.
S.109 of the TPA provides a statutory
exception to this rule and enables an
assignee of a part of the reversion to
exercise all the rights of the landlord in
respect of the portion respecting which the
reversion is so assigned subject to the
other covenant running with the land.
There is no need for a consensual
attornment.
The attornment is brought about by
operation of law.
 The limitation on the right of the landlord
against splitting up of the integrity of the
tenancy, inhering in the inhibitions of his
own contract, does not visit the assignee
of the part of the reversion.
There is no need for the consent of the
tenant for the severance of the reversion
and the assignment of the part so
severed.
 As per the H.C. the contention that the
severance of the reversion and
assignment of that part of the reversion
in respect of the suit shop in favor of the
appellant did not clothe the appellant
with the right to seek eviction without the
lessor joining in the action;
And that in claiming possession of a part
of the subject-matter of the original
lease the appellant was seeking to split
the integrity and unity of the tenancy,
which according to the 1st Respondent
was impermissible in law.
 In general assignment affects a
severance, and entitles the assignee on
the expiry of the term to eject the tenant
from the land covered by the
assignment.
Transfer under s.5 read with s.109 of
TPA cannot be predicated of a partition
as partition is no transfer.
It is true that a partition is not actually a
transfer of property but would only
signify the surrender of a portion of joint
right in exchange for a similar right from
the other co-sharer or co-sharers.
 Conclusion: Some decisions of the different
High Courts tend to the view that even a
case of partition is covered by S.109 of
TPA even if this section does not then
apply the principle of the section is
applicable as embodying a rule of justice,
equity and good conscience.
In the result this appeal is allowed. Hence
the High Court decision set aside and that
of the District Judge, Muzaffarnagar
restored.
In the circumstances of this case, there will
be no order as to costs.
N.Ramaiah v. Nagaraj S. AIR
2001 Kant.195
Brief facts: The appellant was the brother of
one Anjanamma and she was the widow of
one Muni Narayanappa.
The Respondent was a brothers son of Muni
Narayanappa.
The R claims he got the disputed property
executed by the Muni through a will hence
he filed probate for grant of letters of
administration in regard to a will dated 11-1-98
Anjanamma contested that the said will is a
got up document.
She had succeeded to it as she is his sole
legal heir.
 The R filed interim application seeking a
temporary injunction to restrain A from
alienating/encumbering the properties or
withdrawing the amounts from the banks.
Directing the Anjanamma to maintain status
quo in regard to the properties until further
orders.
The learned single Judge made an order
directing the A to maintain status quo in
regard to the properties until further orders.
Subsequently the A died and the appellant
herein filed an application for impleading
himself as a respondent in place of A.
He claimed that A had bequeathed her
properties through a will to him and his
children and therefore he is one of the co-
owners of the properties.
 The learned single Judge, accepting the
objections, has dismissed the
application for impleading, holding that
the Will which was executed by A, in
breach and defiance of the order of
status quo and therefore non-est and of
no legal consequence and will have to
be ignored.
And that the appellant had no locus
standi to apply for impleading and was
not entitled to come on record and
contest the proceedings for letters of
administration filed by the respondent
 The relevant portion of the order of the
learned single judge is:
applicants learned counsel contended that
the status quo order only restricted
alienations and its his contention therefore
that the order in question does not come in
the way of the parties executing documents
which is different from alienation.
In my mind, this is virtually legal hairsplitting;
When a Court passes an order directing the
parties to maintain status quo, the order is a
blanket prohibitory order whereunder the
parties would be precluded not only from
effecting alienations or changes but also of
any related implications.
 The trial court has issued an order for the
maintenance of status quo it implies a
prohibition on the creation of a new right,
title or interest through the execution of
any documents.
If the need arises, it is open to the party to
apply to the Court either for vacating or
modifying the order or obtaining the
sanction of the court for doing any of the
acts which the party desires to undertake.
Issues: (1) Whether a bequest of a
property under a will is a transfer of the
property or not?
 (2). Whether a will made during the operation
of an order of status quo regarding a property,
is void and non-est or not?
Observations:
S.5 of the TPA deals with transfer intervivos
that is the act of a living person conveys
property, in present or in future, to one or more
other living persons.
As per the Respondents counsel a bequest
under a Will is nothing but a transfer of
property in future.
In this case A by executing a Will effected a
future transfer of the property, thereby violating
the order of status quo, therefore is invalid.
 The Will is u/S.2(h) of the Indian
Succession Act, 1929, that the legal
declaration of the intention of a testator
with respect to his property which he
desires to carried into effect after his death.
A Will does not involve any transfer, nor
affect any transfer intervivos, but is a legal
expression of the wishes and intention of a
person in regard to his properties which he
desires to be carried into effect after his
death.
A Will regulates succession and provides
for succession as declared by it
(testamentary succession) instead of
succession as per personal law (non-
testamentary succession).
 Under TPA the transfer is irrevocable
and comes into effect either immediately
or on the happening of a specified
contingency.
Wherein a will is a revocable and comes
into operation only after the death of the
testator.
The appellant contention is that of an
order of status quo in regard to property
did not bar the execution of a will nor
affected the validity of bequest and he
ought to have been permitted to contest
the case by coming on record.
 When a person makes a will, he provides
for testamentary succession and does not
transfer any property.
While a transfer is irrevocable and comes
into effect either immediately or on the
happening of a specified contingency.
Will is revocable and comes into operation
only after the death of the testator.
Thus to treat a devise under a will as a
transfer of an existing property in future, is
contrary to all known principles relating to
transfer of property and testamentary
succession.
 By execution of a Will, no right or title or
interest is created in favor of any one
during the life time of the deceased.
No Court has the power to make an
order, that too an interim order
restraining an individual from exercising
his right to execute a will and thereby
regulate succession on his death.
A direction to a party to maintain status
quo in regard to a party does not bar
him from making a testamentary
disposition in regard to such property.
 By making a Will the testator neither
changes title nor possession in regard to
a property nor alters the nature or
situation of the property nor removes or
adds anything to the property.
Therefore that making of a Will in regard
to a property does not violate an order of
status quo in regard to such property,
and consequently the testamentary
disposition is neither void nor voidable.
 Conclusion: It is evident that the order
merely directed A not to alienate or
convey the property and did not prohibit
her from executing a Will making a
testamentary disposition in regard to the
property.
The appellant claims to be the legatee in
possession of the property which is
claimed by the Respondent.
If the appellant is not permitted to come on
record, there will be no one to continue the
contest put up by A.
We, therefore, find that the appellant is a
necessary party to the proceedings for the
probate initiated by the Respondent.