THE TRANSFER OF PROPERTY ACT [TPA or TOPA] LLB NOTES PREPARED IN QUESTIONS- ANSWERS FORMAT

The Transfer of Property Act [TPA] or TOPA came into existence in 1882. Before that, the transfer of immovable property was governed by principles of English law and equity. The preamble of Act sets out the objectives of the legislation. Scope of this Act is limited. It applies only to transfer by the act of parties and not by operation of law. Also this Act deals with a transfer of property inter vivos, i.e., a transfer between living persons. It contains transfer of both movable and immovable property but a major portion of the enactment is applicable to the transfers of immovable properties only. The Act is not exhaustive.

Q State the essential elements of immovable properties?

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

As per Section 3, immovable property does not include standing timber, growing crop and grass. 

The word standing timber includes Babool Tree, Shisham, Nimb, Papal Banyan, Teak, Bamboo, etc. The fruit berating tree like Mango, Mahua, Jackfruit, Jamun, etc., are not standing timber, and they are immovable properties ( Fatimabibi v. Arrfana Begum, AIR 1980 All 394).  

Whether tress can be regarded as movable or immovable depends upon the circumstances of the case. If the intention is that trees should continue to have the benefit of further sustenance or nutriment by the soil (land), e.g., enjoining their fruits, then such tree is immovable property. But if the intention is to cut them down sooner or later for the purpose utilising the wood for building or other industrial purpose, they would be timber and accordingly be regarded as movable property (Shantabai v. State of Bombay, AIR 1958 SC 532

 Growing Crop:- It includes all vegetables growths which have no existence apart from their produce such as pan leave, sugarcane etc 

Grass:- Grass is an movable property, but if it is right to cut grass it would be an interest in land and hence forms immovable property. 

As per Section 3(25), General Clauses Act, 1897 Immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. • 

The Indian Registration Act expressly includes under  immovable property the benefits to arise out of land, hereditary allowances, rights of way, lights, ferries and fisheries.

 • In the case of Sukry Kurdepa v. Goondakull (1872) court has explained that movability may be defined to be a capacity in a thing of suffering alteration. On the other hand, if a thing cannot change its place without injury to the quality it is immovable.

 Example of immovable property • Chattel embedded in earth. • Easement. • Right of way. • Right of enjoyment of immovable property under lease. • A right of fishery. • A right to collect rent of immovable property. • Interest of mortgagee.