Chapter 1

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1. General Introduction
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2. SCOPE OF THE ACT

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3. BASIC OBJECTIVES OF THE ACT

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4. LEGISLATIVE COMPETENCE
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5. APPLICATION OF THE ACT

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6. [S 2.1] HINDU LAW

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7. [S 2.2] TERRITORIAL APPLICATION

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8. [S 2.3] SUBSEQUENT EXTENSION OF THE ACT

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9. [S 2.4] SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER OF PROPERTY ACT, 1882
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10. Chapter 1 Movable and Immovable Properties

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11. RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND IMMOVABLE PROPERTY
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12. PROPERTY
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13. INTERPRETATION CLAUSE

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14. DOCTRINE OF FIXTURES

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15. ATTESTATION
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16. GENERAL PRINCIPLE

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17. NOTICE
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19. KINDS OF NOTICE

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20. REGISTRATION AS CONSTRUCTIVE NOTICE

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22. LEGISLATIVE HISTORY

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23. ACTUAL POSSESSION AS CONSTRUCTIVE NOTICE
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25. NOTICE TO THE AGENT

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26. LEGISLATIVE HISTORY

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Poonam Pradhan Saxena: Property Law, 3rd ed
Dr Poonam Pradhan Saxena
Poonam Pradhan Saxena: Property Law, 3rd ed > Poonam Pradhan Saxena: Property Law, 3rd
ed > General Introduction
General Introduction
The classical law relating to transfer of property was purely customary. Before the advent of the British and their
active intervention in the Indian legal system, Hindus and Muslims were governed by their respective laws in
relation to transfer of property. This arrangement worked adequately in the informal and traditional judicial system of
panchayats because those who decided the matter were not only familiar with the nature of the dispute but also
with the law and the litigants as well. However, the same scenario proved to be very confusing and uncertain with
the establishment of the informal courts in India by the British. In this adversarial litigation system, the disputes were
decided by impartial judges who were unfamiliar with the litigants and the distinctive social system of India.
Realising the absence of a concrete and ascertainable law of property comparable to what they had in England,
these courts applied English rules governing transfer of property with modifications to suit the Indian conditions.
However, such application of the British principles even with modifications, at times, was grossly inappropriate due
to the social and cultural differences between England and India. Thus, the desirability of enacting the law relating
to transfer of property was perceived soon after the consolidation of British authority in India. In addition, various
high courts in the absence of clear rules made a very liberal use of their own notions of the principles of equity,
justice and good conscience, and laid down diametrically opposite principles further compounding the confusion
and uncertainty. Even the Privy Council noted this uncertainty with concern, and attributed this undesirable scenario
to a lack of codification of the law of property in India calling upon the authorities to take urgent steps in this
direction.1
The first Law Commission2 was appointed by the British Queen primarily to codify the civil law in India including the
one relating to transfer of property. This commission prepared the draft Bill in 1870, which was introduced in the
Legislative Assembly in 1877.3 It was then referred to the select committee, was revised by it and was circulated for
public opinion. In light of the suggestions, it was redrafted and referred to the second Law Commission.4 After
several drafts, it was passed on 17 February 1882 and came into force on 1 July 1882.
The Bill was based primarily on the English law of real property. Therefore, the basic substantive content was the
English law, but as it was meant for India, it dropped what was primarily local and historical in context of English law
and the rest of the provisions were modified and re-moulded to suit the Indian conditions.
Soon after the coming into force of the Act, a bulk of conflicting case laws developed. This conflict made it apparent
that there was an urgent need of further exposition of law and legislative intervention. The Act was, thus,
consistently amended by not less than twelve amending Acts, yet despite these amendments, conflicting decisions
continued to pour in from various high courts and the resulting confusions necessitated further exposition of the law.
It became clear that in certain areas, the provisions of the Act were defective both in substance as well as in
drafting, and needed amendment. The legislative department of the government of India, therefore, prepared the
Bill incorporating the necessary changes and the same was referred to a special select committee.5 The amending
Act passed in 1929, amended not only several provisions of the Transfer of Property Act, 1882 (TP Act, 1882) but
involved amendments in several other enactments that became necessary to avoid confusion and co-existence of
conflicting provisions through the Transfer of Property (Amendment) Supplementary Act, Act (21 of 1929). The
principal Act was last amended on 2 May 2011.
1 See Solil Paul (ed.), Mulla, The Transfer of Property, 9th Edn, p xi.
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2 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. Besides the Transfer of Property Act, this committee also drafted the Indian
Evidence Act, the Indian Contract Act, the Indian Succession Act, and the Negotiable Instruments Act.
3 The then Secretary General of State for India, the Duke of Argyll, sent the draft to India, which after some modifications
was presented in the Legislative Assembly.
4 The second Law Commission consisted of Charles Turner, Chief Justice of Madras; Sir Raymond West and Mr Whitley
Stokes, law member of the Governor General.
5 This special select committee comprised of Mr SR Das, Law member of the council of the Governor General; Mr BR
Mitter, the then Advocate General of Bengal, Dr SN Sen and Mr Dinshaw Mulla.
End of Document
SCOPE OF THE ACT
SCOPE OF THE ACT

The Act defines and amends certain parts of the law relating to transfer of property by act of parties.6 The important
words used in the Act are ‘by act of parties’7, and therefore, it applies and governs the transfers by act of parties
only and does not govern transfers that take place due to operation of law. Accordingly, it does not govern transfers
of property through court auction,8 forfeiture, acquisition or due to insolvency proceedings or government grants.9 It
also does not govern transfers of property through intestate10 or testamentary11 succession.
6 See the Preamble, The Transfer of Property Act, 1882.

7 In some cases the Act has been applied to transfers by operation of law as well. For details see the discussion, infra.
8 The Act does not apply to a sale in execution, see Dinendronath Sanyal v Ramcoomar Ghose, (1881) ILR 7 Cal 107.
9 Dwarkaprasad v Kathlen, (1955) ILR 1955 Nag 538.
10 Kishori Lal v Krishna Kamini, (1910) ILR Cal 377.
11 Rajaparthasarthi v Raja Venkatadasi, AIR 1922 Mad 457.
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BASIC OBJECTIVES OF THE ACT
BASIC OBJECTIVES OF THE ACT

The Act defines certain expressions used in relation to transfer of property and amends the (then) prevailing rules
governing the same. It does not purport to introduce any new principle of law.12 One of the basic objectives of the
Act was to bring in harmony the rules relating to transfer of property between living persons and those applicable in
case of the devolution of the same in the event of the death of a person through intestate and testamentary
succession. The Act also seeks to complete the law of contract, as most of the transfers primarily arise out of a
contract between the parties. The Act has also, by providing for the compulsory registration of the transfers,13
changed the nature of a transfer of property from a private to a public affair.
Act not Exhaustive
The Act is not exhaustive nor is it a complete code.14 This means that it does not cover the entire law relating to
transfer of property but deals with certain aspects only. The fact that it is not exhaustive is also apparent from the
language that is used in the Preamble. Unlike the Indian Evidence Act, 1872, that uses the term ‘consolidate’
hinting at the completeness of the subject dealt with under the Act,15 the present Act seeks to define and amend
only certain parts of the law relating to transfer of property and not all areas or all parts of this branch of law. One of
the consequences of the Act not being exhaustive is that if a particular situation is not covered by any provision of
the Act, the courts in India are empowered to settle the same by applying the rules of equity, justice and good
conscience or even with the help of English cases16 on the relevant aspects, but only when the same is not
prohibited by any statutory provision of India.17 However, where the issue is expressly covered by the TP Act, 1882
or by any other Indian statute,18 the Indian courts have no such power.
12 Tajjo Bibi v Bhagwan, (1899) 16 All 295.

13 Except when the property is of a nominal value, or where it is let out for a short time period.
14 Jatendra v Rangpur Tobacco Co, AIR 1924 Cal 990; Venkatalingam v Parthasarthy, AIR 1942 Mad 558; HV Low & Co
Ltd v Pulin Bihari Lal Sinha, AIR 1933 Cal 154.
15 Collector of Gorakhpur v Palakdhari, (1890) ILR 12 All 1.
16 Kalyan Das v Jan Bibi, (1929) ILR 51 All 454; Maharaja of Jeypore v Rukmini, AIR 1919 PC 1.
17 Sabratan v Dhanpat, AIR 1933 All 70.
18 Venkatacharyulu v Venkatasubba, AIR 1926 Mad 55 [LNIND 1925 MAD 23].
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LEGISLATIVE COMPETENCE
LEGISLATIVE COMPETENCE
Transfer of property other than of agricultural land is a subject specified in the concurrent list. The Constitution of
India under its seventh schedule, by virtue of entry 6 of list III, empowers both the states as well as the Parliament
to frame laws on this topic.19 As far as agricultural land is concerned, the states alone are empowered to legislate
on the same by virtue of entry 18 list III of the seventh schedule of the Constitution of India, and in cases where
there is a conflict, a state law relating to transfer of agricultural land can override a parallel conflicting provision of
the Transfer of Property Act, 1882.20 The state, therefore, has the power to make special provisions or rules with
respect to the transfer of agricultural property which may include registration, or prohibiting persons from alienating
such land, including a power to frame rules with respect to reopening of such transfers or alienations.21
19 This also includes legislation on the landlord and the tenant relations with respect to non-agricultural property in India;
see Bapalal v Thakurdas, AIR 1982 Mad 399 [LNIND 1982 MAD 156].
20 Megh Raj v Allah Rakhia, (1947) FCR 77 (PC).
21 Lingappa Pochanna v State of Maharashtra, AIR 1985 SC 389 [LNIND 1984 SC 331].
End of Document
APPLICATION OF THE ACT
APPLICATION OF THE ACT

[s 2] Repeal of Acts—Saving of certain enactments, incidents, rights, liabilities, etc.—In the territories to
which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be
repealed to the extent therein mentioned. But nothing herein contained be deemed to affect—
(a) the provisions of any enactment not hereby expressly repealed;

(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of
this Act, and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in
respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in
execution of, a decree or order of a Court of competent jurisdiction;
and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law.
The Act expressly repeals the enactments specified in the schedule but saves the provisions of any enactment that
have not been so repealed.22
Chapter II of the Act does not apply to transfer of property among Muslims, in so far as there is a contrary provision
under Muslim law. The rule is not that the TP Act, 1882 does not apply to Muslims, but the rule is that if there is a
rule of Muslim law at variance or different from that specified under the TP Act, 1882, it is the Muslim Law that
would prevail, but if there is no contrary or inconsistent rule under Muslim Law, Muslims would be subject to the
provisions of this chapter as well. Notable in this part are the rules with respect to gifts and settlement of property in
perpetuity. Under the general rules specified under the TP Act, 1882, a gift of immovable property must be
executed with the help of a written, attested and registered gift deed.23 The delivery of possession of the property is
not an essential requirement to the validity of the gift, and will depend upon the contract between the parties. Under
Muslim law, however, a gift of immovable property can be effected orally, and generally, the gift is not valid unless it
is followed by immediate delivery of possession of the property.24 The latter rule will be applicable only in case of
gifts made between Muslims. Similarly, sections 13 and 14 of the TP Act, 1882 prohibit transfer of property in favour
of unborn persons and are against the rule of perpetuity. However, under Muslim law, property can be tied up and
transferred for the benefit of one’s descendants not yet in existence if the ultimate benefit goes to charity.25
22 See The Transfer of Property Act, 1882, section 2(a).

23 The Transfer of Property Act, 1882, section 123.
24 See Poonam Pradhan Saxena, Family Law Lectures: Family Law–II, pp 527-528.
25 Wakf Validating Act, 1913.
End of Document
[S 2.1] HINDU LAW
[S 2.1] HINDU LAW

Till 1929, the Act also saved expressly the rules of Hindu Law in their application to Hindus. However, the amending
Act of 1929 omitted the word Hindus from section 2 and brought them under the purview of the TP Act, 1882.26
26 The classical rules of Hindu law that made bequests and transfers in favour of unborn persons, wholly void were
abrogated by the Hindu Disposition of Property Act, 1916 (15 of 1916) and the Madras Act of 1914 and Act of 1921,
and such transfers were validated to some extent.
The rules with respect to transfers to a class of persons where with respect to some of them the transfer is valid, and for
some it is void, were also modified. The earlier rule of Hindu law, i.e., making the whole of the transfer void, has also
been modified. Presently, the complete transfer does not fail and it is valid with respect to those who are capable to
take the transfer in their favour and void with respect to those who are incapable to do so.
End of Document
[S 2.2] TERRITORIAL APPLICATION
[S 2.2] TERRITORIAL APPLICATION

To begin with, the application of the Act was extended to the whole of British India.27 This expression, ‘British India’,
after independence, was replaced by ‘all the provinces of India’ and soon, further replaced by ‘whole of India’.
27 See The Transfer of Property Act, 1882. The term ‘British India’ did not include the native states of India, Land ceded
by native princes to the British government for limited purposes such as for railway administration; cantonment areas
and civil areas, etc, and those territories that were specifically excluded by legislative enactments.
End of Document
[S 2.3] SUBSEQUENT EXTENSION OF THE ACT

Section 1 of the TP Act, 1882 provides:
Extent.—It extends in the first instance to the whole of India except the territories which, immediately before the 1
November 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.
But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the
said territories by the State Government concerned.
And any State Government may from time to time, by notification in the Official Gazette, exempt, either
retrospectively or prospectively, any part of the territories administered by such State Government from all or any of
the following provisions, namely: —
Section 54, paragraph 2 and sections 3, 59, 107 and 123.
Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, and sections 59, 107
and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the
operation of the Indian Registration Act, 1908, (16 of 1908) under the power conferred by the first section of that Act
or otherwise.
The state governments are empowered under the Act to extend the operation of the Act to the territories where
earlier the Act did not apply. However specifically, four provisions mentioned under the Act that deal with the
execution and registration of specific transfers of immovable property—namely, sale, mortgage, lease and gifts
cannot be so extended to those areas which have been expressly excluded by the Registration Act, 1908.28 The
application of the Act has been extended to Bombay,29 Sind,30 Burma,31 Panth Piploda,32 all Part B states,33 the
merged states,34 Tripura, Vindhya Pradesh,35 Madhya Pradesh,36 Madras,37 Mysore,38 Rajasthan,39 Kerala,40
Manipur,41 Saurashtra, and Hyderabad, areas of Bombay,42 Delhi,43 Goa, Daman and Diu,44 Punjab,45 and
agricultural lands of Travancore.46 By virtue of Pondicherry (Extension of Laws) Act, 1968 and Pondicherry (Laws)
Regulation, 1963, the application of the Indian Contract Act, 1872 and the Transfer of Property Act, 1882 were
extended to Pondicherry.47
28 Via the Transfer of Property Act, 2011, 2 May 2011 for the state of Punjab.
29 W.e.f. 1-1-1893, see the Bombay Rules and Orders, Vol II, p 195; see also the Central Act 30 of 1950.
30 W.e.f. 1-1-1915, see the Bombay Rules and Orders, Vol II, p 195.
31 W.e.f. 22-12-1924, see Burman Gazette, 1924, Pt. I, p 1082.
32 Panth Pithoda Laws Regulations, 1929, 1 of 1929.
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33 Part B States Laws Act, 1951.

34 The Merged States Laws Act, 1950.
35 By the Central Act, 1950, 30 of 1950.
36 By Madhya Pradesh Act 12 of 1950.
37 By the Madras Act 35 of 1949.
38 Except Bellary District, see the Mysore Act 32 of 1951.
39 By notification. See Rajasthan Gazette 1952, Pt. IV-A, p 185 see also Champa Lal v Rameshwar, AIR 1967 Raj 233.
40 W.e.f. 1955, by the Travancore Cochin Act 11 of 1955.
41 Manipur Law Regulation 1929, 2 of 1929; see also the Central Act 68 of 1956.
42 By the Bombay Act 57 of 1959.
43 The whole of the Act except section 129, has been extended to Delhi, see Gazette of India, Pt. II, dated 17 November
1962, p 1852.
44 W.e.f. 1-11-1965, see Sazro Govind Gadi v Malba Madeva Suria Rao Desai, AIR 1969 Goa 42.
45 For its application to Punjab, see Gian Chand Shamchand v Rattan Lala Krishan Kumar, AIR 1964 Punj 210.
46 From 1 July 1955, see Lakshmi Pillai Subhadra Amma v Easwara Pillai Velayudhan Pillai. AIR 1977 Ker 148 [LNIND
1977 KER 85], 1977 Ker LT 464.
47 Gothamchand Jain v Arumugam alias Tamilarasan, (2013) 10 SCC 472 [LNIND 2013 SC 832] : (2013) 7 Mad LJ 199
(SC).
End of Document
[S 2.4] SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER
OF PROPERTY ACT, 1882
[S 2.4] SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER OF

PROPERTY ACT, 1882
If the Parliament has enacted special laws to deal with certain kinds of transfers, the Transfer of Property Act, 1882,
would not apply to such situations. For instance, the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interests Act, 2002, to secure bank loans from companies;48 the Karnataka Scheduled
Castes and Scheduled Tribes (Prohibition of Transfers of Certain Lands) Act, 1978, to protect exploitation of Tribal’s
against unscrupulous non–tribals, prohibiting transfer of tribal land in favour of non tribals,49 the Burma Shell
(Acquisition of Undertaking in India ) Act, 1976,50 the Employees’ Provident Funds and Miscellaneous Provisions
Act, 1952,51 the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960),52 the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 (Act 44 of 1954)),53 the Sick Industrial Companies (Special
Provisions) Act, 1985 (1 of 1986),54 are some of the enactments that would oust the application of the Transfer of
Property Act, 1882 in specific cases. Similarly, the registration of the instrument made under the Ranchi Regional
Development Authority Act shall be sufficient to vest the property with the applicant, notwithstanding the Transfer of
Property Act.55 The Transfer of Property Act is also made inapplicable to the Government and section 3 of the
Government Grants Act, 1895 makes it clear that the Government grants is to take effect according to their tenor,
notwithstanding any rule of law, statute or enactment of the legislature to the contrary to the same.56
The transaction of lease is subject to levy of stamp duty under the Indian Stamp Act 1899 and is governed by
Transfer of Property Act, 1882, but the subject matter of property and leasing are covered by field assigned to State
legislature and thus, outside the purview of the General Legislature.57
[s 2.4.1] Meaning of ‘Real Property’ and ‘Chattels Real’
The term ‘property’ is used to denote either rights in the nature of ownership or the corporeal things, whether lands
or goods, which are the subjects of such rights.58 ‘Real’ denotes that the thing itself, or a particular right in the thing,
may be specifically recovered;59 and, since originally specific recovery was only allowed in cases where the
claimant was entitled to a freehold interest, that is, an estate for life or a greater estate,60 ‘real property’ denotes (1)
land and things attached to land so as to become part of it; and (2) rights in the land which endure for a life or are
inheritable, whether these involve full ownership or only some partial enjoyment of the land or the profits. On the
other hand, rights in land which endured for a term of years only, were not originally specifically recoverable and
were described as ‘chattels real’ under English law.
[s 2.4.2] Meaning of ‘Personal Property’
Personal property or personalty may be roughly described as comprising all forms of property, movable or
immovable, corporeal or incorporeal, other than freehold estates and interests in land (which may include chattels
affixed to land)61 and its appurtenances.62 Moreover, by the equitable doctrine of conversion, equitable interests in
freehold property are sometimes treated as personal property, as, for instance, where the freehold is held by
trustees upon trust for sale,63 or on the exercise of an option to purchase.64
Personal property is divisible into two classes: chattels personal, and chattels real. Chattels personal have retained
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[S 2.4] SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER OF PROPERTY ACT, 1882
much of their former individuality; in particular, the rules which govern the acquisition and alienation inter vivos of
chattels personal, different from those applicable to real property.
Chattels Real
Chattels real are interests concerning or savouring of realty, such as a term of years in land,65 an annuity issuing
out of a term of years,66 which have the quality of immobility which makes them akin to realty, but lack
indeterminate duration. In some respects they are subject, like other chattels, to the law of personal property, but in
others, they are subject to the law of real property.67
Chattels Personal
Chattels personal are, strictly speaking, things movable, but in modern times the expression is used to denote any
kind of property other than real property and chattels real.68
‘Personalty’ or ‘personal property’ includes bills of exchange, debentures,69 government annuities and stock in the
public funds,70 but does not include title deeds relating to real estate,71 heirlooms in the strict sense72 or fixtures,73
and it does not always include growing crops or trees.74
Some kinds of property are declared by statute to be personalty, capable of being dealt with as personalty.75
Certain things are not the subjects of property.76 An option to purchase land is, however, property and presumably,
is personal property.77
48 Mardia Chemicals Ltd v UOI, (2004) 4 SCC 311 [LNIND 2004 SC 458].
49 Harish Chandra Hegde v State of Karnataka, (2004) 9 SCC 780.
50 Bharat Petroleum Corp v P Kesavan, (2004) 9 SCC 772 [LNIND 2004 SC 434].
51 Maharashtra State Co-op Bank Ltd v Assistant Provident Fund Commissioner, (2010) 2 Bom CR 724 [LNIND 2010
AUG 94] : (2010) 5 AIR Bom R 380.
52 Indian Bank v Nippon Enterprises South, Chennai, AIR 2011 Mad 238 [LNIND 2011 MAD 1180]: 2011 (2) Mad LW
521.
53 Niranjan Kaur v The Financial Commissioner, Revenue and Secretary to Government, Punjab, AIR 2011 P&H 1 (FB) :
2010 (4) Ren CR (Civil) 610.
54 Raheja Universal Ltd v NRC Ltd, (2012) 4 SCC 148 [LNINDORD 2012 SC 397] : AIR 2012 SC 1440 [LNINDORD 2012
SC 397].
55 Nand Kishore Sahu v State of Jharkhand, (2011) 1 AIR Jhar. R 771 : AIR 2011 Jhar 65 [LNIND 2010 JHAR 467].
56 UOI v Dinshaw Shapoorji Anklesari, (2014) 14 SCC 204 [LNINDU 2014 SC 51].
57 Shubh Timb Steels Ltd v UOI, ILR (2011) 1 P&H 1008 : (2011) 45 VST 413.
58 This dual meaning of ‘property’ arises from a tendency to identify the corporeal thing with the aggregate of rights which
make up the entire right of ownership, including the right of exclusive possession or enjoyment; and it is confined to
cases where the right involves possession. Thus, where a person is entitled to land in fee simple in possession,
‘property’ is appropriate to describe both the land itself and his interest in the land; but, where the right does not involve
possession of a corporeal thing, where e.g. it is an easement or a rentcharge, ‘property’ denotes a right only. See
Austin’s Jurisprudence, fifth edn., pp 361, 777; Williams on the Law of Real Property, twenty-fourth edn., p 4. This
identification of the right of ownership with the land itself accounts, also, for the dual meaning of ‘corporeal
hereditament’. All rights in land which formerly were heritable, whether involving full ownership with possession or only
a partial right, such as a rentcharge, unaccompanied by possession, are, strictly speaking, incorporeal hereditaments
(see Challis’s Law of Real Property, third edn., p 49), but the right of ownership with possession is identified with the
land itself and is called a ‘corporeal hereditament’, and the term ‘incorporeal hereditament’ is reserved for partial rights
in the land.
59 In the Transfer of Property Act, 1882, unless the context otherwise requires, ‘property’ includes any thing in action and
any interest in real or personal property: Here, ‘property’ is used to mean an incorporeal right, and, also, in the case of
land, the corporeal thing. In the case of personal property it may be either a corporeal thing, such as a vehicle, or an
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incorporeal thing, such as a share in a company. This follows from the division of actions into real and personal, a
division which is quite distinct from that between actions in rem and actions in personam.
60 This incident of specific recovery has no actual connection with the nature of the right of property, see Pollock and
Maitland’s History of English Law, second edn., p 181 et seq; A more substantial distinction is that ‘things real are such
as are permanent, fixed, and immovable, which cannot be carried out of their place; as lands and tenements: things
personal are goods, money, and all other movables; which may attend the owner’s person wherever he thinks proper to
go’. However, this only suits tangible forms of personal property, and not the most important modern forms such as
shares and other choses in action. As to the specific recovery of interests in land which were of a freehold nature and
based on ‘seisin’, see 3 Holdsworth’s History of English Law, third edn., p 5 et seq; 7 Holdsworth’s History of English
Law, p 23 et seq; Cheshire and Burn’s Modern Law of Real Property, fifteenth edn., p 30.
61 As to the general rule of law that anything affixed to the freehold becomes part of it, and the exceptions to the rule, see
Bain v Brand, (1876) 1 App Cas 762 at 767 (HL); Simmons v Midford, (1969) 2 Ch 415, [1969] 2 All ER 1269 (drains);
HE Dibble Ltd v Moore, (1970) 2 QB 181, (1969) 3 All ER 1465 (CA).
62 There are certain interests which partake of the nature of real estate which may not be completely covered by the
above definition For all practical purposes, however, the definition is believed to be sufficient. Examples of such
interests are peerages and dignities; see Nevil’s Case, (1604) 7 Co. Rep 33a; Lord Advocate v Walker Trustees, (1912)
AC 95 at 104 (HL); and deeds of real estate (as to the common law rule by which these ordinarily pass with the realty to
which they relate, and as to the exceptions to the rule, see Co. Litt 6a; Harrington v Price, (1832) 3 B&Ad 170; Re
Williams and Duchess of Newcastle’s Contract, (1897) 2 Ch 144 at 148; Beaumont v Jeffery, (1925) Ch 1. As to the
distinction between property and a power over property, see Re Armstrong, ex p Gilchrist, (1886) 17 QBD 521 (CA).
63 An agreement for the sale of an interest in the proceeds of sale of land under a trust for sale may, however, constitute
an agreement for the sale of an interest in land; see Cooper v Critchley, (1955) Ch 431, (1955) 1 All ER 520 (CA);
however see also, Stevens v Hutchinson, (1953) Ch 299, (1953) 1 All ER 699; Irani Finance Ltd v Singh, (1971) Ch 59,
(1970) 3 All ER 199 (CA); Elias v Mitchell, (1972) Ch 652, (1972) 2 All ER 153; Cedar Holdings Ltd v Green, (1981) Ch
129, (1979) 3 All ER 117 (CA); Williams and Glyn’s Bank Ltd v Boland, (1981) AC 487, (1980) 2 All ER 408 (HL); Gray
(surviving executor of Lady Fox deceased) v IRC, (1994) STC 360 (CA).
64 In relation to a right of pre-emption; see Pritchard v Briggs, (1980) Ch 338, (1980) 1 All ER 294 (CA).
65 Countess of Bridgewater v Duke of Bolton, (1704) 6 Mod Rep 106 at 107; Freke v Lord Carbery, (1873) LR 16 Eq 461
at 466; Re Watson, Carlton v Carlton, (1887) 35 WR 711; Tomkins v Jones, (1889) 22 QBD 599 at 602 (CA); Re
Grassi, Stubberfield v Grassi, (1905) 1 Ch 584; Crago v Julian, (1992) 1 All ER 744, (1992) 1 WLR 372 (CA). As to
options in leases to purchase the fee simple; see Woodall v Clifton, (1905) 2 Ch 257 at 279 (CA).
66 Re Fraser, Lowther v Fraser, (1904) 1 Ch 111 (affd (1904) 1 Ch 726, CA; Re Ramadge’s Settlement, Hamilton v
Ramadge, (1919) 1 IR 205.
67 Whitaker v Ambler, (1758) 1 Eden 151 at 152; Prescott v Barker, (1874) 9 Ch App 174 at 190.
68 Thus in its wider sense ‘chattels personal’ includes choses in action: ‘Chattel’ is derived from the Latin ‘catalla’, which
primarily signified beasts of husbandry or cattle, but in its secondary sense it was applied to all kinds of movables; 2 Bl
Com, 14th Edn., 385; as to whether a prehistoric boat embedded on the soil below the surface is a chattel; see Elwes v
Brigg Gas Co, (1886) 33 Ch D 562. As to shares being chattels for the purpose of Supreme Court fees; see Re Givan,
Rees v Green, (1966) 3 All ER 393, (1966) 1 WLR 1378; Bain v Brand, (1876) 1 App Cas 762 at 767 (HL).
69 Attree v Hawe, (1878) 9 ChD 337, 351 CA.
70 Dundas v Dutens, (1790) 1 Ves 196 at 198; Wildman v Wildman, (1803) 9 Ves 174 at 177; R v Capper, (1817) 5 Price
217 at 263, 264.
71 As to title deeds see Harrington v Price, (1832) 3 B&Ad 170 at 173.
72 These were heirlooms, which, by virtue of a special custom, descended with the inheritance of the land; Viscount Hill v
Dowager Viscountess Hill, (1897) 1 QB 483 at 494 (CA).
73 See Bain v Brand, (1876) 1 App Cas 762 at 767.
74 Re Ainsli.e., Swinburn v Ainslie, (1885) 30 Ch D 485 (CA), where growing timber was held to be real estate until
severed.
75 Re Lyne’s Settlement Trusts, Re Gibbs, Lyne v Gibbs, (1919) 1 Ch 80 (CA).
76 Benefits which are entirely at the discretion of trustees did not constitute property for estate duty purposes, Re J Bibby
& Sons Ltd, Pensions Trust Deed, Davies v IRC, (1952) 2 All ER 483. As to pews in a church see Re St. Mary’s,
Banbury, (1986) Fam 24, (1985) 2 All ER 611, Oxford Consistory Ct; affd (1987) Fam 136, (1987) 1 All ER 247. As to
church monuments and their accoutrements; Re St. Andrew’s, Thornhaugh, (1976) Fam 230, (1976) 1 All ER 154,
Peterborough Consistory Ct; Re St. Bartholomew’s, Aldbrough, (1990) 3 All ER 440, York Consistory Ct.
77 George Wimpey & Co Ltd v IRC, (1975) 2 All ER 45 at 49, (1975) 1 WLR 995 at 1000 (CA).
Page 4 of 4
End of Document
Chapter 1 Movable and Immovable Properties
ed > Chapter 1 Movable and Immovable Properties

Property can be classified into several categories such as tangible and intangible, real and personal, corporeal and
incorporeal, movable and immovable. For the purpose of the TP Act, 1882, it is the last categorisation, i.e., the
distinction between movable and immovable property that is relevant. The Act does not define the term property,
but only gives a definition of immovable property.
End of Document
RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND
IMMOVABLE PROPERTY
RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND

IMMOVABLE PROPERTY
The primary reasons why the study of the character of property, i.e., whether it is movable or immovable is relevant,
is due to the difference in procedural formalities in the transfer, and the different time stipulated in the law of
limitation in having recourse to the litigative system in case of disputes. Thus, four predominant reasons necessitate
a study of the distinction between movable and immovable property.
(i) Though the TP Act, 1882 lays down general rules relating to the transfer of both movable as well as
immovable property, it governs and lays down rules for the specific transfers of immovable property only.
(ii) The TP Act, 1882 provides a specific procedure for the transfer of immovable property that is distinct from
the one followed in the case of movable property. The transfer of immovable property must take place with
the help of a written document that is properly executed by the transferor and the execution should be
properly attested and registered. Unless the transfer complies with all the three requirements, it will not
convey any right from the transferor to the transferee. In contrast, the transfer of movable property in
several cases will be complete by simple delivery of possession of the property coupled with an intention to
convey the title by the owner to the recipient. For conferment of rights in the property through a transfer,
the knowledge of the character of the property and the correct procedure for its transfer is a must.
(iii) Transfer of immovable property attracts the provisions of the Stamp Duty Act. For this, the property has to
be correctly valued and the duty is to be paid accordingly. The registrar is empowered to take suitable
action to realise the deficit in the stamp duty in case of inappropriate payment and may also impose
penalty.1
(iv) The law of limitation specifies different time periods within which a civil suit can be filed with respect to
movable and immovable property. In case of immovable property it is generally 12 years from the date the
cause of action arises, but in case of movable property, the suit must ordinarily be filed within a period of
three years from the date of the cause of action, otherwise it will be dismissed as time barred. Thus it is
extremely relevant to know the character of the property that is the subject matter of dispute, before a suit
can be filed with respect to it in a court of law.2 In a suit relating to movable property, where it is filed after
the expiration of three years from the date the cause of action arises, the first question that the court will
decide, will be the character of the property. If the court comes to the conclusion that it is immovable
property, it will decide the case on merits, but if the court concludes that the character of the property is
movable, the case will not be heard on merits, but would be held barred by limitation and will be thus
dismissed.
1 Duncan Industries v State of Uttar Pradesh, (2000) 1 SCC 633 [LNIND 1999 SC 1096] : AIR 2000 SC 355 [LNIND 1999
SC 1096].
2 Except when property is of nominal value or is let out for a short duration.
Page 2 of 2
RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND IMMOVABLE PROPERTY
End of Document
PROPERTY
PROPERTY
The term property has nowhere been defined in the Act,3 but it is used in the widest and most generic sense.4
Property is the most comprehensive of all terms which can be used, as much as it is indicative and prescriptive of
every possible interest which any person can have.5 Thus, it means not only the physical objects, but includes
rights and interests existing in or derived out of the actual physical object as well.6 For instance, the beneficial
interest of the head of a religious endowment such as a mutt,7 an actionable claim,8 a right to a reconveyance of
land, a right to obtain shares in a company,9 is property.
Interests in Property
An owner has three basic rights in the property, i.e.—a right of ownership, of having the title to the property,
secondly, an exclusive right to possess and enjoy the property and thirdly, an exclusive right to alienate the property
in any manner that he likes. Absolute ownership is therefore an aggregate of component rights, including a right to
enjoying the usufruct of the land.10 These rights are called ‘interests’ in the property under Indian law, and are
referred to as ‘real rights’ under English law. Where only some rights in property are transferred, it would be a
transfer of an interest in the property.11 A vested remainder,12 a contingent interest,13 a lease14 or a mortgage of an
immovable property is the transfer of an interest in the property. Where all the interests in the property are
transferred, it is called an absolute transfer of property. Property can be transferred absolutely by sale, gift,
exchange, relinquishment, dedication etc.
Concept of Immovable Property
The literal meaning of the term ‘immovable’ is incapable of being moved, motionless, steadfast, or firmly fixed. In
contrast, movable is explained as something that can be moved in relation to a place. Thus a layman’s distinction of
movable and immovable property can be—what can be moved is movable, and what cannot be moved is
immovable. It may appear simple but there may be some complications. For instance, fans and tube lights, window
panes, tapestries on the wall, though fixed, may still retain the character of movables. For understanding the
concept of immovable property, let us take a look at the definition of ‘immovable property’ under different
enactments.
The TP Act, 1882 does not define immovable property but section 3 states as under.
3 See The Transfer of Property Act, 1882.

4 Mata Din v Kazim Husain, (1891) ILR 14 Cal 241; Bans Gopal v Banerji, AIR 1949 All 433.
5 Jones v Skinner, (1835) 5 LJ Ch 87, 90.
6 Ramshankerlal v Ganesh Proshad, (1907) ILR 29 All 385.
7 Commr. v Lakshindra, AIR 1954 SC 282 [LNIND 1954 SC 69].
8 Muchiram v Ishan Chander, (1894) ILR 21 Cal 568; Rudra Prakash v Krishna, (1887) ILR 14 Cal 241.
Page 2 of 2
PROPERTY
9 Narasingerji v Panaganti, AIR 1924 PC 226.

10 Indar Sen v Naubat Sen, (1885) ILR 7 All 553.
11 Sunil Sidharthbai v Commr of Income Tax, AIR 1986 SC 368 [LNIND 1985 SC 303].
12 Gulam Husein v Fakir Mahomed, AIR 1947 Bom 185; Umesh Chander v Jahoor Fatima, 17 IA 201.
13 Ma Yait v Official Assignee, AIR 1930 PC 17.
14 Indraloke Studio Ltd v Santi Debi, AIR 1960 Cal 609.
End of Document
INTERPRETATION CLAUSE
[s 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;
The General Clauses Act, 1897 explains it as follows.
“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.15
The Registration Act, 1908,16 defines it as under.
“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.
The expression ‘things attached to earth’ has again been explained in section 3 of the TP Act, 1882 as things which
are rooted in earth, such as trees and shrubs, things that are embedded in earth such as walls and buildings and
things that are permanently attached to what is embedded in the earth for the permanent beneficial enjoyment of to
which it is attached.
Thus, immovable property includes land, benefits arising out of land, things rooted in earth, things embedded in
earth, and attached to what is embedded in the earth for its permanent beneficial enjoyment, but does not include
standing timber, growing crops and grass. It comprehends all that would be real property according to English Law,
and possibly more.17
Things Rooted in Earth and Standing Timber, Growing Crops and Grass
The term ‘things attached to earth’ includes things rooted in earth such as trees and shrubs, but excludes standing
timber, growing crops and grass.18 These three specific exclusions are rooted in earth, yet are covered under the
term ‘moveable’ property. It signifies that standing timber, growing crops and grass are legally perceived as distinct
from ‘things rooted in earth as in case of trees and shrubs’.
Trees
Page 2 of 8
Trees are immovable property as they are rooted in earth and by virtue of section 3 of TP Act, 1882, Registration
Act, 1908 and the General Clauses Act, 1897, they are specifically included in the expression ‘immovable property’.
Trees can be of various types and can be put to several uses. The Act does not classify them on the basis of their
use generally, but simply excludes standing timber. It signifies that those trees which do not fall in the category of
standing timber would invariably be covered under immovable property. Thus, fruit-bearing trees,19 mahua tree,20 a
date tree,21 mango and jackfruit trees22 are immovable property. An agreement to sell standing and fallen mango
and jackfruit trees on the estate is an agreement to sell immovable property.23 A mortgage with possession of a
fruit-bearing tree with the intention that the mortgagee is to enjoy the fruit of the tree, would be a mortgage of
immovable property.24 Similarly, a right created in favour of a party to cut the trees for four years is a right in
immovable property.25 It, therefore, means that every tree that bears fruit cannot be called a fruit tree and that
where a tree is not grown for its fruits to be used as such or where it was not a usual crop on the land, it cannot be
treated as a fruit tree.26
Timber Trees and Standing Timber
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. Timber is associated with and is used for making tools, utensils, furniture,
carriages, fences, and the like,27 or for other structural purposes.28 Timber is defined in Webster’s Collegiate
Dictionary as a wood suitable for building houses, bridges, ships, etc., whether on the trees or cut and seasoned. In
India, the popular timber trees are shishum,29 babul,30 teak,31 bamboo,32 deodar, kail, rai, etc. Neem is used both as
a medicinal plant as well as for its timber. Similarly, a mango tree, though grown for its fruit; it would be regarded as
standing timber in provinces where the wood of mango trees is used as timber and is generally used for building
and repairing houses.33
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. Let us
understand it like this: a timber plant or sapling needs to grow to a particular height or/and age when the wood
becomes suitable to be used as timber. Thus, the moment they are planted till the time they are immature, they
would be covered under the expression, ‘things rooted in earth’, and hence would be ‘immovable property’. When
they reach a particular maturity level, when the wood can be used as timber then, what is important to be seen is,
whether they are intended to be cut within a short period of time or not. If yes, then they would be called standing
timber, and if not, they would still be categorised as timber trees, and hence would be immovable property. Thus,
before a tree can be regarded as standing timber, it must be in such a state that if cut, it could be used as timber,
and when in the state, it must be cut reasonably early.
The test is whether the intention is to take the benefit from the further growth of the plant i.e., whether the tree/plant
is drawing nourishment from the land for its sustenance, or uses the earth merely as a warehouse or a godown for
their conveniences’ sake. For instance:
(i) A, the owner of a forest enters into a contract with B, and grants to him a right to enter his forest and cut all
kinds of plants and trees above the height of 10 feet, for a period of five years. The nature of right granted
in his favour will be a right in immovable property.
(ii) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and cut
only timber trees that are in various stages of growth. The right again is a right in immovable property, as
the contract is for timber trees and not standing timber.
(iii) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to
cut standing timber, and the right is spread over a period of twenty years. The right is in immovable
property as timber trees that are immature presently would become mature during the tenure period, and
the grantee will be benefited from the further growth of the trees. The right is in immovable property even
though the intention is to cut them away within a short span of time, when their wood becomes ready to be
used as timber.
(iv) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to
cut only timber trees for a period of ten years. All timber trees in his forest are fully grown mature trees.
Page 3 of 8
The right is still in immovable property as the intention is not to cut them within a short reasonable time
period but is spread over a period of ten years;
(v) A, the owner of an estate enters into a contract with B, and grants to him a right to enter his estate and to
cut only standing timber for a period of six months. The right would be in movable property.
Thus the term standing timber connotes that in order to be regarded as movable property:
(a) It must be a timber tree,

(b) It has reached a particular stage where its wood is ready to be used as timber and
(c) It is intended to be cut reasonably early.
Since standing timber is not included in the expression immovable property, a document relating to transfer of
standing timber does not require registration.34
Case Laws Relating to Property
In Shantabai v State of Bombay,35 A, the owner of a forest, executed an unregistered document styled as a lease in
favour of his wife W, for a consideration of Rs 26,000, for a period of 12 and a half years. As per the deed, the right
was conferred upon her to enter the estate for cutting and taking out bamboo, fuel wood and teak. At the same
time, she was prohibited from cutting teak plants that were under the height of one and a half feet, but the moment
the teak trees reached that girth, they could be felled by her, but within 12 years. She enjoyed this right for two
years, when the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 was
passed, under which all proprietary rights in the land vested in the state and W was stopped from cutting any more
trees. W claimed compensation from the government for being ousted from the forest from 1951 to 1955, but gave
up the claim initially on the understanding that she would be allowed to work the forests for the remaining period.
Though she applied to the Divisional Forest Officer and asked for permission to work the forests, it was not granted
to her, and when she started cutting the trees on her own, she was stopped by the Forest Officer from doing so.
She filed a petition in the court under Article 32 of the Constitution. W contended that as the right granted to her
was a right in standing timber, she was entitled to compensation. The issue before the court was: what was the
nature of right created in her favour, a right in movable or immovable property?
The relevance of this question as to whether the right granted in her favour was a right in movable or immovable
property was that if the right was in immovable property, then irrespective of the fact of the change in ownership,
she would still be entitled to realise the right but provided it was conferred in her favour with the help of a document
capable of taking effect in law, i.e., where it was a lease for a period of 12 years it should have been executed in
her favour with the help of a written, attested and registered document. If it is not, then it will not pass the right or
title in her favour with respect to the property for 12 years. Secondly, if it was a right in movable property, then if the
ownership changes hands, then, though the right to take the benefit as per the original contract will come to an end,
but the grantee would be entitled to compensation for the rest of the time period for which she was not able to
realise the right. Here, W could never have succeeded in pleading that the right was in immovable property as the
document on which she relied was in writing, but was neither attested nor registered. Thus, she tried to prove that
the grant was in standing timber, and therefore in movable property.
The court held that a right to enter upon the land of another and carry a part of the produce is an instance of profits
à prendre, i.e., benefit arising out of land, and therefore a grant in immovable property. Pointing out the distinction
between timber trees and standing timber, the court held that the grant here was not merely of standing timber, but
the grantee here was empowered to take the benefit of the soil. The court said:
…the duration of the grant is 12 years. It is evident that trees that will be fit for cutting 12 years hence will not be fit for
felling now. Therefore it is not a mere sale of the trees as wood. It is more. It is not just a right to cut a tree, but also to
derive a profit from the soil itself, in the shape of nourishment in the soil that goes into the tree and make it grow till it is of a
size and age fit for felling as timber and if already of that size in order to enable it to continue to live till the petitioner choose
to fell it.
The right created in her favour, the court held was a right in immovable property as it was spread over a period of
12 years and the intention was not to cut the trees at a reasonably early time period. As the right was in immovable
property but was created with the help of an unregistered lease deed, W could not be granted any remedy.
Page 4 of 8
On a question whether a contract to cut standing timber would require registration or not, the court in State of
Himachal Pradesh v Motilal Pratap Singh & Co,36 held that where deodar, kail and rai trees that are used for
building purposes are earmarked after ascertaining the required growth, silviculturally and some of them were felled
and other to be cut within a short period of time, the contract is for standing timber and not timber trees and
therefore of movable property. Hence, the documents for sale of these trees do not require registration, but where
the contract is with respect to land having bamboo clumps and trees and the intention was not to cut them within a
short period of time, rather they stood on the land for a period of ten years, it was held, that it is immovable
property.
In Jagdish v Mangal Pandey,37 the issue was whether the trees were movable or immovable property. The disputed
trees were in the nature of five bamboo clumps, 39 mango trees and one sheesham tree. With respect to bamboo
trees, whether they would be called immovable property or not, as the primary objective was to use them for
construction purposes, the court said:
…it is true that bamboos are also used for building purposes but they cannot be regarded as such until it is intended to cut
them for such use…one thing would be obvious that in the larger definition of immovable property any thing attached to the
earth would normally be treated as immovable property and a tree which is attached to the earth and seeks its nourishment
and sustenance from the soil in which it stands will be deemed to be attached to the earth with the only distinction that if it
was tree of a kind which is usually used as timber and was of sufficient size so as it could be used as such and is intended
to be severed from the soil reasonably thereafter, it may be treated to be movable property.
Therefore, apart from the size of the trees, the relevant consideration would be the intention to cut the tree or to let
it remain attached to the earth. In the former case, it will be termed as ‘standing timber’ while in the latter it must
remain immoveable property. Similarly in Banaras v Ghuhi Rai,38 the court said that the real test for judging whether
a tree is immovable or movable property is not the nature of the tree alone, but the way in which it is intended to be
dealt with. If the intention of the parties in respect of a particular transaction is that tree, whether that be a neem
tree or mango tree, is to be cut by the purchaser and removed, it will become timber, but if the intention is that it will
after the purchase, continue to grow and to yield fruit or shade, it may not be timber. In the matter of Raj Balamgir,39
a person had contracted to purchase standing timber in the forest of B, and had agreed that the wood of the forest
will be cut and removed within a year. The court held that the contract related to movable property. In Chhotabhai
Jethabai Patel & Co v State of Madhya Pradesh,40 the petitioners had entered into contract with the proprietors of
certain estates, under which they acquired the right to pluck, collect and carry away tendu leaves, to cultivate,
culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees called
hardwood and bamboos. The court held that these contracts did not create any interest either in the land or in trees
or in plants. In Nanhe Lal v Ram Bharosey,41 it was held that a grove consisting of shisham and neem trees will be
covered under the expression ‘standing timber’ and does not constitute immovable property. In Bharat Sebaigrass
Ltd v State of Madhya Pradesh,42 bamboos were held to be immovable property and when they were sold as so
attached, the transaction was treated as a sale of interest in land.
In State of Orissa v Titaghur Paper Mills Co Ltd,43 one of the contracts related to an agreement of the petitioners
company with state of Orissa for the purpose of felling, cutting and obtaining and removing bamboos from forest
areas for converting the bamboo into paper pulp, or for purposes connected with the manufacture of paper, or in
any connection incidental therewith. Thus, the company had the right to use all lands, roads and streams within, as
well as outside the contract areas for the purposes of free ingress to, and egress from, the contract areas. It was
also given the right to make dams across streams, cut canals, make water courses, irrigation works, roads, bridges,
buildings tramways and other work useful or necessary for the purpose of its business of felling, cutting and
removing bamboos for the purpose of converting the same into paper pulp or for purposes connected with the
manufacture of paper. For this purpose, they also had a right to use other forest produce. The agreement extended
to 14, 13 and 11 years with respect to different contract areas with an option to the company to renew the contract
for a further term of twelve years and it embraced not only bamboos which were in existence at the date of the
contract but also bamboos that were to grow and even come in existence thereafter. The court held that the
bamboo contract related to immovable property as a benefit to arise out of land and did not relate to a contract of
movable property. It was a single integral and indivisible contract which was not to be severed.
Growing Crops and Grass
The term “growing crops” refers to all vegetable growths that are in existence and practically have no existence
apart from their produce. A growing crop, therefore, will be a crop which may be in existence and in process of or
Page 5 of 8
coming to fruition.44 The mere fact that it is not yet in existence would not take it out of the character of the growing
crop.45 It includes paan leaves,46 sugarcane,47 tendu leaves, or timber,48 but does not include adjat, tendu plants,49
or a right to rear lac.50 The hypothecation of a sugarcane field is treated as referring to a sugarcane crop and would
not be an interest in immovable property.51 A transfer of a right to rear and pluck or take away fruit from trees
relates to the sale of growing crops,52 but the right of sowing, cultivating and harvesting crops is a lease of the trees
themselves and a right in immovable property.53
Grass again is movable property. However, the term ‘grass’ alone is not the determining criteria. It would be
movable property, but only when the intention is to sever it within a short time period and an agreement for the sale
and purchase of growing grass, not made with a view to their immediate severance and removal from the soil and
delivery as chattels to the purchaser is an agreement for the sale of an interest in immovable property i.e., land.54
For example, where A, the owner of a piece of land confers a right to B, to enter his land and cut grass for a period
of five years, the nature of right created in favour of B is a right in immovable property as B will take the benefit from
A’s land and will not take what is already ripe and ready.
Land
Land is immovable property. The term ‘land’, in its legal signification, includes any ground, soil or earth, such as
meadows, pastures, woods, moors, waters, marshes and heath; houses and other buildings upon it, the air space
above it;55 and all mines and minerals beneath it.56 It also includes anything fixed to the land, as well as growing
trees and crops, except those which, broadly speaking, are produced in the year by the labour of the year. A grant
of all the profits of land passes the whole land, herbiage, trees, mines and whatever is parcel of the land, but a
grant of a particular profit of or right in the land does not extend beyond such profit or right. For the purposes of
ownership, land may be divided horizontally, vertically or otherwise,57 and either below or above the ground. Thus,
separate ownership may exist in strata of minerals, in the space occupied by a tunnel,58 or in different storeys of a
building.59
‘Land’ is usually extended to include not only land in the physical sense, with all that is above it or underneath it, but
also all rights in the land and a right to share in the proceeds of sale of land under a trust for sale.60
For instance, sale of a fertilizer factory would include not only the land but also the plant and the machinery of the
factory.61 A house is immovable property, even where it is transferred to the other with an option to pull it down.62
Thus, where the donor made a gift of ‘my land’ to the donee, the land would also include the house that stood on
it.63 However, the owner of the land may not necessarily be the owner of its superstructure.64 In a decree for
partition of land belonging to joint family, a party cannot claim as of right a share in extracted minerals stored by the
other parties, as subsoil rights do not form a part of surficial rights of land.65
Benefits Arising out of Land
Benefits arising out of land or profits à prendre is immovable property.66 Where a person using his land makes a
profit, the right will be a right in immovable property. For example, a person has a vacant piece of land. Every year,
during the festival season, he uses the land for holding a fair, and for this purposes he charges Rs 1000 from each
stall-holder. This right to collect the charge from the stall-holders is profits a prendre, i.e., profits that he makes
using his land, and therefore a right in immovable property. Similarly, a right to take out by digging manure and
rubbish accumulated in specific trenches and drains and carry away is a benefit arising out of land.67 An agreement
to remove soil and earth from the land and to level the plot after removal of the soil is an agreement relating to
immovable property.68 A right to enter the lake and catch fish for a period of five years,69 or a right to catch fish from
the tank for a period of more than a year is a right in immovable property.70 A right to maliknama,71 a right to hold a
fair on one’s own land,72 a haat,73 an equity of redemption,74 an interest of mortgage in an immovable property,75 a
debt secured by a mortgage,76 a right to receive future rent and profits of land,77 and a vested remainder,78 are all
instances of rights in immovable property.
Things Attached to Earth
Things that are attached to earth become part of the earth and are hence called immovable property. This category,
under section 3 of the TP Act, 1882 is divided into three sub-parts. The first relates to things rooted in earth except
standing timber, growing crops and grass. The second relates to things that are embedded in earth as in the case
of walls and buildings, and the third relates to ‘attached to what is so imbedded in the earth for the permanent
beneficial enjoyment of that to which is attached’. It is the last category which needs detailed explanation, as it
relates to certain objects that were movable to begin with, but after attachment to something that is imbedded in
Page 6 of 8
earth, change their own character and become immovable or fixtures. For instance, if for convenience’s sake, bricks
are put on top of each other in a builder’s yard and form a wall, the bottom of this wall is attached to earth, yet at the
same time, this makeshift wall will not get the character of immovable property. However, if the same bricks were
used to construct a wall with cement or other construction material, it would be categorised as immovable property
as something embedded in earth.
15 The General Clauses Act, 1897, section 3(26).

16 The Registration Act, 1908, section 2(6).
17 Jagannath Minerals v State of Orissa, 2010 SCC Online Ori 253 : (2010) 109 CLT 782.
18 See Transfer of Property Act, 1882, section 3.
19 TA Sankuni v BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292]; Moti Singh v Deoki Singh, AIR 1936 Pat 46.
20 Chandi v Sat Narain, AIR 1925 Oudh 108.
21 Sheikh Jan Mohammad v Umanath Mishra, AIR 1962 Pat 440; Moti Singh v Deoki Singh, AIR 1936 Pat 46.
22 TA Sankunni v BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292].
23 Suresh Chand v Kundan, 2000 (7) Scale 620.
24 Shiv Dayal v Pattu Lal, AIR 1933 All 50.
25 Rajendra v Malhoo Khan, AIR 1929 Oudh 93.
26 Vellayappa Chetti v Subramania Chetti, AIR 1927 Mad 137 [LNIND 1926 MAD 316].
27 Ram Kumar v Krishna Gopal, AIR 1946 Oudh 106, 107.
28 Baijnath v Ramadhar, AIR 1963 All 214 [LNIND 1962 ALL 179].
29 Baijnath v Ramadhar, AIR 1963 All 214 [LNIND 1962 ALL 179].
30 Ram Kumar v Krishan Gopal, AIR 1946 Oudh 106.
31 Kunhikoya v Ahmed Kutty, AIR 1952 Mad 39 [LNIND 1951 MAD 177].
32 Pirthidin v Ramlal, AIR 1926 Oudh 136; see also Krishna Rao v Babaji, (1900) ILR 24 Bom 31.
33 TA Sankuni v BJ Philips, AIR 1972 Mad 272 [LNIND 1971 MAD 292].
34 State of Himachal Pradesh v Motilal Pratap Singh, AIR 1981 HP 8 [LNIND 1980 HP 27].
35 AIR 1958 SC 532 [LNIND 1958 SC 28]: (1959) SCR 265 [LNIND 1958 SC 28].
36 AIR 1981 HP 8 [LNIND 1980 HP 27].
37 AIR 1986 All 182 [LNIND 1985 ALL 285].
38 AIR 1956 All 680 [LNIND 1956 ALL 46].
39 AIR 1931 All 392.
40 AIR 1953 SC 108 [LNIND 1952 SC 100].
41 AIR 1955 NUC 5612 (Cal).
42 AIR 1985 SC 1293 [LNIND 1985 SC 400]: (1985) Supp SCC 280.
43 AIR 1938 All 115.
44 Imamali v Rani Priyabati, AIR 1937 Ngp 250.
45 Raja Devi v Mohd Yaqub, AIR 1925 All 411.
46 Atma Ram v Dama, (1897) 11 CPLR 87.
47 Kalka v Chandan, (1888) 10 IA 20.
48 Chhotabhai v Madhya Pradesh, AIR 1953 SC 108 [LNIND 1952 SC 100]; see also Mohanlal v CIT, AIR 1949 PC 311,
wherein it was held that a right to cut pick and carry away leaves is a right in movable property and does not create any
interest in the land.
49 Mahadeo v State of Bombay, AIR 1959 SC 735 [LNIND 1959 SC 29].
Page 7 of 8
50 Kamal Singh v Kali Mahton, AIR 1955 Pat 402.

51 Kalka v Chandan, (1888) 10 IA 20.
52 Manoharlal Rameshwardas v State of Madhya Pradesh, AIR 1959 MP 120.
53 Ibid.
54 Mahabir Prasad v Enayat Elahi, AIR 1951 All 608 [LNIND 1950 ALL 362].
55 As to invasion of air space above the land, a distinction is drawn between structures standing on the land of a
neighbour and overflying aircraft, balloons, bullets or missiles: Anchor Brewhouse Developments Ltd v Berkley House
(Docklands Developments) Ltd, (1987) 2 EGLR 173 at 175–176. Despite earlier controversy as to whether invasion of
air space gives rise to a cause of action in trespass or only in nuisance, in which case damage is required to be proved,
it now appears that any invasion by a structure standing on the land of a neighbour is a trespass; Anchor Brewhouse
Developments Ltd v Berkley House (Docklands Developments) Ltd, supra; Wandsworth District Board of Works v
United Telephone Co, (1884) 13 QBD 904 (CA); Gifford v Dent, (1926) WN 336; Kelsen v Imperial Tobacco Co (of
Great Britain and Ireland) Ltd, (1957) 2 QB 334, (1957) 2 All ER 343; Ward v Gold, (1969) 211 Estates Gazette 155.
See also Pickering v Rudd, (1815) 4 Camp 219, but see Kenyon v Hart, (1865) 6 B&S 249 at 252 per Blackburn J
arguendo. Otherwise, the rights of an owner in the air space above his land are restricted to such a height as is
necessary for the ordinary use and enjoyment of that land; Berstein of Leigh (Baron) v Skyviews & General Ltd, (1978)
QB 479, (1977) 2 All ER 902. It would seem that the cause of action for infringement of those rights would also be in
trespass; Berstein of Leigh (Baron) v Skyviews & General Ltd, supra, but see also Clifton v Viscount Bury, (1887) 4
TLR 8.
56 The extent of its legal signification has usually been expressed in the maxim cujus est solum, ejus est usque ad coelum
et ad inferos (to whom belongs the soil, his it is, even to heaven and to the middle of the earth). A conveyance of land
prima facie includes everything directly beneath the surface of the land conveyed and the space directly above;
Laybourn v Gridley (1892) 2 Ch 53; Corbett v Hill, (1870) LR 9 Eq 671; Wandsworth District Board of Works v United
Telephone Co, (1884) 13 QBD 904, 915 (CA); Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd, (1957) 2
QB 334 : (1957) 2 All ER 343 (air space above); Grigsby v Melville, (1973) 3 All ER 455 : (1974) 1 WLR 80 (CA);
Straudley Investments Ltd v Barpress Ltd, (1987) 1 EGLR 69, 70 (CA) (air space above); Davies v Yadegar, (1990) 1
EGLR 71 (CA) (air space above); Haines v Florensa, (1990) 1 EGLR 73 (CA) (air space above). For a critique of the
cujus est solum maxim; see Railways Commr v Valuer-General, (1974) AC 328, 351, (1973) 3 All ER 268, 277 (PC).
57 Railways Commr v Valuer-General, (1974) AC 328 : (1973) 3 All ER 268 (PC). See also Re Metropolitan District Rly.
Co and Cosh, (1880) 13 ChD 607, CA.
58 See Bevan v London Portland Cement Co Ltd, (1892) 67 LT 615; Metropolitan Rly Co v Fowler, (1893) AC 416 (HL).
The grant of the exclusive use of pipes or wires is, however, an easement (see e.g. Simmons v Midford, (1969) 2 Ch
415 : (1969) 2 All ER 1269) as, apparently, is the grant of the exclusive use of a burial vault (see e.g. Bryan v Whistler,
(1828) 8 B&C 88).
59 Corbett v Hill, (1870) LR 9 Eq 671. Whether a room projecting over neighbouring premises carries ownership of the
column of air above, depends on the circumstances, Corbett v Hill, supra. The conveyance of a dwelling house may
pass the footings and eaves, where they extend beyond the surface boundary, but not the column of air between them,
Truckell v Stock, (1957) 1 All ER 74 : (1957) 1 WLR 161 (CA).
60 Stevens v Hutchinson, (1953) 1 All ER 699; Perry v Phoenix Assurance plc, (1988) 3 All ER 60 : (1988) 1 WLR 940;
see also Harman v Glencross, (1985) Fam 49, (1986) 1 All ER 545 (CA) (Charging Orders Act, 1979 section 3(5)).
However, in many cases the phrase ‘interest in land’ was held to include a share in the proceeds of sale of land held on
trust for sale; Cooper v Critchley, (1955) Ch 431 (1955) 1 All ER 520 (CA); Elias v Mitchell, (1972) Ch 652 : (1972) 2 All
ER 153; Williams and Glyn’s Bank Ltd v Boland, (1981) AC 487, (1980) 2 All ER 408 (HL). Similar interests have been
held to be interests in land for the purposes of other enactments; see Kirkland v Peatfield, (1903) 1 KB 756; Re
Hazeldine’s Trusts, (1908) 1 Ch 34 (CA); Re Fox, Brooks v Marston, (1913) 2 Ch 75; Re Witham, Chadburn v Winfield,
(1922) 2 Ch 413; Re Jauncey, Bird v Arnold, (1926) Ch 471. An option to purchase a leasehold interest is an interest in
land (Stromdale and Ball Ltd v Burden, (1952) Ch 223, (1952) 1 All ER 59); but a right of pre-emption is not an interest
in land for the purposes of the general law (Pritchard v Briggs, (1980) Ch 338 : (1980) 1 All ER 294 (CA)). For the
meaning of ‘agricultural land’ under the Inheritance Tax Act, 1984 see Starke v IRC, (1996) 1 All ER 622, (1995) 1 WLR
1439 (CA). Growing crops may be an interest in land as are agreements for leases.
61 Duncans Industries v State of Uttar Pradesh, AIR 2000 SC 355 [LNIND 1999 SC 1096]: (2000) 1 SCC 633 [LNIND
1999 SC 1096].
62 Punnayya v Venkatappa, AIR 1926 Mad 343.
63 Commr. of Gift Tax v IP Soni, ILR 1981 Delhi 5630 : [1982] 136 ITR 838 (Delhi).
64 Shivashakti Builders and Financial Co Ltd, Re (2010) 158 Comp Cas 237 Pat.
65 K Thippanna v Varalakshmi, (2012) 3 SCC 576 [LNIND 2012 SC 1512] : 2012 (3) Scale 34 [LNIND 2012 SC 142].
66 See the Registration Act, 1908, section 2(6) and the General Clauses Act, 1882 section 3(26).
Page 8 of 8
67 Haji Sukhan Beg v Board of Revenue, AIR 1979 All 310.

68 Kanjee and Mooljee v Shanmugam, AIR 1932 Mad 734 [LNIND 1932 MAD 119].
69 Anand Behara v State of Orissa, AIR 1956 SC 17 [LNIND 1955 SC 84]; see also DS D’Souza v MR Wagle Trust, AIR
1979 Goa 19.
70 Santosh Jayaswal v State of Madhya Pradesh, AIR 1996 SC 207 [LNIND 1995 SC 895]: 1995 (6) SCC 520 [LNIND
1995 SC 895].
71 Chauraman v Bali, (1887) ILR 9 All 591.
72 Ganpati v Ajmer, (1955) 1 SCR 1065 [LNIND 1954 SC 168].
73 Surendra Narain v Bhailal, (1895) ILR 22 Cal 752.
74 Umesh Chunder v Zahur Fatima, (1891) ILR 18 Cal 164.
75 Prahlad Dalsukhrai v Maganlal Muljibhai Tewar, AIR 1952 Bom 454 [LNIND 1952 BOM 7]; Jang Bahadur v Bhagat
Ram, AIR 1930 All 110; Paresh v Nabogopal, (1902) ILR 29 Cal 1.
76 Sakhiuddin v Sonaullah, 22 Cal WN 641; see also Anandilal v Keshaodeo, (1945) ILR 2 Cal 526; Shiv Rao v Offcial
Liquidator, AIR 1940 Mad 140 [LNIND 1939 MAD 221]; wherein it was held that a mortgage decree is immovable
property. See also Lalumrao v Lal Singh, AIR 1924 All 796. A debt secured for the purposes of attachment and setting
aside of the sale is a movable property.
77 ME Moola Sons v Official Assignee, AIR 1936 PC 230.
78 Budhiraju v Vullipalam, AIR 1939 Mad 802 [LNIND 1939 MAD 122].
End of Document
DOCTRINE OF FIXTURES
To understand under what circumstances a chattel (movable) becomes a fixture (immovable), we have to
understand the doctrine of fixtures. Under English law, the doctrine of fixtures is explained and understood with the
help of two maxims. These maxims clarify the ownership issues of the attachment. The two maxims are:
(i) Quicquid plantatur solo, solo cedit, which means whatever is planted in the earth, becomes part of the
earth, and consequently whosoever owns that piece of earth will also own the thing planted.
(ii) Quicquid inaedificatur solo, solo cedit, which means whatsoever is built into or embedded into or attached
to soil becomes part of the earth and consequently, whosoever is the owner of that piece of land will also
become the owner of the thing attached/built in or embedded.
The application of these doctrines is subject to two exceptions.
(i) The first is that they apply only when there is no contract to the contrary. For example, on the land
belonging to A, B installs a pump and machinery to draw water. These are fixed to the earth with the help
of construction of cement foundation. The contract between A and B stipulates that the ownership of the
pump and machinery will continue to be with B. The doctrine will have no application here.
(ii) The second exception relates to the trade fixtures fixed by a tenant. The term ‘trade fixtures’ refers to all
those things attached or affixed by a tenant on the land of the other, which are necessary for him for the
purpose of carrying on his trade. For example, A, the owner of a piece of land gives it to B, who is in the
banking business. Along the cabin of the cashier, he installs heavy iron gates that are imbedded in earth.
Even if there is no contract to the contrary, the ownership of the iron gates will continue to vest in B.
Indian Law Relating to Fixtures
The English Law of fixtures does apply in India but with serious modifications. The maxim of English law, quicquid
plantatur solo, solo cedit i.e., ‘whatever is affixed to the soil belongs thereto’ does not generally apply in India.79
Here, there are two rules that determine the entitlement issues, with respect to the things attached to or embedded
in land by a person other than the owner. These rules apply only when this person was in lawful occupation of the
property and was not a trespasser.
(i) The first rule is that he is entitled to remove the attachment if he vacates the premises provided he leaves
the land in the same state as it was previous to the attachment.
(ii) The second rule is, that if he allows the attachment or improvement to remain on the land of the owner, so
that the owner derives a benefit from it, he is entitled to compensation for the value of the attachment or
improvement.80 This rule was laid down in Thakoor Chunder v Ramdhone81 and was subsequently also
approved by the Privy Council in the Narayan Das82 case.
Though there is a significant departure from the English law of fixtures, yet, the Indian judiciary often takes the help
of English cases to decide the question of when a chattel becomes a fixture. The issue may not appear difficult at a
glance, for example, what is fixed to earth can be called immovable or a fixture but problem or confusion may arise
in some cases. An anchor of a big ship is firmly embedded in earth, but it can hardly be called a fixture. Similarly,
tapestries hung on the walls that can be removed easily, though attached to the walls, will be termed chattels. This
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question, that what is that sufficient attachment that will convert the character of a thing to make it a fixture from a
chattel, has tremendous practical importance. For example A, the owner of a house professes to sell it to B and
invites him for inspecting it. At the time of inspection, the house has an iron gate in the front, show cases made of
wood that were fixed in the walls, electrical fittings etc. After the contract is concluded, whatever are the fixtures
they will pass along with the house to B, and A is not empowered to remove them. He can remove only chattels.
There are three tests to ascertain whether a chattel after attachment has become a fixture or not.
(i) Mode of attachment and consequences of its detachment: The first test is the mode of attachment of the
thing and consequences of its detachment. If a thing or machinery because of its sheer weight goes down
in earth; the presumption will be that it is still movable. On the other hand if in attaching it some external aid
is required such as construction of foundation, or it is fixed to the floor with the help of nuts and bolts, the
presumption will be that it has become part of earth. How easily the object can be removed, has also to be
taken into account. If in trying to remove it, no damage is caused to the thing and also to something to
which it was attached in other words, the attachment can be removed easily without causing sufficient
damage to which it was attached, the presumption will be that it is movable, but if in trying to remove it, the
attachment is destroyed or loses its value or the support is sufficiently damaged, the presumption will be
that the attachment had become part and parcel of that to which it was attached. The rule is that you
cannot destroy the principal thing by taking away the accessory to it.83
(ii) Object or intention of attachment: The second test is the object or intention of attachment. Though the
consequences will depend upon the facts and circumstances of each case, but where the object is to fix
the attachment permanently or for a sufficiently long time period, the presumption will be that it has
become a fixture, but if the intention was to enjoy the attachment for a specific short duration and then to
remove it, the presumption will be that it is still a chattel.
(iii) By whom attached: The third and the last test is ‘by whom attached’. The basic presumption is that nobody
would want to make a permanent improvement of the land belonging to some other person. Thus, if the
attachment is by the owner of the land, the presumption would be very strong that the attachment has
become a fixture, but if it is attached by somebody else other than the owner, such as a tenant, a licencee
or a mortgagee, the presumption would be that it is still a chattel.
Attached to what is Embedded
The question whether any attachment embedded in the earth or permanently fastened to any thing attached to
earth is movable or immovable property is therefore, a mixed question of law and fact, depending upon the facts
and circumstances of each case.84 The tests are as aforesaid, to see what is the intendment, object, and purpose of
attachment; whether it is for the beneficial enjoyment of the building, land or structure, or the enjoyment of the very
attachment, and the degree or manner of attachment or annexation or the enjoyment of it to the earth.85 If the mode
of attachment is that it is embedding in the earth as in the case of walls and buildings, or if the object of the
attachment is for the permanent beneficial enjoyment of the land to which it is attached, the property would be an
immovable property.86 Thus, where a person erects machinery of his own on a land belonging to another, there is a
presumption that the machinery is erected by him either as a licensee or as a temporary tenant, and the machinery
does not form part and parcel of the immovable property to which it is attached for the time being.87 If the degree of
annexation is such that the fixture cannot be taken away without destroying the principal, it would be regarded as
immovable property,88 e.g., copper stills placed upon two iron rails in a distillery which could be removed by pulling
down the brick and mud wall put up on one side for the purpose of keeping them in position,89 equipment of a
touring cinema, being collapsible and easily removed, are movables90 but a petrol engine mounted and fastened to
a cement base is immovable property, as its fixation on earth is for the beneficial enjoyment of the property during
its lease.91 A boiler, an engine and a decorticator fixed and embedded in a ginning and decorticating factory
building are immovable property, as they were fixed for the beneficial use of the building as a factory.92 Where the
main machine of the mill is installed on a small platform, and held in position by being attached to iron pillars fixed
to the ground to a depth of nearly six to seven feet, the plant and the machinery are immovable properties, the main
consideration being the object of annexation.93 Where the tenant is running an ice factory in the premises of
another, it will be presumed that he installs the same with the intention of removing it at the determination of the
tenancy and it would therefore not be an immovable property.94 In considering whether a chattel in a particular case
is imbedded in the earth so as to become immovable property, the test of mode of annexation and degree of
annexation has been applied in India.95
Case Laws
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In Holland v Hodgson,96 while holding that looms attached to earth and floor of a worsted mill were fixtures
Blackburn J held:
…the general maxim of the law is that what is annexed to land becomes part of the land; but it is very difficult if not
impossible to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must
depend on the circumstances of each case and mainly on two circumstances indicating the intention viz the degree of
annexation and the object of annexation.
In Leigh v Taylor,97 the House of Lords held that certain valuable tapestries affixed by a tenant to the walls of a
house for the purpose of ornament and for better enjoyment of them as chattels had not become part of the house,
and therefore retained their character as chattels.
In Duncan Industries Ltd v State of Uttar Pradesh,98 a transfer was effected of “freehold land and residential
building, comprising a guest house, residential flats; and plant and machinery relating to the fertilizer business
including the ammonia manufacturing plants, the captive power plant and all other movable capital assets including
vehicles, furniture, air-conditioners, stand-by systems, pipelines, railway siding etc., all of which relate exclusively to
the fertilizer business”. The facts of the case were as follows:
1. The entire fertilizer business was sought to be transferred by the transferor, to the transferee through a
conveyance deed;
2. The deed however mentioned that the possession of related plant and machinery of this business was
already completed through delivery of possession of the property as they were movables and therefore
they were excluded from the written conveyance deed. Further, while calculating the stamp duty payable to
the authorities on this transfer, the transferor did not include the value of said plant and machinery.
Accordingly, the stamp duty was calculated on the value of only the land and not the value of the related
plant and machinery.
3. The collector on a complaint by the sub-Registrar about the improper valuation of the property for
calculation of levy of stamp duty, conducted an enquiry and levied around Rs 37 crores as duty and
another Rs 30 lakhs as penalty. The collector had also included the value of the related plant and
machinery as in their opinion the same being fixed permanently to the land and being also an integral part
of the entire business were part of immovable properties themselves and their value needed to be included
while calculating the stamp duty. Further, as they were immovable properties, their transfer could not be
completed through mere delivery of possession of property and had to be effected through the conveyance
deed in a proper manner.
The court, therefore, had to deliberate on the character of the plant and machinery related to the fertilizer business.
If the same were movables, they were not required to be included in the conveyance deed for the purposes of
valuation and their transfer could validly be effected through delivery of possession of the property but if the same
were immovable properties, not only their value had to be included in the value of the property conveyed through
the conveyance deed, their transfer could only be effected through the transfer deed and a transfer sought to be
effected by mere delivery of possession of the property would not convey any title in favour of the transferee.
The High Court concluded that the machineries which formed the fertilizer plant, were permanently embedded in
the earth with an intention of running the fertilizer factory and while embedding these machineries the intention of
the party was not to remove the same for the purpose of any sale of the same either as a part of a machinery or
scrap and in the very nature of the user of these machineries, it was necessary that these machineries be
permanently fixed to the ground. Therefore, these machineries were immovable properties which were permanently
attached to the land in question. The Supreme Court upheld the view of the High Court and observed that the
question whether machinery which is embedded in the earth is movable property or an immovable property,
depends upon the facts and circumstances of each case. Primarily, the court will have to take into consideration the
intention of the parties when it decided to embed the machinery whether such embedment was intended to be
temporary or permanent. On a careful perusal of the agreement of sale and the conveyance deed along with the
attendant circumstances and taking into consideration the nature of machineries involved, the court said that the
machineries which have been embedded in the earth to constitute a fertilizer plant, are definitely embedded
permanently with a view to utilise the same as a fertilizer plant. Their description shows that they were set up
permanently in the land with a view to operate a fertilizer plant and the same was not embedded to be dismantled/
removed for the purpose of sale as machinery at any point of time. The purpose for which these machines were
Page 4 of 7
embedded was to use the plant as a factory for the manufacture of fertilizer at various stages of its production.
Hence, the contention that the machines should be treated as movables was not accepted. The court also rejected
the claim of the party that the plant and machinery being immovable property could have been transferred by
delivery of possession on any date prior to the date of conveyance of the title to the land.
Specifically on the question as to whether the transferor did transfer the title of the plant and machinery by the
conveyance deed, the court said, that what was agreed to be sold was the entire business of fertilizer on an “as is
where is” basis including the land, building thereon, plant and machinery relating to fertilizer business and the
possession of plant and machinery was not handed over separately to them by the vendor. These machineries
were neither actually dismantled and handed over, nor was it possible to visualise from the nature of the plant that
was involved that such a possession de hors the land could be given by the vendor to the appellant. The court did
observe that the document in question was attempted to be drafted as a Conveyance Deed regarding the land only
so as to reduce the market value of the property. The land with standing fertilizer factory was conveyed under the
deed, and an unsuccessful attempt to camouflage this part of the property was made in the recitals. The court also
noted that the transferor in an earlier application filed before the Income-Tax Department had himself disclosed the
market value of the land as Rs 70 crores which is the figure found in the agreement of sale which includes the sale
of plant and machinery along with the land. It included plant and machinery, railway sliding and other immovable
properties as part of the fertilizer business undertaking. It, therefore, concluded that no title was so transferred by
delivery of possession of the property and since the property in question was immovable property, the same was
transferred through the conveyance deed and since it was not valued, the action of the Registrar was proper.
However, it does not mean that in all cases where the machinery is attached to or embedded in earth, it would be
categorised as immovable property. It would depend upon the facts and circumstances of each case where the
machinery is attached to the earth only because of its operational efficiency, and removed from the base easily, it
would continue to be called movable property.99
In Bamdev Panigrahi v Monorama Raj,100 a person, A, was conducting a business under the name of ‘Kumar
Touring Talkies’. He obtained land under possessory mortgage from the Raja of Mandasa in 1957, and built a
temporary cinema structure and erected a temporary pandal over it. For the purposes of exhibiting cinema shows,
he purchased a cinema projector and a diesel oil engine. This equipment was embedded and installed in earth by
construction of foundation. For the purpose of running the cinema shows, A, applied and got a license that was
purely temporary for a period of one year from the concerned authorities. He allegedly entrusted the management
of this business to his friend B, out of trust and confidence in him. However, B colluded with the Rajah and obtained
the mortgage in his name. A issued a notice in May 1961, calling upon B to render correct account of the
management of the entire cinema concern including the machinery, equipments, records, etc. B denied his liability
to account for the management of Kumar Touring Talkies by a written reply in June 1961. A became sick in 1963,
and continued to be so till Aug 1965, when he died. Thereupon, A’s widow W filed a suit in July 1966, praying for a
declaration that she was the owner of Kumar Touring Talkies, and a direction that the equipment including the
cinema projector and the diesel oil engine be returned to her. This case illustrates the importance of understanding
the distinction between movable and immovable property. The court, in such cases, even before going into the
merits of the case, has to decide the character of the property. If it comes to the conclusion that the disputed
property is immovable, it will go ahead and decide the case on merits, and if it concludes that such property is
movable, then the case will be dismissed as time barred, it having been filed after more than three years from the
date the right or claim was denied, i.e., B had denied the claim of A in June 1961 while the suit was filed in this
respect in July 1966 after more than five years. The law of limitation prescribes a limitation period of three years in
case of movables. The court here noted that the operation of the business by its very name, ‘Kumar Touring
Talkies’ showed that exhibiting cinema shows at a specific place was purely temporary. Therefore, even if the two
items of disputed property were attached and embedded in earth, the intention can only be to have them affixed to
earth temporarily. The license to exhibit the shows was only for a period of one year, and there was no guarantee
that the owner would have applied for its renewal or the authorities would have renewed it. Thirdly, the person who
fixed them to the land was not the owner of the land. These items were in fact removed from the land subsequently.
The court held that these were movable properties and the suit being time barred was dismissed.
Things Permanently Attached to what is Embedded in the Earth, for the Permanent Beneficial Enjoyment of
that to which it is Attached
With respect to the last category, i.e., things permanently attached to what is embedded in the earth, for the
permanent beneficial enjoyment of that to which it is attached, the requisite factors here are that:
Page 5 of 7
(i) Firstly, it must be a permanent attachment, i.e., intended to be used in perpetuity or till the life of the
attachment.
(ii) Secondly, its attachment constitutes a permanent improvement to the thing to which it is attached.
For instance, fans and tube lights holders are permanently attached to the walls/ceilings of a room, the later being
immovable property. These attachments are permanent, and are for the better enjoyment of the room, i.e., to which
they are attached, and therefore would be termed immovable property. Similarly, take the case of a well in a field.
On the top of the well is a two feet wall and a pulley is attached to it with nuts and bolts. If the character of the pulley
attached to the well has to be ascertained, factors to be considered would be; first that it is permanently attached to
what is embedded in the earth—in this case, the wall of the well, the well-being immovable property and secondly,
the attachment helps us to enjoy which property in a beneficial manner. Do we enjoy the pulley (chattel) with the
help of the wall and the well (immovable property) or do we enjoy the well, with the help of the pulley, i.e., is the
pulley a permanent improvement on the well? If it is, then this in itself, becomes a part of well and therefore would
be categorised as immovable property.
Other Instances of Immovable Property
In a nutshell, immovable property includes land, benefits arising out of land and things attached to earth,1 or
permanently fastened to any thing attached to earth.2 It also includes buildings,3 hereditary allowances and offices,4
right of way,5 lights,6 a right to ferry,7 fisheries.8 A fruit bearing tree, a rubber tree,9 standing trees,10 or a timber tree
which is in the process of growth and is taking nourishment from the soil for its sustenance,11 will be immovable
property. Trees which are merely saplings at the time of the agreement, are part of the land and would vest in the
transferee.12 Where, at the time of the agreement to sell land there are only plants and saplings on the land but later
due to denial by the owner to execute the sale deed the buyer institutes a suit for specific performance, and the
plants grow into full fledged trees during 25 years of litigation, unless there is an express agreement to exclude
these trees, they form part of the land and pass with the land to the buyer.13 In a sale for land, the fact that the well,
tube well, room and trees are standing on the land are not specifically mentioned in the agreement, is not relevant
as they formed part of land.14 Immovable property does not include standing timber, growing crops and grass.15
Movable Property
Standing timber,16 growing crops,17 grass,18 fruits upon trees19 are illustrations of movable property.20 Sugar stored
in a godown,21 a pala or turn of worship,22 a right to recover maintenance though charged on land,23 a royalty,24 a
decree for the sale of immovable property,25 a decree for arrears of rent,26 are movable property. Where the plaintiff
assigned the copyright of all his works, of literary, dramatic or musical nature of the film, it was held that what he
assigned was a right in movable property.27
Copper stills placed upon two iron rails in a distillery building, which could be removed by pulling down the brick and
mud wall put up on one side for the purpose of keeping them in position,28 machinery owned by one person but
attached to the land belonging to another person with the intention of removing it,29 machinery fixed in a house for
baling cotton,30 and a cinema projector and a diesel oil engine fixed on earth for the purposes of exhibiting shows in
a touring cinema, are movable properties.31
Under Indian law there can be a valid mortgage of movable property.32 Transfer of possession of goods is not a
mandatory requirement in mortgage of movable property.33
Water and Sludge
Water is movable property, and therefore, an agreement to pay a specific sum of money for the maximum water
drawn at any time will be a right in movable property.34 ‘Sludge in a tank, and just when it is taken out of the
sedimentation tank is again movable property as though very much akin to earth or land, it is not a part of the land.
If a large quantity of sludge is taken out of the land and is stored on land it does not lose the character of sludge
and become a part of the land, unless it is allowed to remain there for a long time as to become a part of the land.
When stored in a lagoon, it retains the character of sludge, and cannot be treated as immovable property.’35
Page 6 of 7
79 Commissioner for Central Excise, Ahmedabad v Solid and Correct Engineering Works, (2010) 5 SCC 122 : 2010 (252)
ELT 481 (SC); Mammunhi v Kunhibi, AIR 1961 Ker 147; Jnan Chand v Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959
CAL 186].
80 See Narayan Das Khettry v Jatindranath, AIR 1927 PC 135 : (1927) ILR 54 Cal 669; Kochunni Kartha v Raman, AIR
1967 Ker 22; (1966) 2 Ker 211 : (1866) 6 WR 228 in 1866.
81 (1868) 6 WR 228.
82 Narayan Das Khettry v Jatindranath, AIR 1927 PC 135 : (1927) 54 Cal 669.
83 The mere attachment to earth does not qualify a plant to be treated as immovable property and to qualify as immovable
property, the attachment has to be for the permanent beneficial enjoyment of the land and should not have separate
existence devoid of the land; See Commissioner for Central Excise, Ahmedabad v Solid and Correct Engineering
Works, (2010) 5 SCC 122 : 2010 (252) ELT 481 (SC).
84 Bamadev Panigrahi v Monorama Raj, AIR 1974 AP 226 [LNIND 1973 AP 66].
85 Ibid.
86 Jnan Chand v Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186].
87 Subramanian v Chidambaram, AIR 1940 Mad 527; Subbiah v Govindrao, AIR 1953 Ngp 224; Addu Achiar v Custodian
Evacuee Property, AIR 1952 Hyd 14.
88 Addu Achiar v Custodian Evacuee Property, AIR 1952 Hyd 14; Md Ibrahim v Northern Circars Fibre Trading Co
Coconada, AIR 1944 Mad 492 [LNIND 1944 MAD 117].
89 Narayana Sa v Balaguruswami, AIR 1924 Mad 187 [LNIND 1923 MAD 125].
90 Bamadev Panigrahi v Monorama Raj, AIR 1974 AP 226 [LNIND 1973 AP 66]; Board of Revenue v Venkataswamy
Naidu, AIR 1955 Mad 620 [LNIND 1955 MAD 59].
91 Perumal Naichker v Ramaswami Kone, AIR 1969 Mad 346 [LNIND 1967 MAD 177].
92 J Kuppanna Chetty & Co v Collector of Anantpur, AIR 1965 AP 457 [LNIND 1964 AP 141].
93 Ibid.
94 Addu Achiar v Custodian Evacuee Property, AIR 1952 Hyd 14.
95 Chatturbhuj v Bennet, (1905) ILR 29 Bom 323; Addu Achiar v Custodian Evacuee Property, AIR 1952 Hyd 14.
96 (1872) 7 CP 328, 334.
97 (1902) AC 157 at 161.
98 (2000) SCC 633.
99 Sirpur Paper Mills Ltd v CCE, (1998) 1 SCC 400 [LNIND 1997 SC 2083].
100 AIR 1974 AP 226 [LNIND 1973 AP 66].
1 Shantabai v State of Bombay, (1959) SCR 265 [LNIND 1958 SC 28]; see The Transfer of Property Act, 1882, section 3;
see the General Clauses Act, 1882, section 3(26); Indian Registration Act, 1908, section 2(6).
2 See the General Clauses Act, 1882, section 3(26).
3 See Indian Registration Act, 1908 section 2(6).
4 Balwant v Parshottam, 9 BHRC 99; Raghoo v Kassy, 10 IC 73.
5 Bejoy v Banku, (1908) 13 Cal WN 451, 9 Cal LJ 336.
6 See the Registration Act, 1908, section 2(6).
7 Krishna v Akilanda, (1885) 13 Mad 54.
8 Braja v Mani, (1951) SCR 431 [LNIND 1951 SC 23]; Shibu v Gopi, (1897) ILR 24 Cal 449.
9 Joseph v Joseph Annama, AIR 1979 Ker 219 [LNIND 1979 KER 9].
10 Divisional Forest Officer Himachal Pradesh v Daut, (1968) 2 SCR 112 [LNIND 1967 SC 311].
11 Shantabai v State of Bombay, (1959) SCR 265 [LNIND 1958 SC 28].
12 Suresh Chand v Kundan, (2000) 7 Scale 620.
13 Ibid.
14 Joseph v Joseph Annama, AIR 1979 Ker 219 [LNIND 1979 KER 9].
Page 7 of 7
15 Hakim Singh v Ram Sanehi, AIR 2001 All 231 [LNIND 2001 ALL 243], 233.
16 Shantabai v State of Bombay, AIR 1958 SC 532 [LNIND 1958 SC 28]; Ram Kumar v Krishna Gopal, AIR 1946 Oudh
106; Baijnath v Ramdhar, AIR 1963 All 214 [LNIND 1962 ALL 179].
17 Imamali v Rani Priyabati, AIR 1937 Ngp 250, (1938) ILR Nag 31; Atma Ram v Dama, (1897) 11 CPLR 87; Kalka v
Chandan, 10 IA 20; Raja Devi v Mohd Yaqub, AIR 1925 All 411; Manohar Lal v State of Madhya Pradesh, AIR 1959
MP 120.
18 See the Transfer of Property Act, 1882, section 3.
19 See the Registration Act, 1908, section 2(9).
20 See the General Clauses Act, 1897, section 3(36), wherein it has been defined as property of every description except
immovable property. See The Transfer of Property Act, 1882, section 3; Shantabai v State of Bombay, AIR 1958 SC
532 [LNIND 1958 SC 28]; Ram Kumar v Krishna Gopal, AIR 1946 Oudh 106, 107; Baijnath v Ramdhar, AIR 1963 All
214 [LNIND 1962 ALL 179]; Kalka v Chandan, 10 IA 20; Raja Devi v Mohd Yaqub, AIR 1925 All 411; Manohar Lal v
State of Madhya Pradesh, AIR 1959 MP 120.
21 Jatikar v Mukunda, 16 Cal WN 122, 14 Cal LJ 369.
22 Altaf Begam v Brij Narain, (1929) ILR 51 All 612 : AIR 1929 All 281.
23 Ibid.
24 Gous Mohammad v Khwas Ali, AIR 1923 Cal 450.
25 Sheogovinda v Gouriprashad, AIR 1925 Pat 310.
26 Venkatachalam v Venkatarami, AIR 1940 Mad 929 [LNIND 1940 MAD 163].
27 Gramophone Co of India Ltd v Shanti Films Corpn., AIR 1997 Cal 63 [LNIND 1996 CAL 125].
28 Narayana Sa v Balaguruswami, AIR 1924 Mad 187 [LNIND 1923 MAD 125].
29 JH Subbiah v Govindrao, AIR 1953 Ngp 224.
30 Meghraj v Krishna Chandra, AIR 1924 All 365.
31 Bamadev v Monorma Raj, AIR 1974 AP 226 [LNIND 1973 AP 66].
32 State Bank of India v SB Shah Ali, AIR 1995 AP 134 [LNIND 1994 AP 101].
33 Tehil Ram v Langin D’Mello, AIR 1916 Bom77.
34 Chief Controlling Revenue Authority v AB Project, AIR 1979 All 355.
35 Jnanchand v Jugal Kishore, AIR 1960 Cal 331 [LNIND 1959 CAL 186].
End of Document
ATTESTATION
ATTESTATION
The Transfer of Property Act, 1882, S. 3
“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 acknowledgment 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;
End of Document
GENERAL PRINCIPLE
GENERAL PRINCIPLE
For the transfer of immovable property, the owner has to comply with three basic formalities. The execution of a
proper written transfer deed is the first requirement. It has to be executed, i.e., signed by the transferor. The second
is that it has to be properly attested and the third, that it should be duly registered. Till all three requisites are met
with, no title or right would pass from the transferor to the transferee. Thus, proper attestation is an important
element in the transfer of property. The purpose sought to be achieved by making attestation a mandatory
requirement is the verification of voluntary execution of the transfer deed in case of doubts or express denial by the
transferor with respect to transfer of property. It also protects the executant from being required to execute a
document by the other party thereto by force, fraud or undue influence.36
Legislative and Judicial Developments with respect to the Concept of Attestation
According to section 3 of the TP Act, 1882, for a valid attestation a minimum of two competent witnesses must
testify the proper execution of the transfer deed. It is important to note that when the Act was passed in 1882, it did
not contain the definition of ‘attestation’. However, this term as explained in the Indian Succession Act, 1865,
implied that for a valid attestation, the attesting witness could either be present at the time of execution of the deed,
or if not present at the time when transferor signed, could receive a personal acknowledgement from him, and then
attest it. Under English law on the other hand, attesting after receiving a personal acknowledgement was not
permissible, and the witnesses must have actually seen or witnessed the execution of the document for the
attestation to be valid. In absence of a concrete definition of ‘attested’ under the TP Act, 1882, a conflict of judicial
opinion emerged. Calcutta and Madras High Courts followed the English law,37 but Bombay and Allahabad High
Courts38 permitted personal acknowledgement based attestation as well. These twin rules continued till the Privy
Council in Shamu Patter v Abdul Kader,39 adopted the approach followed under English common law and held that
for a valid attestation, the competent witnesses must have seen the executant putting his signatures or mark. It,
therefore, expressly overruled the earlier decisions of the Bombay and Allahabad High Courts, which meant that
documents executed in pursuance of these courts’ decisions, where attestation was based on personal
acknowledgement, were invalidated. In order to avoid confusion and to validate such documents, an Act was
passed, namely, the Transfer of Property (Validating) Act, 1917 (26 of 1917). In 1926, the definition of “attested”,
i.e., what constitutes a valid attestation under the TP Act, 1882, was inserted in the Act and to make the application
of this definition retrospective, it was amended in 1927, by the insertion of the words ‘and shall be deemed always
to have meant’.
Meaning of Attestation under the Present Act
The present definition makes a significant departure from Shamu Patter’s case40 and the English law as well.
The basic ingredients for a valid attestation are:
(i) That the document must be attested by at least two or more witnesses;
(ii) They should have either seen the executant putting his signatures or mark, or some other person doing the
same in the presence of, and under the direction of the executant;
(iii) If the document has already been executed or signed by the executant, the witnesses must receive a
personal acknowledgement from none other than the executant himself, of his signatures;
Page 2 of 8
GENERAL PRINCIPLE
(iv) Witnesses must sign in presence of the executant;

(v) It is not necessary that both witnesses should be present at the same time; and
(vi) There is no specific form of attestation.
Due to the permissibility of attestation on personal acknowledgement, it is now no longer necessary that both or
even any of the witnesses must be present at the time of the execution of the document. Both, or any one of them
can come later, get an acknowledgement from the executant with respect to his signature or mark, and then attest.
Thus, at the time when the executant signs, the witnesses need not be present, but it is mandatory, that when the
witnesses attest the document, the transferor executant, must be present, because if the witnesses are witnessing
the execution of the document, both they and the executant would be present, and if they come later and then
attest, even then the executant has to be present as it is he/she only who should give a personal acknowledgement.
If the attesting witnesses are neither present at the time of execution of the sale deed nor have even seen the
executant, the deed would not be validly executed41 Similarly, where one of the witnesses testified that the other
witness had signed in his presence, but did not establish that he signed in presence of the executant of the
document, the gift is not validly attested.42
Distinction between Indian and English Law
Indian law differs from English law in three significant aspects.
(i) Under English law, both the attesting witnesses are required to actually see the execution of the document.
This means that the witnesses must be present together, and the document must be executed in their
actual physical presence by the executant. Under Indian law on the other hand, witnesses may come later
to the execution, receive a personal acknowledgement, and then attest.
(ii) Under English law, both the witnesses should be present together, but under Indian law they need not be
present at the same time. Under English law, at the time of the execution of the document witnesses must
be present but under Indian law, they may or may not be present at the time of execution of the document.
(iii) Under English law, attestation based on personal acknowledgement is not valid, but under Indian law,
attestation based on personal acknowledgement is perfectly valid.
Competency of attesting witnesses
Although attestation is extremely important for the valid execution of a transfer deed, yet it is surprising to note that
the TP Act, 1882 does not stipulate any qualification for the competency of a witness.43 An attesting witness must
be a person who is competent to contract, i.e., he must have attained majority and be of sound mind. Religion, sex,
caste, social and financial status are totally irrelevant considerations. A relative, a neighbour, a business partner, an
office colleague or a friend can be a competent witness. Even an illiterate person can be a competent witness.
However, a party to the deed,44 a person who executes a deed as a power of attorney, or as an agent of the other,45
are not competent attesting witnesses.
Scribe
A scribe is a person who may sign on behalf of the executant. A scribe who signs on behalf of an illiterate
mortgagor46 is not a competent attesting witness, but where the mark was put by the mortgagor but the scribe
merely wrote a description of it, he is competent to attest.47 A scribe may be an attesting witness as well as the
writer, but it is essential to prove that he signed as an attesting witness.48 Thus, where the scribe signs as an
attesting witness and also as an identifying witness before the registrar and his signature appears at three different
places on the registered document,49 or where the scribe wrote the document, read it over to the parties and then
put his signature as an attesting witness as well, the document is validly attested50.
Party interested in the transaction
A party who is interested in the transaction can be a competent witness. For instance, where the money is
advanced by a third party but not by the mortgagee who also attested the deed, the attestation is proper.51 Similarly
a person who advances money for a mortgage in favour of his benamidar is competent to attest.52 In Kumar Harish
Chandra Singh Das v Bansidhar Mohanty,53 A and B were friends. A was in need of money, B had the money and
wanted to help A, but the relations between them were such, that B felt embarrassed in asking for some security
from A, for the repayment of the money advanced, for fear that it may spoil their relations. He took the help of C,
Page 3 of 8
GENERAL PRINCIPLE
whom he had taken into confidence. Though the money was B’s it was lent to A by C, who also obtained a
mortgage of A’s property in his (C’s) name as a security for repayment of the money. This mortgage deed was duly
executed by A as the mortgagor in favour of C the mortgagee, and was attested by two witnesses, one of whom
was B. B, who had lent the money, was a person who was a party to the whole transaction, but it was only A and C
who were parties to the deed. The Supreme Court held that no provision of law debars a money-lender from
attesting a deed which evidences the transaction where under the money was lent. The Court drew a distinction
between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the
transaction and held that while the former is incompetent to be an attesting witness, the latter can validly attest the
deed and therefore in the present case, the deed was validly attested.
Registrar as Attesting Witness
A registrar can be a competent witness provided he has animus to attest.54 The Sub-registrar or registering officer
who registers the document may act as attesting witness, but it must be shown that :
(i) He has intention to attest; and

(ii) He has either personally seen the executant signing the document, or the executant accepts the execution
before him.55
In ML Abdul Jabbar Sahib v MV Venkata Sastri,56 the issue was, whether the deed signed by the Sub-registrar and
identifying witnesses is validly attested, if only one or more person has signed it as attesting witnesses. Here, A
instituted a suit against B, claiming a sum of approximately Rs 49,000 allegedly loaned to him on the strength of two
promissory notes executed by B, in his favour. B obtained a leave to defend this suit on a condition that he
executes a security bond in favour of Registrar, high court, for Rs 50,000. B executed this bond, charging several of
his properties. This bond was signed by one attesting witness X, and an advocate Y, who had prepared and
explained the document to B, and had identified him, as well as two other persons who had identified B before the
Registrar. The bond was also signed by the Sub-registrar. The court decided the dispute in favour of A, and
directed that the charged properties be sold, and the claim amount be paid out of the sale proceeds. What is
pertinent to note here is that B, from three more persons, O, P and Q, had borrowed some amounts, and had failed
to repay them as well. These three persons had also gone to court and had obtained simple money decrees against
B, which they wanted to execute against the same properties that were charged under the security bond in favour of
the Registrar of the high court, and with respect to which, A claimed the status of a secured creditor or priority of
claim. The claim of A was, that as he was a secured creditor, due to the security bond, out of the sale proceeds of
the charged properties, first he should be paid, and if some amount is left over after satisfying his claim, it should be
distributed among O, P and Q.. On the other hand, O, P and Q claimed that all four of them i.e., A, O, P and Q had
equality of status as unsecured creditors, and therefore the sale proceeds should be rateably distributed amongst
them. They based their claim on the argument that the security bond does not create a charge, as it was not validly
attested by two competent witnesses. Rather, it was attested by only one witness and the rest of the persons,
whose signatures appeared on the bond, had signed in different capacities. This case also highlights the
importance of valid attestation in matters of transfer of property, and deciding disputed claims. Here, if the bond is
validly attested, then only it will create a charge on the properties, with the result that A’s claim will be satisfied first,
and the remaining amount will pass to the simple money decree holders. On the other hand, if the bond is not
validly attested, no charge will be created for the benefit of A, and he will not have any priority with respect to
satisfaction of his claim, as he will be at par with the other unsecured creditors. The primary issue before the court
was, whether the bond was validly attested? The court, here, explained the meaning of the term ‘attested’ and
observed that it is essential that the witnesses should have put their signatures animo attestandi, that is, for the
purpose of attesting or testifying that they had seen the executant sign or had received from him a personal
acknowledgement of his signatures. If a person puts his signature on the document for some other purpose, e.g., to
certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. The Registering
Officer, the court said, is required to affix the date and his signatures to the endorsements. Prima facie, the
Registering Officer puts his signatures on the document in discharge of his statutory duty, and not for the purpose
of attesting it, or certifying that he has received from executant a personal acknowledgement of his signatures.
Likewise, the two identifying witnesses had put their signatures on the document to authenticate the fact that they
had identified the executant, and as it was not shown that they had put their signatures for the purpose of attesting
the document, they could not be regarded as attesting witnesses. The court held that as the document was attested
by one attesting witness only, it did not create a charge, and so A’s status was that of an unsecured creditor, whose
claim was at par with the claim of the other three simple money decree holders.
Animo Attestandi
Page 4 of 8
GENERAL PRINCIPLE
To attest is to bear witness to a fact.57 The attesting witnesses must put their signatures on the document with
animo attestandi, i.e., with intention to attest, which means that the physical act of putting their signature/mark must
coincide with the mental act (intention) to authenticate the execution of the document.58 A person merely indicating
his consent to the transaction,59 or an identifying witness,60 is not an attesting witness, but such a person can be an
attesting witness if he witnesses the execution of the document, and puts his signature by describing himself as an
attesting witness. If a person puts his signatures for any other purpose, e.g., to certify that he is a scribe61 or a
registering officer, or a solicitor,62 or for identifying the testator,63 he is not an attesting witness.64 Legatees who put
their signatures on the will in token of their consent to its execution are not disqualified from taking as legatees.65
It is necessary that the person relying upon a document must establish that the executant has signed or put his
thumb impression before the attesting witness, and the attesting witness must sign in his presence.66
Where the executor of a mortgage accompanied by the mortgagee came to the house of the witness,
acknowledged the execution and made a request for attesting the document and thereupon he attested it, it was
held that attestation is valid.67 Where the deed was written in the English language and the executant as well as the
attesting witnesses were unfamiliar with this language, and the contents of the deed were not explained to the
executant, the court held that the document was not properly attested.68
Mode of attestation
There is no particular form of attestation,69 and a mere signature is sufficient.70 The Act does not specify that it
should be at any particular place in the deed.71 Rather, the definition of attestation specifically mentions that ‘no
particular form of attestation shall be necessary’. However, the fact that witnesses are signing as attesting
witnesses should be clearly discernible from the document. Law does not require people besides the transferor and
transferee to merely sign the document at any time and call themselves attesting witnesses. The main purpose of
attestation is to testify to the voluntary execution of the document by the transferor. In Sant Ram v Kamala
Prasad,72 on a transfer deed prepared by a lawyer, before the transferor could sign, four persons from the side of
the transferor and two from the side of the transferee, who called themselves attesting witnesses signed on the
document. This document was then presented for registration, while the transferor was yet to sign it. On the
Registrar pointing out at the discrepancy, the transferor signed in presence of the Registrar but none of the six
‘witnesses’ were present. It was held that the deed was not validly attested, as, the time when these six persons
had signed the document it was not even executed. Attestation means testifying the voluntary execution of the
transfer deed, and therefore attestation can never be prior to the execution of the document, and must always be
subsequent to it.
It is not necessary that more than one witness be present at the same time.73 Attestation must take place in
presence of the executant,74 but even an actual witness to the executant would not validate putting of signatures of
the attesting witnesses before the execution of the document.75 Where the executant was a pardanashin lady, and
put her hand out from behind a curtain and made her thumb impression on the deed in sight of the witness and then
her husband signed, followed by the attesting witnesses, it was held that the witnesses signed ‘in the presence of
the executant even though he saw only her hand and not her face, and the document is duly attested.76 However,
where one out of two witnesses to a mortgage bond signs his name as an attesting witness for himself and on
behalf of the other witness in the latter’s presence, the attestation is valid though the other witness does not make
his mark.77 Where two deeds are prepared and executed as a part of one transaction but the marginal witnesses
are not common, merely from the circumstance that the disputed agreement has another set of marginal witnesses,
it cannot be inferred that the document is forged or fictitious.78
Attestation of a Document Executed by a Pardanashin Woman
In case of a pardanashin woman,79 the rules are slightly relaxed. Here, the witnesses may not be able to see the
woman, as she may remain behind purdah (veil), due to social customs. In such cases, applying the rules rigidly
may make transfer of property by pardanashin women extremely difficult, thus in such cases, if the witnesses are
well versed with the voice of the pardanashin woman, see the deed being executed through curtains and then attest
it, it is validly attested. In Padarath Halwai v Ram Narain,80 the mortgagors were two pardanashin ladies who did not
appear before the attesting witnesses, and consequently, their faces were not seen by the witnesses. The two
witnesses were however well acquainted with the voices of the ladies. Between them and the women was a chik
that was not lined with cloth. The two witnesses recognised them by their voices, and saw each of them execute the
deed with their own hand, and then put their signatures on the document as attesting witnesses. The Privy Council
held that the deed was validly attested. Similarly, in a case, the lady sat behind a curtain, but the scribe along with
Page 5 of 8
GENERAL PRINCIPLE
her family members, including her husband and a nephew, sat outside the curtain, and the scribe read out the deed
to her. The lady accepted the deed, put out her hand and put her thumb impression on the document in sight of the
witnesses. Thereupon, the husband and another person signed as attesting witnesses. The attestation was held to
be valid.81 However, where the son of the pardanashin lady takes the document inside the purdah; gets it executed,
and brings it outside and then the attesting witnesses put their signatures after receiving the acknowledgement from
the son and not from the lady, the document is not validly executed.82
Attestation as proof of consent
Attestation does not of itself imply consent,83 though there may be circumstances which show that the attesting
witness had knowledge of contents of the document he attested and consented to.84
Attesting Witness not a Party to the Execution of the Document
Mere attestation of a document would not make an attesting witness a party to the execution of the document. Nor
would it make an otherwise invalid document valid simply because the person competent to execute it was an
attesting witness.85 Where the mother of a minor child executes a gift of the former’s property without obtaining the
required permission from the court and the father signs as an attesting witness, the same is void. The significance
of attestation in law is to stop the attester of the document from denying the contents of the document, that too if the
contents of the same and the legal implications of the attestation are shown to have been well within the knowledge
of the attester at the time of the making of such attestation and not help to make the attester the real executant of
the document itself.86
Proof of Valid Attestation in Court
In order to prove the validity of a deed, the party relying on it must prove that it was attested by two witnesses.87
Where the mortgagee sues to enforce his mortgage and the execution and attestation of the deed are not admitted,
the mortgagee need only prove that the mortgagor signed the document in the presence of an attesting witness,
and one man attested the document, provided that the document, on the face of it, bears the attestation of more
than one person. However, if the validity of the mortgage be specifically denied in the sense that the document did
not effect a mortgage in law, then it must be proved by the mortgagee that the mortgage deed was attested by at
least two witnesses.88 Where the mortgagors do not question the execution of the mortgage but the fact of
possession, the mortgage is not specifically denied, and is sufficiently proved.89 A document requiring attestation
can be used as evidence, and one attesting witness, at least, should be called for the purposes of proving its
execution. Where one attesting witness is called and he testifies that the mortgage is executed, the validity of the
execution of the deed is established.90
Similarly, if the execution of gift deed is specifically denied, then an attesting witness may be called to prove it. If,
however, such execution is not specifically denied, then it would not be necessary to call an attesting witness to
prove the same. But the document, all the same, has to be proved.91 Due execution and attestation of the gift deed
has to be proved92 although it may be proved by calling a person other than an attesting witness.93 Thus, where the
document is duly attested by two attesting witnesses and one of them is examined to prove the deed, nothing more
is required to satisfy the execution in absence of specific denial in the written statement, or even subsequently,
before the court.94 Where the attesting witness is produced but he denies or does not recollect the execution of the
document, its execution may be proved by other evidence.95 Where one of the attesting witnesses is dead and the
other unable to say if the deed in question is the one he attested, evidence of the scribe would be sufficient.96
Where the handwriting of the attesting witnesses who are dead has been proved, the presumption in the absence of
rebutting evidence is that they actually witnessed the execution.97
Where the evidence of one of the attesting witness is shaky with respect to the execution of the gift deed and no
evidence is there to show that the document is signed by the donor in presence of the other witnesses and the
execution of the document is suspicious, the document is not validly executed.98
The law does not require that the same witnesses before whom the deed has been executed should appear before
the Sub-registrar.99
Page 6 of 8
GENERAL PRINCIPLE
36 Kumar Harish Chandra Singh Deo v Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159]; Indu Paintal v
General Public, (2011) 1 Ren CR (Civil) 126 : (2011) 97 AIC 761.
37 Abdul v Saliman, (1900) ILR 27 Cal 190; Surur Jigar Begum v Barada Kanta, (1910) ILR 37 Cal 526 where an
exception was created for a pardanashin woman; See also Harmongal Narain v Ganaur Singh, (1907) 13 Cal WN 40;
see also Girindra v Bejoy, (1899) ILR 26 Cal 246; Shamu Patter v Abdul, (1908) ILR 31 Mad 215.
38 Ramji v Bai Parvati, (1903) ILR 27 Bom 91; Ganga v Shiam Sundar, (1904) ILR 26 All 69.
39 16 IC 250 (1912) ILR 35 Mad 607.
40 Ibid.
41 B Rajegowda v HB Shankaregowda, AIR 2006 Kant 48 [LNIND 2005 KANT 496].
42 Subramanian v Karuppayee Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544].
43 Peddavandla Narayanamma v Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]; B Rajegowda v
HB Shankergowda, AIR 2006 Kant 48 [LNIND 2005 KANT 496].
44 Harish Chandra Singh Das v Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159]; Seal v Claridge, (1881) 7
QBD 516, 519; Pearey Mohan v Sreenat, 7 IC 735 : (1909) 14 Cal WN 1046; Saurur Jigar Begum v Barada Kanta
Mitter, 5 IC 539 : (1910) ILR 37 Cal 526; Debendra v Bihari, 15 IC 666 : (1911) 16 Cal WN 1075.
45 Gomathi Ammal v Krishna Iyer, AIR 1954 Mad 126 [LNIND 1953 MAD 37].
46 Peddavandla Narayanama v Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]; Rajani Kanta v
Panchananda, 48 IC 820 : (1918) 46 Cal 522; Rajani Kanta v Panchananda, 48 IC 820 : (1918) 46 Cal 522; Sristidhar v
Rakshakali AIR 1922 Cal 168; Paban v Badal, AIR 1921 Cal 276; Ram Samujh v Mainath, AIR 1925 Oudh 737.
47 Muhammad Ali v Jaffar Khan, (1897) All WN 146; Dinamoyee v Bon Behari, (1902) 7 Cal WN 160; Paramasiva v
Krishna, 43 IC 983; Nageshwar Prasad v Bachu Singh, 53 IC 79, (1919) 4 Pat LJR 511; Dharamdas v Ramoomal, AIR
1927 Sau 118; Jogendranath Nath v Nitai Churn, (1903) 7 Cal WN 384; VRMRM Firm v Muhammad Kasim, AIR 1926
Rang 145; Alagappa Chettirir v Ko Kala Pai, AIR 1940 Rang 134; Venkata Sastri v Rahilna Bi, AIR 1962 Mad 111
[LNIND 1960 MAD 174].
48 Govind Bhikaji v Bhau Gopal, 39 IC 61 : (1917) ILR 41 Bom 384; Dinamoyee v Bori Behari, (1902) 7 Cal WN 160;
Alagapa Chettiar v Ko Kala Pai, AIR 1940 Rang 134; Jagdeo Chaudhary v Deo Chaudhary, AIR 1958 Pat 566.
49 Brij Raj Singh v Sewak Ram, AIR 1999 SC 2203 [LNIND 1999 SC 444]: (1999) 4 SCC 331 [LNIND 1999 SC 444] :
(1999) 2 SCJ 272 [LNIND 1999 SC 444].
50 Peddavandla Narayanamma v Peddasant Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359].
51 Kumar Harish Chandra Singh Das v Bansidhar Mohanty, AIR 1965 SC 1738 [LNIND 1965 SC 159].
52 Durga Din v Suraj Bakhsh, AIR 1931 Oudh 285.
53 AIR 1965 SC 1738 [LNIND 1965 SC 159]: (1966) 1 SCR 153 [LNIND 1965 SC 159].
54 ML Abdul Jabbar v MV Venkata Sastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]; prior to this decision there was a
conflict of judicial opinion; see, Ram Gharan v Bhairon, (1931) 43 All 1; Sarada Prasad Tej v Triguna Charan Ray, AIR
1922 Pat 402; Ramanath v Delhi Batcha, AIR 1931 Mad 335 [LNIND 1930 MAD 26]; Venkataramayya v Nagamma,
AIR 1932 Mad 272 [LNIND 1931 MAD 170]; Neelima Basu v Johannal Sarkar, AIR 1934 Cal 772; Kanchedilal v
Jabbarsha, AIR 1936 Ngp 171; Parshotam Ram v Keshodas, (1943) ILR 25 Lah 495; wherein it was held that he is a
competent witness. For a contrary opinion, see Tafaluddin Peada v Mahar Ali, (1899) ILR 26 Cal 78; Chandrani v Lala
Sheo Nath, AIR 1931 Oudh 146; Lachman Singh v Surendra Bahadur Singh, AIR 1932 All 527; Timmavva v
Channavva, AIR 1948 Bom 322.
55 ML Abdul Jabbar Sahib v MV Venkata Sastri, AIR 1969 SC 1147 [LNIND 1969 SC 37].
56 AIR 1969 SC 1147 [LNIND 1969 SC 37]: (1969) 1 SCC 573 [LNIND 1969 SC 37].
57 Ku. Chandan v Longa Bai, AIR 1998 MP 1 [LNIND 1997 MP 172].
58 Subramanian v Karuppayee Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544].
59 Sarkar Barnard v Alak Manjary, AIR 1925 PC 89.
60 Dharmadas Mondal v Kashi Nath, AIR 1959 Cal 243 [LNIND 1958 CAL 76].
61 Kunji Kuttiamma v Kunji Kuttiamma, (2001) 1 KLT 797; Brij Raj Singh v Sewak Ram, AIR 1999 SC 2203 [LNIND 1999
SC 444]: [1999] 2 SCR 779 [LNIND 1999 SC 444].
62 ML Abdul Jabbar v Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37]; see also Har Kaur v Gura Singh, AIR
1988 P&H 41, 42, with respect to the signature and the manner of its authentication; Subramanian v Karuppayee
Ammal, 1998 (1) CTC 79 [LNIND 1997 MAD 544].
Page 7 of 8
GENERAL PRINCIPLE
63 ML Abdul Jabbar v MV Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37].
64 Girja Dutt v Gangotri, AIR 1955 SC 346; Kunwar Surendra Bahadur v Thakur Behari Singh, AIR 1939 PC 117.
65 Abinash Chandra v Dasrath Malo, ILR 56 Cal 598.
66 Dharmadas Mondal v Kashi Nath, AIR 1959 Cal 243 [LNIND 1958 CAL 76].
67 Shiam Sundar Singh v Jaganath Singh, AIR 1927 PC 248.
68 ML Abdul Jabbar v Venkata Shastri, AIR 1969 SC 1147 [LNIND 1969 SC 37].
69 See The Transfer of Property Act, 1882, section 3.
72 AIR 1951 SC 477 [LNIND 1951 SC 57].
74 Nila Dei v Bidyadhar Sahan, AIR 1999 Ori 69; Abinash Chandra v Dasarath, AIR 1929 Cal 123, criticising Radha
Mohan v Nripendra Nath, AIR 1928 Cal 154; Veerappa v Subramania, AIR 1929 Mad 1 [LNIND 1928 MAD 202](FB);
Zamindar of Pollavaram v Maharaja of Pittapuram AIR 1931 Mad 140 [LNIND 1930 MAD 103]; Ramanathan v Delhi
Batcha, AIR 1931 Mad 335 [LNIND 1930 MAD 26]; Venkataramayya, v Nagamuru, AIR 1932 Mad 272 [LNIND 1931
MAD 170]; Bhikari Charan v Sudhir Chandra, AIR 1938 Cal 702; Mayurbhanj State Bank v Bhabatosh Das, AIR 1961
Ori 178.
75 Pran Nath v Jadu Nath, (1905) ILR 32 Cal 729; Sant Lal v Kamla Prasad, AIR 1951 SC 477 [LNIND 1951 SC 57];
Dhiren Bailung v Bhutuki, AIR 1972 Gau 44; ST Singh v SK Singh, AIR 1973 Gau 64; Tarachand v Kesrimal, AIR 1973
Raj 123.
76 Kundan Lal v Mt. Musharrafi Begam, AIR 1936 PC 207.
77 Dahu v Janardan, AIR 1950 Pat 368.
78 Tribhuwan Dutt Tripathi v Ramji Tiwari, AIR 1991 All 268 [LNIND 1991 ALL 272], 271.
79 The term pardanashin woman refers to a woman who remains behind purdah or veil in public places.
80 Padanath v Ram Narain Upadhia, 19 Cal WN 991 : AIR 1915 PC 21.
81 Kundan Lal v Mt. Musharrafi Begam, AIR 1936 PC 207.
82 Ganga Prashad v Ishari Prashad, 22 Cal WN 697 PC.
83 Pandurang v Markandeya, AIR 1922 PC 20; see also Sunder Kuer v Shah Udey Ram, AIR 1944 All 42 wherein it was
held that by attesting a document the attesting witnesses do not conform that they have no knowledge of the contents
of that document.
84 Tarabag Khan v Nanak Chand, AIR 1932 Lah 566; Rai v Gorakh Rai, AIR 1934 Pat 93. See also Abbao Alikhan v
Mahomed Shah, AIR 1951 MP 92.
85 TM Krishnamoorthy Pillai v Mangalam, 1998 (1) CTC 306 : (1998) II Mad LJ 173.
86 Ibid.
87 Lachman Singh v Surendra Bahadur, AIR 1932 All 527.
88 Ibid.
89 Jhillar v Rajnarian Rai, AIR 1935 All 781 : 54 All 1051 : (1932) All LJ 635.
90 Dhiren Bailung v Bhutuki, AIR 1972 Gau 44.
91 Bindeshwari v Panchayati, AIR 1936 All 169.
92 See the Indian Evidence Act, 1882, section 68.
93 Balappa Tippanna v Asangappa Mallappa, AIR 1960 Mys 234.
94 Brij Raj Singh v Sewak Ram, AIR 1999 SC 2203 [LNIND 1999 SC 444]. See also Surendra Kumar v Nathulal, AIR
2001 SC 2040 [LNIND 2001 SC 1151]; Kishore Chandur v Babu Ganesh Prosad, AIR 1954 SC 316 [LNIND 1954 SC
32].
95 Sashimukhi v Monmohini, 67 IC 87; Hason v Gurudas, AIR 1929 Cal 188; Manki v Hansraj, AIR 1938 Pat 30.
96 Dhirajjudin v Baharullah, 90 IC 680.
Page 8 of 8
GENERAL PRINCIPLE
97 Raja Venkatarmayya v Kamisetti Gattayya v Gatayya, AIR 1927 Mad 662 [LNIND 1926 MAD 466]; Uttam Singh v
Hukum Chand, (1917) ILR 39 All 112 : 15 All LJ 167.
98 Nila Dei v Bidyadhar Sahani, AIR 1999 Ori 69.
99 Hakim Singh v Ram Sanehi, AIR 2001 All 231 [LNIND 2001 ALL 243], 233.
End of Document
NOTICE
NOTICE
“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from
an enquiry or search which he ought to have made, or gross negligence, he would have known it.
End of Document
GENERAL PRINCIPLE
GENERAL PRINCIPLE
Notice literally means knowledge, and this doctrine under the TP Act, 1882 is used to determine the rights and
claims of two or more persons vis-à-vis each other, who are involved in an unconscionable transaction. The person
responsible for creating such a condition is not a part of the situation any more, and the other persons fight with
each other for a claim or a piece of property. In such a scenario, the court determines their rights with the help of
doctrine of notice.
For instance, a family comprises of a father F, son S and a daughter D. The father leaves his property to the son
under a will, and in it, provides that Rs 5,000 per month will be paid by the son, out of this property, to the daughter
for her maintenance and till he makes an alternative arrangement of an equivalent amount for her, he should not
sell the property. Here, it would be unconscionable for the son to sell the property without making such an
arrangement. The son sells the property to X, without making any provision for D. D wants to proceed against X,
who has paid full consideration for the property, but he denies any liability to pay her. Here due to an
unconscionable stand of S, two seemingly innocent persons, D who is currently deprived of her maintenance, and
X, on whom a liability is sought to be imposed by D, are forced to go to court. In this scenario, the rights and claims
of D and X can be determined using the doctrine of ‘notice’. The court will examine the question whether X, who
claims to be a bona fide purchaser, had ‘notice’ or knowledge of D’s rights over the property at the time of the
conclusion of the contract between him and S. If he knew that D had a right over it, he purchases the property
burdened with this right and thus it will become his responsibility to honour that right. But if he had no knowledge or
notice of her rights over the property, then he will take the label of ‘bona fide purchaser without notice’ and D will not
be able to enforce her claim against the property in hands of X.
Similarly, A, an owner of a house, contracts to sell it to B. A transfer deed is executed in favour of B, and B pays an
advance amount as part of the consideration. A promises to have the transfer deed registered in B’s name after ten
days. However, instead of getting it registered in the name of B, A, the very next day, sells the same house to C,
through a written, attested and registered deed. The earlier contract in favor of B remains merely an agreement to
sell, as without registered document, no right in the house will pass from A to B. When B comes to know that the
property he had contracted to buy has been sold to C without his knowledge, he has two remedies in the
alternative, First, to sue A for the breach of contract and damages and a refund of the amount that he had
advanced and secondly, he can proceed against C, and ask him with the help of the court to execute a transfer of
the property in his favour. In the latter case, again, the doctrine of ‘notice’ is used to decide the conflicting claims of
B and C, who, it appears have been duped or defrauded by A, who now is no more a part of the situation. B and C,
both, appear to be innocent parties and as it is, it would be difficult for the court to grant or deny the claim of B, but if
it is proved before the court, that C bought the property with notice or knowledge that B had a prior claim over it, it
would become his responsibility to honour B’s claim. In both these examples, one fact is apparent, that if it is proved
that X in the earlier example and C in the present instance, admit that they knew of the claims of the respective
litigants, X would incur a liability in the first case, and C would stand to lose the property in the second case. In
other words, admittance of actual notice/ knowledge on their part would be to their disadvantage, and this is the
reason why an admittance of notice is highly unlikely.
End of Document
KINDS OF NOTICE
KINDS OF NOTICE
Notice can be of three types namely:
(i) Actual notice;1

(ii) Constructive or implied notice; and
(iii) Notice to agent.2
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.3 For instance, a person attesting 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 rumours4
and should be of such a nature that it would be expected that a normal man would take it seriously.5 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.6
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;7

(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 it8.
Rule of Caveat Emptor
Constructive notice is the equity which treats a man who ought to have known a fact, as if he actually does know it.
It presupposes, that in property transactions, a transferee ought to ascertain and verify certain facts for
safeguarding his own interest. These facts may relate to the property and the transferor. The basic objective behind
these inquiries and verification is to find whether the property sought to be obtained is free from charges or
encumbrances, and whether the transferor is competent to convey a valid title to the transferee. The presumption
Page 2 of 7
KINDS OF NOTICE
is, that when a reasonable, prudent man enters the market to purchase property, or otherwise obtains an interest in
immovable property in his favour, to obtain full value for his money, he would like to take the property free from
charges or claims of other people over it. If the property is encumbered, the exact nature of encumbrances should
be made clear to him. As the chances of deceit or misrepresentation on the part of the transferor cannot be ruled
out, the duty is put on the transferee to be vigilant and to ascertain these facts himself, by making inquiries from
concerned persons; by inspecting all the relevant documents relating to the property in possession of the transferor
or even with the relevant statutory authorities. A failure to do that would result in the imposition of constructive
notice of any fact that is ascertainable, by making inquiries or/and verification and content of the relevant
documents relating to this property. Thus, the rule of ‘caveat emptor’ or ‘buyer beware’ applies here. According to
section 3, 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. The section
therefore imposes a duty on the transferee to make relevant enquiries or search. What the transferee has to
ascertain is:
(i) Whether the transferor is competent to transfer the property;

(ii) Whether there is a charge due over the property; and
(iii) Whether any other person has a temporary or permanent claim, right or title over the property.
The rule is that the transferee must inspect or read carefully all relevant documents relating to the property. He
cannot afford to be negligent or careless, as law would not listen to his plea that he forgot to read the documents or
presumed that the papers would in order.
Gross negligence
Gross negligence refers not to an ordinary negligence, but negligence so grave, that it cannot be relatable to the
conduct of an ordinary reasonable prudent man. In these cases, even though a person claims that he had no
knowledge of a fact, the court will attribute knowledge or notice to him. For instance, if the transferee fails to read a
noting on the paper that the property is subject to a charge, while the papers are in his possession, the court will not
entertain his plea that no notice of the same can be attributed to him.
Before purchasing the immovable property, the omission to search the registers kept in the registrar’s office may
amount to gross negligence so as to attract the consequences which result from notice.9 But omission to inspect the
title deeds of an adjoining property which the seller is under no obligation to produce for selling the present
property, is not gross negligence.10 Omission of the purchaser to inquire about the arrears of taxes or other dues of
the property, where it is situated in the municipal area may not amount to gross negligence in each and every
case.11 Where the property is purchased at a court auction and was in the charge of an official receiver for the past
five years, for which the taxes were not paid to the municipality, the purchaser cannot be imputed with constructive
notice of the arrears of taxes.12
Where the bank returns the title deeds, which are the only security it has against the loan advanced by it, and the
owner mortgages the same title deeds with another bank to secure an overdraft, the first bank is guilty of gross
negligence in parting with the title deeds.13 Notice cannot be imputed on bona fide purchasers who purchase the
property after due inquiries and have acted in good faith. If the owner agrees to sell the property to the plaintiff, but
sells half of it to the first defendant and the other half to the second defendant, and the plaintiff comes to know
about it only when an application is filed for mutation of names, the defendants are purchasers with value and
without notice of the right of the tenant.14 Reasonable care taken by the purchaser is a question of fact depending
on the circumstances of the case.15 Where the name of the transferor is recorded in the revenue records, no further
inquiry is required to be made with respect to his title.16
Wilful abstention from making an enquiry
In case of wilful abstention from making an enquiry, there should be some starting point of enquiry, some hint, some
suspicion that there is, or may be, something wrong somewhere and the transaction or situation demands some
probe or investigation that may reveal the truth. If, in such cases, the transferee fails to investigate, the law will
presume that he had an inkling of the fact, that something was wrong, but he had a fraudulent determination not to
know the truth. Wilful abstention therefore hints at want of bona fide as distinguished from mere omission to make
enquiries.17 A person refusing to take a registered letter is imputed with constructive notice of its content and is not
allowed to plead that he did not know about them.18 If a person omits to inspect the title deeds, the court shall
presume he knows all the facts given therein. Thus, where the purchaser is shown the title deeds that mention that
Page 3 of 7
KINDS OF NOTICE
the property is partitioned property with certain conditions, the purchaser is imputed with the fact of the partition and
its conditions and cannot be allowed to plead the ignorance of such conditions.19
For instance, a person, A, sells his property to B, and delivers possession to him for a consideration of ten lakh
rupees. B pays a sum of five lakhs and promises to pay the balance five lakhs after six months. The fact that a
balance of five lakhs has to be paid to A by B, is written on the title deeds. B fails to pay A, and mortgages this
property by deposit of title deeds in favour of C. C fails to read the noting that B has to pay five lakhs to A, and pays
the loan amount of five lakhs to B. B fails to repay the loan amount to C as well, and this property that is subject to
the mortgage is brought up for sale. Suppose, the total amount fetched after sale is five lakhs. At this point of time,
A puts up his claim of five lakhs rupees. The issue is—who would get this amount, A or C. C would get it as a bona
fide transferee without notice of A’s claim over the property if he can show, that he had no actual or constructive
notice of A’s claim over the property. However, the title deeds on which a noting was made with respect to the
balance of money to be paid by B to A, was in possession of C. In fact, it was on the basis of the title deeds that he
had advanced the loan to B. As a reasonable prudent person, he ought to have read or examined the title deeds
carefully, and if he fails to do that, he would be guilty of gross negligence. Secondly, if he indeed examines the title
deeds, and finds the noting, this is the starting point of inquiry, which needs further investigation. If he does not
probe into the matter, he would be guilty of willful abstention from making an enquiry. Here, even if he is satisfied by
making enquiries from only B, and getting an incorrect answer from him, that would be insufficient, because as a
reasonable prudent person, he should direct his enquires against a person, who was to be paid that amount, i.e., A
in this case, and not against a person who was under an obligation to pay him, i.e., B. Here it was unconscionable
on B’s part, not to disclose to C the fact that the balance amount was not paid, which omission led to the dispute
between A and C. Here, C would be imputed with constructive notice of A’s claim over the property, as he is guilty
of both gross negligence as well as willful abstention from making an inquiry, and A’s claim will be upheld.20
Similarly, A, the owner of ten bigas of land mortgages the land to B, by deposit of title deeds of the land and raises
a loan of Rs twenty lakh. Ten months later, he professes to sell two bigas of the mortgaged land to C; for a
consideration of ten lakhs. C asks him for the papers relating to the property, and A shows him a photocopy of the
title deeds. C asks for the original papers and A promises to show him by a week stating that they are kept in a
locker for safe custody. C, satisfied with A’s answer, does not press for the originals, pays consideration and
purchases the land. Later, B whose loan amount remains unpaid, causes the property to be sold, including the two
bigas that were in possession of C. At this time C raises an objection, stating that he is the owner of these two
bigas, as he had purchased them after payment of full consideration, and therefore, they cannot be sold in
execution proceedings. To decide the claims of B and C, it has to be seen whether it can be shown that C knew
about B’s rights over the property. Can constructive knowledge or notice be imputed on him? He purchased the
property on the strength of a photocopy of the title deeds, without even looking at the originals and therefore was
guilty of gross negligence. Further, where even after his asking for the original title deeds, the transferor did not
produce them, as a reasonable prudent man, he should have ascertained or verified, whether the title deeds were
indeed with the transferor or not, and in not doing that, he was guilty of willful abstention from making an enquiry.
Therefore, if he had probed further and insisted on entering the transaction only on the strength of the complete
original papers, he could have discovered the truth. As he had failed to do that, he would be imputed with
constructive notice of the rights of the mortgagee, B, and will take the property subject to his rights. B’s rights
therefore will be upheld here. However, if A had procured the title deeds from B and C had purchased the property
after inspecting the title deeds, the situation would have been different.21
In Lloyd’s Bank v PF Guzdar & Co,22 the conflicting claims were of two banks, Bank A and Bank B, who were
defrauded by X. The facts were as follows. X was a regular customer of Bank A. He deposited the title deeds of his
house with them and secured an overdraft. He thereafter told the bank that in order to clear the overdraft, he
wanted to sell the house, and for this purpose, he needed to show the title deeds to the prospective purchaser. At
the same time, he also requested the bank, not to disclose the fact of loan, as he apprehended that it would
adversely affect the price he was hoping to fetch upon the sale of the house. The bank gave back the title deeds to
X, and he returned them to the bank after a week, as the sale could not be finalised. A month later, X repeated his
request to the bank, and the latter again gave him the title deeds of the house. This time X took the title deeds of
the house to Bank B, and secured a loan after depositing the same with Bank B. The loan was not paid and Bank B
wanted to sell the property. Now Bank A claimed priority on the ground that the property was subject to an earlier
mortgage with them. The question before the court was whether Bank B could be imputed with constructive notice
of the right of Bank A over the property. This issue has to be examined in light of the duty of Bank B as a
reasonable, prudent transferee. Can it be said that Bank B was guilty of willful abstention from making an enquiry or
gross negligence? The answer to both these questions will be in the negative. If the title deeds of the house were in
order, and deposited with the bank, and the bank, after securitisation of the same grants a loan, it cannot be said
that they acted negligently, or that there was any starting point of inquiry that they needed to probe further. Rather,
Page 4 of 7
KINDS OF NOTICE
they had been vigilant and had taken care of their interests in a reasonable manner. On the other hand, it was Bank
A, whose conduct was tainted with gross negligence, as they had parted with the very papers which were the
security for the loan. In not looking after their own interests, they could not look upon the court for protection, as
even the court cannot protect the interests of those who fail to do it themselves by being grossly negligent.
Similarly, where the property is mortgaged to a bank by deposit of title deeds and the mortgagor later sells the
property to a lady without disclosing the fact of the mortgage, and she does not insist on inspecting the title deed,
the buyer wilfully abstains from making an inquiry and will be imputed with constructive notice of the mortgage.23
Abstention from inquiry for title deeds at a place where one knows that mortgages by deposit of title deeds are legal
and usual, amount to notice of mortgage.24 The presumption of the court in such cases would be that the person
imputed with notice has designedly or purposely abstained from making an inquiry into the contents of the deed
with the intention of avoiding taking its notice.25
Constructive notice is imputed only in situations where a person has means of knowing a particular fact, but has
failed to gather its knowledge. There exist circumstances which ought to put him on an inquiry, which, if prosecuted,
would have led to a discovery of it.26 However, if a person has no means or opportunities to obtain information
about something, notice cannot be imputed on him about that thing. Thus, where the purchaser does not have the
slightest idea or suspicion about any earlier agreement entered into, far away from the place where the property is
situated, it cannot be said that there was any willful abstention on the part of the purchaser.27
Duties of the transferee
The law demands a careful and vigilant conduct on the part of the transferee to verify the correctness of the title,
and the possibility of existence of a charge over the property. For this, certain rules have to be kept in mind, which
are as follows:
(i) The transferee must satisfy himself with respect to the competency of the transferor to transfer the
property; as the rule is, no one can pass a better title than what he has. If the transferor is not competent to
transfer the property, the transferee will not get a good title.
(ii) The transferee must examine all the relevant documents relating to the property and the transaction. Each
and every relevant paper is to be inspected, as the rule is ‘Actual notice to the existence of a deed is
constructive notice of its contents’. If the transferee has in his possession a document relating to the
property, he will be deemed to know about its contents, and if a liability on the property is ascertainable
from a particular document, he will be imputed with constructive notice of the same.
(iii) The transferee must satisfy himself, as to whether there is a charge due over the property. One way of
doing this is to go beyond the present transaction and find out how and from whom the present transferor
had acquired the property. If he had purchased the property, and that person is available, he can enquire
from him about the possibility of a charge. He can also inspect those documents with the help of which the
property was acquired. For example, if the transferee knows that the transferor had acquired the property
through a will; he must examine the will to find out the possibility of the existence of a charge.
In Bank of Bombay v Suleman,28 a person died and in his will, left his house and land to his sons from his first wife.
He also left behind four sons from his second wife, who had not attained majority. In his will, he had provided that
the sons from the first wife were to get the land and the house, but they were also under an obligation to pay Rs
30,000 to the sons from the second wife within a period of six months from the date of operation of the will, and this
sum was a charge on the land and the house. The sons from the first wife did not pay this amount, and in the
course of their business, mortgaged the land and the house to the bank by deposit of title deeds. The bank
advanced a loan of Rs 52,000 and when the sons failed to pay the loan amount, brought the property up for sale.
The sons from the second wife now contended that their claim, over the land and the house had precedence over
the bank’s claim, as the later would be deemed to have constructive notice of the same. The bank pleaded
ignorance of the knowledge of the existence of this charge as a copy of the will, was not amongst the documents
deposited with the bank. The court held that if the bank had made enquiries as to how the sons had derived the title
to the property, it would have known about the will and an inspection of the will could have brought them the
knowledge of the charge. In not doing so, they were guilty of wilful abstention from making an enquiry, and
therefore were imputed with constructive notice of the charge in favour of the sons from the second wife, who, it
was held, had priority of claim.
Actual Notice to a Deed is Constructive Notice of its Contents

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KINDS OF NOTICE
Actual notice of a deed is constructive notice of all the material facts affecting the property, which appear on the
face of the deed or can be reasonably inferred from its contents.29 It is also notice of all documents recited in the
deed, and which an examination of the deed would have disclosed, provided the deed formed part of the chain of
title and so necessarily affects the property.30 It means that where a person has actual knowledge of the existence
of a document relating to the property in question, he would be imputed with constructive notice of not only the
contents of this document, but also of all the relevant papers that can be ascertained after reading the main
document as well. Thus, where, on a partition of the family property the deed contains a mutual covenant of a right
of pre-emption in favour of either of the brothers, should any one of them want to sell the property in the future, and
one of them sells his share by a deed which describes as his share as acquired under a deed of partition, the
purchaser has constructive notice of the right of pre-emption.31
Status of Municipal Taxes
On the question of the liability of a subsequent purchaser to pay past or arrears of municipal taxes, the judicial
opinion was divided till it was settled by the apex court in Ahmedabad Municipal Corp v Haji Abdul Gafur Haji
Hussenbhai.32 An earlier full bench decision of Allahabad High Court in Nawal Kishore v The Municipal Board,
Agra33 held that the general principal is that all intending purchasers of the property in municipal areas where the
property is subject to a municipal tax, which has been made a charge over the property by statute, should have a
constructive knowledge of the tax and of the possibility of some arrears being due, with the result that it becomes
their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be
due, and if they fail to make such enquiry, such failure amounts to a wilful abstention or gross negligence within the
meaning of section 3 of the TP Act, 1882. Similarly, in Municipal Board, Lucknow v Lal Ramji Lal,34 the same court
reiterated that it must be presumed that a person who buys a house situated in a municipal area is acquainted with
the law by which a charge is imposed by the municipal Act upon the property for payment of municipal taxes. The
charge having been expressly imposed by the municipal Act upon the property for payment of municipal taxes, the
municipality was entitled to follow the property in the hands of a transferee who had not cared to make any enquiry
as to whether the payment of taxes was in arrears, and realise the amount from the sale of the property.
However, the same court in Municipal Board, Cawnpore v Roop Chand Jain,35 observed that when a bona fide
purchaser buys property he takes it free of all charges of which he has no notice actual or constructive. He is said to
have constructive notice when ordinary prudence and care would have impelled him to undertake an inquiry which
would have disclosed the charge. Here, the court took note of the fact that the municipality does not maintain a
public register with the record of arrears of taxes that is available for public inspection. Further, here the Kanpur
Municipality had allowed the arrears to accumulate for around eleven years and the court therefore observed that
no intending purchaser could have presumed, in absence of special intimation by the municipality, that taxes might
be due on the property. The court, therefore, concluded that no constructive notice of arrears of municipal taxes
could be imposed.
In Haji Abdul’s case,36 a person A, who was the owner of certain properties ran into financial difficulties in 1949, and
was adjudged insolvent in 1950, whereupon his property vested in the Office Receiver appointed by the court. This
property was subject to a mortgage, and was sold at a court auction to B, in 1954. Meanwhile in 1951, the Official
Receiver received a bill for approximately Rs 630 pertaining to taxes, from the municipality. He sought the court’s
permission to sell the property to pay the taxes, which was granted to him by the insolvency court. However, after
that neither the official receiver took any action with respect to payment of taxes, nor did the municipality press for
the same. It is interesting to note, that during all this time the property in question was in occupation of tenants and
they were paying rent to the Official Receiver. At the time of the auction of the property, B, the purchaser, made
inquiries from the Official Receiver about the charges due over the property, but was not given any information
about the tax arrears. Soon after he purchased the property he received a notice from the municipality for the
payment of arrears of taxes amounting to around Rs 540, and thereupon, this property was attached and Municipal
Corporation threatened to sell the property. B filed a suit in the court for a declaration that he was the owner of the
property, and that the arrears of municipal taxes due before he purchased the property were not recoverable by
attachment of the property in his hands. He also sought a permanent injunction against the corporation from
attachment of the property, and a declaration that the warrant of attachment was illegal. His main contention was
that he was a bona fide purchaser without any notice, actual or constructive, of the fact of existence of tax arrears
and therefore, could not be made liable to pay the same. The municipality, on the other hand contended, first, that
in auction sales, there is no warranty of title and the purchaser takes the property subject to all the defects of the
title and the doctrine of caveat emptor applies to him. This however was not applicable to the present case, as this
was a case involving a judgment debtor. The second contention was that as per section 14(1) of the Bombay
Provincial Municipal Corporation Act, 1919, the taxes constitute a charge over the property and are recoverable, if
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KINDS OF NOTICE
need be, from the sale of the property. However, a charge can be enforceable against a person only when he has
actual or constructive notice of the same, therefore the municipality contended, that where a person purchases
property in a municipal area, and knows that taxes are to be paid to the municipality he will be deemed to have
constructive notice of the fact, that arrears might be due, and therefore it becomes his liability to pay them. The
Supreme Court, after analysing a bulk of conflicting judicial decisions of several high courts and the facts of this
case, held that constructive notice could not be imputed on B. He could have no reasonable ground for assuming
that there might be arrears, as he had made general inquiries from the person (Official Receiver) who had charge of
the property, but was not given any information about the same. Secondly, the property was in occupation of the
tenants, and he could reasonably assume that dues if any might have been paid out of the rent. Thirdly, accordingly
to the court, the conduct of the municipality itself was surprising. They did not pursue the matter after sending a
notice to the official receiver. This case that took sixteen years, was decided in favour of B, with the court holding
that he was not liable to pay the arrears of taxes amounting to Rs 543. The court, comparing the conduct of both
the parties before it, commented that the municipal corporation was far more negligent and blameworthy than the
purchaser.

2 Ashram v Bhanwarlal, AIR 1974 Raj 188.
3 Ashiq Husain v Chaturbhuj, AIR 1928 All 159.
4 Lloyd v Banks, (1868) LR 3 Ch 488, 490.
5 Ibid.
6 Ibid.
7 N Kasinath v Arun R Rawwli, AIR 2008 (NOC) 1620; Mohideen Sahib v A Ameena Bi, AIR 2007 Mad 133 [LNIND 2006
MAD 3061]; Peddavandla Narayanamma v Peddasani Venkata Reddy, AIR 2007 AP 137 [LNIND 2006 AP 1359]; B
Rajamani v Azhar Sultana, AIR 2005 AP 260 [LNIND 2004 AP 1466].
8 Motilal Jain v Prakash Bhartiya, AIR 2007 (NOC) 377 (MP).
9 Tilakdhari v Khedan Lal, AIR 1921 PC 112.
10 Chaturbhuj v Mansukhram, AIR 1925 Bom 183.
11 Ahmedabad Municipality Corp. v Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]; Municipal Board Cawnpore v
Roop Chand Jain, AIR 1940 All 459.
12 Ahmedabad Municipality Corp. v Haji Abdul, AIR 1971 SC 1201 [LNIND 1971 SC 183]; Akshay Kumar Banerjee v
Corpn of Calcutta, AIR 1915 Cal 178 [LNIND 1914 CAL 201], wherein it was held that statutory charges cannot be
enforced against property in the hands of bona fide purchaser for value without notice. See also Chandu Ram v
Municipal Commissioner of Kurseong Municipality, AIR 1951 Cal 398; Nawal Kishore v Agra Municipality, AIR 1943 All
115; in which the Allahabad High court held that as a general rule omissions to inspect the records of municipality was
gross negligence and if taxes are in arrears the purchaser shall be imputed with constructive notice; see also MC v
Ramjilal, AIR 1941 Oudh 305.
13 Lloyd Banks v PF Guzdar & Co, AIR 1930 Cal 22.
14 Fateh Bahadur Singh v Jang Bahadur Gupta, 2000 4 AWC 2891.
15 Chandni v Anant Bali, AIR 1943 Oudh 398; Nainsukhdas v Gowardhan Das, AIR 1949 Ngp 11.
16 Mathura Prashad v Anandi Kunwar, AIR 1924 All 63.
17 Kausalai Ammal v Sankara Muthiah, AIR 1941 Mad 707 [LNIND 1940 MAD 429].
18 AEK Kaliappa Nadar v SVKR Amrithavala Vandammal, AIR 1973 Mad 255 [LNIND 1972 MAD 269].
19 Mahomed Yunus Khan v Courts of Wards, AIR 1937 Oudh 301.
20 Alwar Chetty v Jagannath, (1928) 54 Mad LJ 109.
21 Kshetra Nath v Harsukhdas, AIR 1927 Cal 538.
22 (1929) ILR 56 Cal 868.
23 Kori Gowramma v The Vyasa Bank Ltd, Kampli, 2001 (2) KarLJ 524 [LNIND 2000 KANT 138] : 2000 (3) KCCR 1841
[LNIND 2000 KANT 138].
Page 7 of 7
KINDS OF NOTICE
24 Imperial Bank of India v U Rai Gyaw Thu & Co, AIR 1923 PC 211; Kshetra Nath Sikdar v Harsukdas Bal Kissen Das,
AIR 1927 Cal 538.
25 Manji v Hoorbai, (1910) ILR 35 Bom 342.
26 Ram Coomar Coondoo v Macqueen, (1872) 11 Beng LR 46.
27 Harak Chand v Sohan Raj, AIR 1990 Raj 109.
28 (1909) ILR 33 Bom 1.
29 Rajaram v Krishnaswami, (1893) 16 Mad 301.
30 Bepin Krishna v Jogeshwar Ray, AIR 1921 Cal 730.
31 Rajaram v Krishnaswami, (1893) ILR 16 Mad 301.
33 AIR 1943 All 115 (FB).
34 AIR 1941 Oudh 305.
35 AIR 1940 All 456.
36 AIR 1971 SC 1201 [LNIND 1971 SC 183].
End of Document
REGISTRATION AS CONSTRUCTIVE NOTICE
REGISTRATION AS CONSTRUCTIVE NOTICE

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
s. 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 thereunder,
(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.
End of Document
GENERAL PRINCIPLE
GENERAL PRINCIPLE
As has already been mentioned, in matters relating to transfer of immovable property, the parties have to generally
observe three mandatory formalities. The transfer must take place with a written document that is signed by the
transferor, is properly attested and is registered. These formalities must be observed, unless the property is of
nominal value (less than Rs 100) or is let out for less than a year, or is mortgaged either by an equitable mortgage
or for a loan of less than Rs 100. Unless all the formalities are complied with, no right will pass from the transferor to
the transferee. It must be noted here that all the formalities except registration are treated as private affair, and
registration is the only formality that makes a transfer from a purely private to a public affair. In transfers of property,
as registration by and large is a mandatory requirement, more so when it is transfer inter vivos, the duty of a
prospective transferee is to search the registers and ascertain the registered transactions that had taken place in
the past, relating to this particular property. A failure to inspect the registers will result in the imputation of
constructive notice with respect to all the transactions that are required, by law, to be compulsorily registered.37
In view of explanation (1) to section 3 of the Transfer of Property Act, 1882, the parties shall be deemed to have
notice of the registered sale deeds, which are effected in favour of the purchasers.38 All purchasers, therefore, are
under a legal obligation to exercise diligence in examining the title recorded in the register to avoid uncertainties
and the risk of perjury in taking parole evidence as to whether the omission to search the register should in any
particular case be attributed to gross negligence.39 For instance, A sells the house by a registered document to B.
He later enters into a contract with C to sell him the same house. Law imposes a duty upon C to inspect the
registers at the Registrar’s office, and if he does that, he would come to know about the sale in favour of B. A failure
to inspect the register will be detrimental to the interests of C, as he would be imputed with constructive notice of
the registered transaction.
37 The Transfer of Property Act, 1882, section 3; see also Rajo Kuer v Brij Bihari Prasad, AIR 1962 Pat 236; Alliance
Bank of Simla v Bhai Kahan, 25 IC 856.
38 G Raju v Govt of Andhra Pradesh (2011) 1 Andh LD 310.
39 Tilakhdari Lal v Khedan Lal, AIR 1921 PC 112; Monindra v Troyluko Nath, (1899) 2 Cal WN 750.
End of Document
LEGISLATIVE HISTORY
LEGISLATIVE HISTORY
The statutory provision providing that registration of a compulsorily registrable document operates as constructive
notice was introduced in the Act by the amending Act of 1929. Though the Registration Act was promulgated in
1908, and provided for compulsory registration for transfer of immovable property (except as aforesaid when it is of
a nominal value or is to let out for a period of less than a year), yet whether registration of a transaction would or
would not amount to notice continued to be a subject of judicial controversy till the Privy Council in Tilakdhari Lal v
Kundan Lal,40 held that as the TP Act, 1882 did not specifically provide it as a principle, registration would not, per
se, amount to constructive notice and this issue would vary depending upon the facts and circumstances of each
case. The view accordingly to Bombay and Allahabad High Courts was that it would amount to notice.41 The
Calcutta High Court, on the other hand, took the view42 that this issue has to be decided keeping in view the facts
and circumstances of each case. Thus, in some cases they held that it amounted to constructive notice, while in
others it was held that there was no duty on part of the prospective transferees to inspect the registers. The Madras
High Court held that it would not amount to notice.43 In 1929, by an express amendment, Explanation I was added
to the definition of notice in section 3. The effect of such inclusion was that the decision of the Privy Council is no
longer good law.
Conditions for Application
The principle that registration of a document would amount to constructive notice of the transaction is subject to the
following conditions.
(1) The instrument has been registered and registration completed in the manner provided in the Registration
Act, 1908;44
(2) The instrument or memorandum has been duly entered or filled in, as the case may be, in books kept
under section 51 of the Registration Act, 1908 and;
(3) The particulars relating to transactions to which the instruments relate have been correctly entered in the
index(s) kept under section 55 of the Registration Act, 1908.45
Constructive notice will not be imputed unless the document is registered, in accordance with the manner provided
under the Registration Act, 1908 and the instrument or memorandum has been duly entered in the books/registers
and particulars are correctly entered in the index(s).
Where the instrument has been registered in accordance with the provisions of the Registration Act, 1908, a party
cannot say he searched the register and could not find the relevant portion; he would take the consequences of his
want of diligence.46 Thus, registration of a mortgaged deed itself is sufficient notice to the persons dealing
subsequently47 with the mortgaged property, particularly where the debtor is a notorious man and his dealings with
the mortgagee were very well known in that locality.48 Thus, where the mortgagee effects a sub-mortgage of the
property with a registered instrument, the registration of the sub mortgage would not amount to constructive notice
to the original mortgagor, who, in ignorance of the sub mortgage, makes the payment to the mortgagee.49 However,
the mere fact that a person resides at a place where the deed is registered is insufficient to fix him with notice of the
deed. Thus, where an agreement provides that movable and immovable properties of A will be subject to a charge
of the money due to B, and he subsequently mortgages them to C, B has no right to contend that he cannot do so.
C would be allowed to plead that he is a bona fide purchaser having no notice.50
Page 2 of 4
LEGISLATIVE HISTORY
The purchaser would not be affected with constructive notice of the registered agreement restricting the use of the
property, if it is shown that the agreement was not indexed in relation to the property sold.51 A mere defect in the
procedure would not invalidate registration,52 but misplaced entries will not operate as constructive notice.53
No Notice where Registration is not Compulsory
Where the registration of a document is not compulsory under the Registration Act, 1908,54 its registration would not
amount to constructive notice.55 Documents that are compulsorily required to be registered are,56 in case of sale of
tangible immovable property of the value of Rs 100 or more. Similarly, in case of a reversion of intangible thing, it
can be made only by a registered instrument. A transfer of tangible immovable property of a value less than Rs 100
can be made by either a registered instrument, of by delivery of property. Thus, if property of less than Rs 100 were
sold by a registered document, its registration would not amount to constructive notice, as it is not mandatory in law
but an assignment deed that conveys title in property for more than Rs 100/- must be registered.57 According to
section 59, where the principal money secured (loan) in a mortgage is Rs 100 or more, a mortgage other than a
mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgager, and
attested by at least two competent witnesses. Similarly, for a transfer of immovable property by way of a lease
under section 107, it is specified that a lease of immovable property from year to year, or for any term exceeding
one year, or reserving a yearly rent can be made only by a registered instrument. In case of all transfers of
immovable property by gift, transfer, according to section 123, must be affected by a registered instrument signed
by or on behalf of the donor (transferor), and attested by at least two witnesses. In case of gifts of movables, there
is an option to execute it either by way of a written attested and registered document or by a simple delivery of
possession. Where registration of a document is not mandatory but only an option, in such cases registration would
not operate as a constructive notice. For instance, a partition deed is not required to be registered, in fact, it is not
required by law to be in writing, as is shown in the following example. A joint family comprises of a father and his
son. They together own a land and a house that the father manages, as the karta. A partition is effected and the
land goes to the son while the father keeps the house. The partition deed is registered. Later, the father sells the
land to B. B is supposed to be vigilant as a prospective transferee, and though the elements of gross negligence
and willful abstention from an inquiry have to be looked into independently, mere registration of partition deed would
not amount to constructive notice. Thus, registration of testamentary instruments;58 document pertaining to transfer
of movable property;59 equitable mortgages;60 or gift of property given to the daughter by way of pasupu kumkuma61
would not amount to constructive notice.
In Harendra Nath Dutta Roy v Rajendar,62 a partition took place between four brothers, by a written, attested and
registered deed. The terms of partition gave preferential right to purchase property to the former co-owners (called
a right of pre-emption), if any one of them decided to sell his respective share. These terms could have been
ascertained by inspecting the partition deed. One of the brothers, without consulting the other co-owners, sold his
share to a stranger, A. A suit of pre-emption was filed by a former co-owner B, who also claimed that A should be
deemed to have constructive notice of the pre-emption clause, on the ground that since the partition deed was
registered its mere registration would amount to a constructive notice of its contents as far as A was concerned.
The court negativated his contention on the ground that a partition may be entered even orally, and there is no
provision in any law requiring the transaction of partition to be registered. The fact is that if it is reduced to writing
and registered, its registration would not amount to constructive notice, as its registration is not a mandatory
requirement in law. Hence, the court held, that registration of partition deed would not amount to constructive notice
on A. Similarly, A, mortgages her jewellery to B, with the help of a written and registered deed but retains
possession of it, with an understanding that if within 10 years she fails to repay the amount, B would have a right to
recover the loan amount by the sale of this jewellery. A sells the jewellery to C, for full consideration. Though the
mortgage deed is registered, its registration would not amount to constructive notice, as mortgage of movables is
not required by law to be compulsorily registered.63 An unregistered document is unenforceable in the eyes of law
for the transfer of property.64 As the registration of a document which is compulsorily registrable under law amounts
to constructive notice on a person aggrieved by the title or interest created by such document, the registration of the
perpetual sub-lease produced is deemed to act as a constructive notice to the world at large.65
Registration as Constructive Notice only for Subsequent Transferees
Registration as constructive notice operates only for subsequent transferees and not for former transferees. It is
implicit from the use of the words ‘any person acquiring such property or any part of or share or interest in such
property is deemed to have notice of such instrument as from the date of registration’. For example, A contracts to
sell a house to B for a sum of Rs 10 lakh, accepts an advance of two lakhs from him but then sells it to C with a
written, attested and registered document. In a litigation between B and C for this property, C cannot take the plea
Page 3 of 4
LEGISLATIVE HISTORY
that as the transaction in his favour is through a registered document, B ought to have constructive notice of the
same, because B is a prior transferee and registration as constructive notice would not operate on prior transferees.
However, in the same case, if after the conclusion of the contract between A and C, A sells the same house to D,
then C would be entitled to plead registration of the transaction as constructive notice as against D as D is a
subsequent transferee.
Time from when Registration would Operate as Constructive Notice
The time from when registration of a document that is required by law to be compulsorily registrable, depends on
the location of the property. If the property is situated in the same district where the document is also registered, it
operates as constructive notice from the same date. However, if it is situated in several sub-districts or it has been
registered in another sub-district, then its registration would operate as constructive notice from the date when the
memorandum was received in the district where it is situated and filed by the sub-registrar of the sub-district where
the property is situated.66
40 47 IA 239 : AIR 1921 PC 112.

41 See Nand Kishore v Anwar, (1908) ILR 30 All 82; Chunilal v Ramchandra, (1898) ILR 22 Bom 213; Dina v Nathu,
(1902) ILR 26 Bom 538; Churaman v Balli, (1887) 9 ILR All 591; Janki Prasad v Kishen Dat, (1894) ILR 16 All 478;
Dundaya v Chenbasapa, (1885) ILR 9 Bom 427.
42 See Nanda Lal v Abdul Aziz, (1916) ILR 43 Cal 1052; Preonath v Ashutosh, (1900) ILR 27 Cal 358; Inderdawan v
Gobind, (1896) ILR 23 Cal 790; Bunwari v Ramjee, (1902) 7 Cal WN 11; Monindra v Troylucko Nath, (1899) 2 Cal WN
750; Atul Kristo v Mutty Lal, (1899) 3 Cal WN 30.
43 See Damodara v Somasundara, (1889) ILR 12 Mad 429; Madras Building Co v Rowlandson, (1889) ILR 12 Mad 383;
Rangasami v Annamalai, (1908) ILR 31 Mad 7; Shan Maun Mull v Madras Building Co, (1892) ILR 15 Mad 268.
45 Gordhandas v Mohanlal, AIR 1921 Bom 161.
46 Srimatty Akshay Kumari v Kanai Lal, 16 IC 618 : (1912) 17 Cal WN 224; Renukabai v Bhavan, AIR 1939 Ngp 132 : 185
IC 33.
47 Alliance Bank of Simla v Kahan Singh, AIR 1914 Lah 204.
48 Ram Narain v Bandi Prashad, (1904) ILR 31 Cal 737; Ashiq Hussain v Chatturbhuj, AIR 1928 All 159; Sahadev v
Shekh Papa, (1905) ILR 29 Bom 199.
49 Hira lal v Chanan Khan, AIR 1914 Lah 326; see also Sahadev v Shekh Papa, (1905) ILR 29 Bom 199.
50 Sahadev v Shekh Papa, (1905) ILR 29 Bom 199; Prabhu Lal v Chattar, AIR 1925 All 557.
51 Gordhandas v Mohanlal, AIR 1921 Bom 161.
52 Ma Pwa May v SRMMA Chettyar Firm, AIR 1929 PC 279; Sah Mukkum Lal v Sah Koondum Lall, 2 IA 210.
53 KV Galliara v U Thet, AIR 1929 Rang 117; Sita Ram v Ram Narain, AIR 1934 Oudh 283.
54 The Act is not in force in Punjab and therefore, whether or not registration would amount to constructive notice would
depend upon the facts and circumstances of each case. See Gopal Singh v Thakur Singh, AIR 1935 Lah 313; Ghulam
Fatma v Kachore Singh, AIR 1940 Lah 269; DAV College Registered Society v Umrao Singh, AIR 1935 Lah 410.
55 Hirachand v Kashi Nath, AIR 1942 Bom 339; Asharfi Devi v Prem Chand, AIR 1971 All 457.
56 As per section 54; paras 2 and 3.
57 Durga Matha Building Constructions Co-op Housing Society Ltd v Sada Yellaiah, AIR 2010 AP 231 [LNIND 2010 AP
503].
58 Baba Ramchandra v Kondeo Jogna, AIR 1940 Ngp 7.
59 Backer Khorasanee v Ahmed Ismail, AIR 1928 Rang 28; Ludlao Hiraman v Kashinath, AIR 1942 Bom 339.
60 Gokul Das v Eastern Mortgage and Agency Co, (1906) ILR 33 Cal 410.
61 P Buchi Reddy v A Sudhakar, AIR 1999 Andh Pra 188.
62 AIR 1974 Gau 43.
63 See Backer Khoransanee v Ahmed Ismail, AIR 1928 Rang 28; Heeraman v Kashinath, AIR 1942 Bom 342.
Page 4 of 4
LEGISLATIVE HISTORY
64 Pravinbhai Becharbhai Viroja v Bhikhabhai Jethabhai Bagda, 2010 SCC OnLine Guj 5607.
65 Lata Chauhan v L S Bisht, (2010) 117 DRJ 715 : (2011) 181 DLT 101(Delhi); G Raju v Govt of Andhra Pradesh, (2011)
1 Andh LD 310.
66 See the Registration Act, 1804, sections 30(2) and 66.
End of Document
ACTUAL POSSESSION AS CONSTRUCTIVE NOTICE
ACTUAL POSSESSION AS CONSTRUCTIVE NOTICE

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.
End of Document
GENERAL PRINCIPLE
GENERAL PRINCIPLE
Where a person other than the transferor is in actual possession of the property, it behoves a prospective purchaser
to ascertain what all rights the person in actual possession really has in respect of the property, and if he omits to
do so and if equities exists in favour of the person in possession, the prospective purchaser would be bound by
them.67 When a person purchases property from the owner knowing that it is in possession of another, he is under a
duty to inquire into the nature of that possession and in the absence of such inquiry, knowledge of the title under
which the possession is held should be attributed to the purchaser.68 Thus, it is the duty of the subsequent
purchaser to inquire from the person in possession as to the precise character in which he was in possession at the
time when the subsequent sale transaction was entered into.69
For instance, A owns a house and gives it to B for a period of five years on rent, with the help of a written, attested
and registered lease deed. A short time before the lease is due to expire, a situation arises where A, the landlord is
in need of money and asks for help from B. They reach an understanding whereby B gives A the required money,
and A agrees to allow B to occupy the house for another period of five years. This second agreement is within the
knowledge of only A and B, and is not recorded anywhere by way of a public document. However, soon after the
completion of the initial lease, A sells the property to C, for consideration. C, as a prudent purchaser, inspects the
registers at the registrar’s office, but fails to inquire from the tenant, in what capacity and for how long would he
occupy the premises. He would be imputed with constructive notice of the right of B to stay in the premises for
another period of five years, as he is deemed to direct his inquiries to the actual possessor of the property and not
be satisfied by the answers given by the owner (transferor). Similarly, A, the owner of a house rents it to B by a
registered lease deed for 10 years. By the end of the term of the lease, A enters into another contract with B,
whereby he agrees to sell it to B for a consideration that is agreed upon as between the parties. This contract is not
registered. Soon thereafter, A sells the house to C. C inquires about the tenant, and A assures him by showing the
original registered lease deed that his tenancy is going to expire within 10 days. C, who knows that the property is
in occupation of a tenant, does not inquire from the tenant, his rights/title over the property, pays consideration to A,
and purchases it. C will be deemed to have constructive notice of the title of B as the future owner of the property
and in a litigation involving B and C, B’s rights will be upheld. This rule is based on the principle of an English case
Daniels v Davison,70 and followed by the Privy Council in National Bank v Paul Hamilton Joseph,71 wherein Lord
Eldson said, ‘where there is a tenant in possession under a lease or an agreement, a person purchasing part of the
estate must be bound to inquire on what terms that person is in possession’.
If there is a tenant in possession, the purchaser is bound by all the equities which the tenant could enforce against
the vendor and such equities extend not only to the interest connected with the tenancy but also to the interests
under the actual agreement.72 In order to operate as constructive notice, possession must be actual possession,73
and not constructive possession.74 A purchaser,75 or a permanent lessee76 of a village is effected with constructive
notice of the right of the cultivating tenants, when they fail to make inquiries about their rights over the land.
The occupation of the property by the tenant ordinarily affects one who would take a transfer of the property with
notice of that tenant’s rights, and if such person chooses to make no inquiry from the tenant, he cannot claim to be
a transferee without notice77 and the suit for possession from original tenant would fail.78 Thus, notice of a tenant in
possession is constructive notice of his right to claim possession under doctrine of part performance in absence of
due inquiries.79 In Shobha Sadanand v Vasantibai,80 the tenant occupied a portion of the property and the
subsequent purchaser lived in the same building. The tenant, on the basis of the oral agreement of sale made with
the owner of the house, made substantial improvements in his portion, which the purchaser of the property could
Page 2 of 4
GENERAL PRINCIPLE
not have failed to observe. The Karnataka High Court held that in such circumstances, the purchaser could not
claim to be a purchaser without notice of the title of the tenant over the property.
Again, in Ram Niwas v Bano,81 a person A, took a shop on rent from B, and subsequently entered into a contract for
the purchase of this shop for a consideration. He paid part of the consideration on the date of the agreement, and
undertook to pay the remaining amount on the date of the execution of the sale deed. Six months later, however, B
sold the shop to C, for a sum of Rs 20,000. A filed a suit for specific performance of the contract, and C resisted it
on the ground that they were bona fide purchasers for value and without any notice of the claim of A and therefore,
the registered sale deed in their favour cannot be cancelled and relief of specific performance could not be granted
in favour of the tenant. On the question of whether C had notice of the rights of A over the property or not, the court
observed that A, at the relevant time was in actual possession of the property, and therefore C should have made
inquiries from A about his title over the property. The court observed that a person may not have actual knowledge
of a fact but he may have notice of it. If the purchasers (C) have relied upon the assertion of the vendor (B) or on
their own knowledge and abstained from making inquiry into the real nature of the possession of the tenant, they
cannot escape from the consequences of the deemed notice under Explanation II of section 3 of TP Act, 1882. C’s
right over the property thus were held as subordinate to A’s rights.
In HN Narayanaswamy Naidu v Deveeramma,82 a son and his mother sold the house to B. It was a conditional sale,
with a stipulation that if within a period of six and a half years, the seller would pay the entire consideration to B; B
would reconvey the property back to them. A little later, however, for a consideration, the seller agreed to release
this right of conveyance in favour of B, with the help of an unregistered agreement. B took possession of the
properties and after the execution of release deed, carried major repairs at his costs. The sellers (mother and son)
however, sold the right of reconveyance stipulated under the original sale deed to a person D, without disclosing to
him, that it has already been released in favour of the buyer B. D, claiming to be a bona fide purchaser of the
reconveyance rights without notice wanted to enforce the same. Since B was in actual possession of the property,
the court held that D had a duty to direct his inquiries to B with respect to B’s rights over the property and having
failed to do that, he would be imputed with constructive notice of the release deed executed by the sellers in favour
of B.
Thus, in the case of unregistered sale deeds, the priority between buyers under interest, if any created by the
unregistered sale deed is that the effect of possession under the first unregistered sale deed would terminate and
prejudice the second buyer.83
Possession of a Small Portion of the Property
The principle of constructive notice does not apply in cases where the person who claims a right or a title over the
property on basis of prior agreement is in possession of a small portion of the property,84 as there is a limit to which
the rule laid down in Daniels v Davision85 can be extended.86 In Kesharmull Agarwala v Rajendra Prasad,87 there
were three persons in occupation of a house. The front portion, called the shop portion was occupied by the first
tenant. The middle portion was occupied by the owner and his family, and the rear portion was occupied by the
second tenant, a doctor. The owner sold the entire house to C, and one of these tenants who claimed a prior
contract with the owner, sought priority of rights on the ground that his actual possession would amount to
constructive notice of his rights on part of the transferee. The court rejected his contention and held that the
purchaser was not bound to make inquiries from every tenant in occupation of a portion of a house, especially when
the owner himself was occupying a portion and inquiry had been made from him. In Md Mustafa v Haji Md Isa,88 A,
was the owner of a building that comprised seven smaller more or less identical portions. Each one of them was
occupied by a different tenant, one of whom was B. According to B, A had contracted to sell him his portion of the
property in lieu of the loan that he had advanced to A. However, instead of selling it to B, A sold the entire building
to C and directed all the tenants, including B, to start paying rent to C. B claimed that as he was in actual
occupation of his portion, C as a prospective purchaser was bound to make inquiries from him about his rights and
a failure to do so would result in the imputation of constructive notice on him. The court held that C, as a bona fide
purchaser, after having made inquiries from the owner, was not duty bound to inquire from each and every tenant in
occupation of a fraction of the property. Hence, no constructive notice can be imputed on him of his rights. In a
matter before a full bench of the Patna High Court in Hari Charan Kuar v Kaula Rai,89 the claimant was in
possession of a little more than one-third of the total property. The total property was sold, including the portion of
the claimant, to the transferee, after entering into a contract with him. The claimant contended constructive notice
on part of the transferee. The court held that since the claimant was in occupation of a small portion of the property,
there was no duty on part of the transferee to inquire from him about his rights.
Bona Fide Purchasers Making due Inquiries

Page 3 of 4
GENERAL PRINCIPLE
Notice cannot be imputed on bona fide purchasers who purchase the property after due inquiries and have acted in
good faith. Where the tenant is not in actual possession of the property on the day of execution of the sale deed in
favour of the purchasers, and the contract to sell is kept a well guarded secret; the owner agrees to sell the property
to the plaintiff but sells half of it to the first defendant and the other half to the second defendant, the defendants are
purchasers with value and without notice of the right of the tenant.90
Thus, actual possession, in order to operate as constructive notice, must satisfy the following conditions.
(i) First, the property should be in possession of a person other than the owner/transferor. Constructive notice
would be imputed only with respect to the title of the actual possessor of the property. For instance, where
the owner of the house sells it to the tenant through an unregistered sale deed, but remains in possession
of the house as the tenant of the new owner, and later sells the same house to another person, C through
a registered sale deed, C cannot be imputed with the constructive notice of the title of owner over the
property as he is not in actual possession of the property.91
(ii) Secondly, the possession must be actual and not constructive.92 For example, A grants a lease of his
premises to B, and later contracts to sell the same to him. B has sub-let premises to C. A then sells it to D.
Here D would not be imputed with constructive notice of the right of B, as he is not in actual possession of
the premises.
(iii) Thirdly, the actual possessor should be in lawful occupation, and should be in occupation of the whole of
the property or a substantial portion of it. If he is in occupation of a small portion of the property, then there
is no duty on the prospective purchaser to inquire from him, his rights and title over the property.93 The rule
also takes into account practical convenience. It may not be feasible for the purchaser to inquire from each
and every tenant, howsoever small his portion may be, and therefore when a person is in occupation of a
small portion of the property, his possession would not operate as a constructive notice of his rights over
the property.
67 Parvathathammal v Sivasankara Bhattar, AIR 1952 Mad 265 [LNIND 1951 MAD 20], (1951) 2 Mad LJ 191.
68 Munimmidi Reddi Papannagari Yella Reddy v Salla Subbi Reddy, AIR 1954 Andh Pra 20.
69 Veeramalal Vanniar v Thadikara Vanniar, AIR 1969 Mad 383.
70 (1809) 16 Ves 249.
71 AIR 1920 PC 274.
72 Veeramalal Vanniar v Thadikara Vanniar, AIR 1969 Mad 383.
73 Gunnamoni v Bussunt, (1890) 16 Cal 414; Birabaro Rout v Dullabh Rout, (1972) 38 Cut LT 161; Bisheshar v Muirhead,
(1892) ILR 14 All 362.
74 Gunnamoni v Bussunt, (1890) 16 Cal 414.
75 Vinayakrao v Gyanoha, AIR 1923 Bom 13.
76 Ahmedbhoy v Balkrishna, (1895) ILR 19 Bom 391.
77 Basruddin Khan v Gurcharan Das, AIR 1970 Pat 304; Ramakrishna Singh v Mahadei Halwai, AIR 1965 Pat 467;
Balchand Mahton v Bulaki Singh, AIR 1929 Pat 284. All these decisions are based on the rule in Daniel v Davision,
(1809) 16 Ves 249; Faki Inrahim v Faki Ghulam Mohidin, AIR 1921 Bom 459; MK Lingarkar v SB Kesarkar, AIR 1972
Bom 100 [LNIND 1970 BOM 55]; Tiloke Chand v JB Beattle & Co, AIR 1926 Cal 204; Parthasaradhi Iyer v Subbaraya
Gramani, AIR 1924 Mad 67 [LNIND 1923 MAD 13]; Munimmidi Reddi Papannagari Yella Reddy v Salla Subbi Reddy,
AIR 1954 Andh Pra 20; Babu Ram Bag v Madhav Chandra, (1913) ILR 40 Cal 565; see also HR Narayanaswamy
Naidu v Daveramma, AIR 1981 Kant 93 [LNIND 1980 KANT 238].
78 Kalyani v Krishnan Nambiar, AIR 1932 Mad 305 [LNIND 1931 MAD 283]; Babu Ram Bag v Madhav Chandra, (1913)
ILR 40 Cal 565.
79 MK Lingarkar v SB Kesarkar, AIR 1972 Bom 100 [LNIND 1970 BOM 55]; See also Ram Krishna v Mahadei, AIR 1965
Pat 467; Tiloke Chand v JB Beattle & Co, AIR 1926 Cal 204.
80 1998 (1) KarLJ 107 [LNIND 1997 KANT 337] : ILR 1998 KAR 485 [LNIND 1997 KANT 337].
Page 4 of 4
GENERAL PRINCIPLE
82 AIR 1981 Kant 93 [LNIND 1980 KANT 238].
83 Ramesh Vajabhai Rabari v Pratiksha Real Estate, (2014) 12 SCC 190 : AIR 2014 SC 2962 [LNIND 2014 SC 579].
84 Mohd Mustaffa v Haji Md. Isa, AIR 1987 Patna 5. See also Manji v Hoorbai, (1910) 35 Bom 342 wherein it was held
that possession of a small portion of the land is constructive notice only with respect to that portion and cannot operate
as notice for the whole land.
85 (1809) 16 Ves 249.
86 Hari Charan Kaur v Kaula Rai, AIR 1971 Pat 478 (FB).
87 1968 BLJR 28.
88 AIR 1987 Pat 5.
89 AIR 1971 Pat 478.
90 Fateh Bahadur Singh v Jang Bahadur Gupta, 2000 4 AWC 2891.
91 Moreswar v Dattu, (1888) ILR 12 Bom 569; See also Pindee v U Hpa, AIR 1928 Rang 237.
92 Gunnamoni v Bussunt, (1890) 16 Cal 414; Birabaro Rout v Dullabh Rout, (1972) 38 Cut LT 161.
93 Mohd Mustaffa v Haji Md. Isa, AIR 1987 Patna 5.
End of Document
NOTICE TO THE AGENT
NOTICE TO THE AGENT

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.
He who acts through another is deemed to act in person, and the agent stands in the place of his principal with
reference to the business for which he is agent, so that his acts and knowledge are the acts and knowledge of his
principal.94 It is a rule of law that imputes the knowledge of agent to the principal, for the agency extends to
receiving notice on behalf of the principal of whatever is material.95 However, for a purchaser to be affected with
constructive notice through his solicitor, the latter must have actual notice.96
94 Mohori Bibi v Dharamdas Ghosh, (1903) ILR 30 Cal 539; Renulabai v Bhavan, AIR 1939 Ngp 132.
95 Rampal Singh v Bal Baddar Singh, (1904) 25 All 1.
96 Greender Chander v Mackintosh, (1879) ILR 4 Cal 897, 910.
End of Document
LEGISLATIVE HISTORY
LEGISLATIVE HISTORY
The language of this provision was worded differently prior to 1929. It said that a person is said to have notice of a
fact, when information of the fact is given or obtained by his agent under the circumstances mentioned in the Indian
Contract Act, 1872. The term ‘given to or obtained by’ signified a definite information on part of the agent or actual
notice. It therefore did not include a constructive notice on part of the agent. Thus, the circumstances under which
an agent could have been imputed with constructive notice were not sufficient to have the same imputed on the
principal. In other words, negligence on part of the agent or willful abstention from making an inquiry would not
make the principal liable, and it was only in those cases where the agent was given or he himself had received
information, that notice of it was imputed on the principal. Explanation III of the present Act amended the definition.
It deleted both, the term ‘given or obtained’, as well as the reference to the Indian Contract Act, 1872.
Scope of Imputation of Notice
The rule that notice to agent amounts to notice to principal, applies provided the following conditions are satisfied.
(1) Notice should have been obtained by the agent during the course of agency. Where the knowledge was
acquired by him prior to his acting as an agent of another, such knowledge cannot be imputed on the
principal,
(2) It must have been received by him in his capacity as an agent,
(3) It must have been received by him in the course of agency business,
(4) It should have been a matter that is material to the agency business; and
(5) It should not have been fraudulently concealed by the agent, from the principal.
In PT Roy Babu v PT Rajan Babu97 A executed a registered power of attorney in favour of his father and authorised
him to do certain acts including the acts of alienation, transfer of right, title and interest over his immovable property.
In exercise of such powers the father alienated the property to B. Six years later the father died, and A challenged
the sale executed by the father.
The issue was: what would be the effect of the act done by the power holder in furtherance to and in pursuant to the
power under power of attorney, whether it would be binding on the principal, and what is the effect of notice of fact
of execution of a document or act done by the power holder on the principal, the title holder. A contended that he
never came to know about the execution of document till the death of the power holder, his father. The High Court
of Kerala observed that it is settled that the notice of agent would be the notice of principal unless the agent
exceeds his power or conceals the notice of fact from the notice of the principal. What was pleaded in the present
case was the negligence on part of A in making an enquiry with respect to the acts and deeds made by the power
holder during the course of power of attorney. The court noted that the interpretation clause to section 3,while
interpreting the expression “when a person is said to have notice” assumes importance and is sufficient enough to
bring any gross negligence in making an enquiry which ought to have been done by a party within the sphere of
“when a person said to have notice” of the Act. Here A had executed a power of attorney in favour of his father as
early as in the year 1981 and kept mum for a long period without making any enquiry regarding what are the deeds
done by him over his property and came with a suit after his death stating that he did not have any notice of the
execution of the acts done by his father, the power holder. The matter, the court held, would squarely come under
Page 2 of 2
LEGISLATIVE HISTORY
the expression “when a person said to have notice” as interpreted under section 3of the Transfer of Property Act,
1882 and he would be deemed to have notice of the acts and transactions executed by his agent.
97 AS. Nos. 488 and 665 of 2001, decided on 12 January 2017.
End of Document

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Date and Time: 09 October 2020 12:15:00 IST

Job Number: 127258633

2. SCOPE OF THE ACT

3. BASIC OBJECTIVES OF THE ACT

5. APPLICATION OF THE ACT

6. [S 2.1] HINDU LAW

7. [S 2.2] TERRITORIAL APPLICATION

8. [S 2.3] SUBSEQUENT EXTENSION OF THE ACT

10. Chapter 1 Movable and Immovable Properties

13. INTERPRETATION CLAUSE

14. DOCTRINE OF FIXTURES

16. GENERAL PRINCIPLE

18. GENERAL PRINCIPLE

19. KINDS OF NOTICE

20. REGISTRATION AS CONSTRUCTIVE NOTICE

21. GENERAL PRINCIPLE

22. LEGISLATIVE HISTORY

24. GENERAL PRINCIPLE

25. NOTICE TO THE AGENT

26. LEGISLATIVE HISTORY

SCOPE OF THE ACT

6 See the Preamble, The Transfer of Property Act, 1882.

BASIC OBJECTIVES OF THE ACT

Act not Exhaustive

12 Tajjo Bibi v Bhagwan, (1899) 16 All 295.

APPLICATION OF THE ACT

(a) the provisions of any enactment not hereby expressly repealed;

22 See The Transfer of Property Act, 1882, section 2(a).

[S 2.1] HINDU LAW

[S 2.2] TERRITORIAL APPLICATION

[S 2.3] SUBSEQUENT EXTENSION OF THE ACT

Section 54, paragraph 2 and sections 3, 59, 107 and 123.

33 Part B States Laws Act, 1951.

[S 2.4] SPECIAL LAWS TO OUST THE APPLICATION OF THE TRANSFER OF

[s 2.4.1] Meaning of ‘Real Property’ and ‘Chattels Real’

[s 2.4.2] Meaning of ‘Personal Property’

Chapter 1 Movable and Immovable Properties

Chapter 1 Movable and Immovable Properties

RELEVANCE OF STUDYING THE DISTINCTION BETWEEN MOVABLE AND

Chapter 1 Movable and Immovable Properties

Concept of Immovable Property

3 See The Transfer of Property Act, 1882.

9 Narasingerji v Panaganti, AIR 1924 PC 226.

Chapter 1 Movable and Immovable Properties

The General Clauses Act, 1897 explains it as follows.

The Registration Act, 1908,16 defines it as under.

Timber Trees and Standing Timber

(a) It must be a timber tree,

Case Laws Relating to Property

Growing Crops and Grass

Benefits Arising out of Land

Things Attached to Earth

15 The General Clauses Act, 1897, section 3(26).

50 Kamal Singh v Kali Mahton, AIR 1955 Pat 402.

67 Haji Sukhan Beg v Board of Revenue, AIR 1979 All 310.

Chapter 1 Movable and Immovable Properties

The application of these doctrines is subject to two exceptions.

Indian Law Relating to Fixtures

Attached to what is Embedded

Other Instances of Immovable Property

Water and Sludge

Chapter 1 Movable and Immovable Properties

Chapter 1 Movable and Immovable Properties