B.A. LL.B. (Five Years) Sem 6 Property Law 2017 Jun Question Paper with Solutions

For full marks, cover: why the Act defines immovable property only negatively (section 3); the positive definitions in the General Clauses Act 1897 (section 3(26)) and the Registration Act 1908 (section 2(6)); "attached to the earth" and its three forms; benefits to arise out of land (Ananda Behera v. State of Orissa); standing timber and trees (Shantabai v. State of Bombay); the general rule of transferability in section 6; each exception in clauses (a) to (i), with the reason for it; spes successionis and section 43 (The Jumma Masjid, Mercara v. Kodimaniandra Deviah); other laws that restrict transfer; a table.

Immovable property: the definition by exclusion

Section 3 of the Transfer of Property Act 1882 does not say what immovable property is. It says only that "immoveable property does not include standing timber, growing crops or grass". It does explain one phrase. "Attached to the earth" means:

1. "rooted in the earth, as in the case of trees and shrubs";

Benefits to arise out of land

A right to take something from land is itself immovable property. Ananda Behera v. State of Orissa, AIR 1956 SC 17, decided on 27 October 1955, concerned oral licences granted for large sums by the Raja of Parikud. They allowed the holders to catch and carry away fish from parts of the Chilka Lake. The Supreme Court held that such a right is a profit a prendre, "a benefit to arise out of land", and so immovable property. Its sale needed a registered instrument, and the oral licences passed nothing.

Trees and standing timber

A tree is rooted in the earth and so is ordinarily immovable. But "standing timber" is excluded. Shantabai v. State of Bombay, AIR 1958 SC 532, decided on 24 March 1958, concerned an unregistered deed letting a zamindar's wife cut and remove timber from his forests. In his judgment Bose J explained the line. "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." Trees meant to keep drawing nourishment from the soil are immovable.

Examples

1. A house, a wall and a well are immovable, being embedded in the earth.

What property can be transferred: section 6

Section 6 lays down the general rule. "Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force." Transferability is the rule, and any restriction must be found in a law.

The exceptions

1. (a) Spes successionis. "The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred." A mere hope is not property.
2. (b) A mere right of re-entry for breach of a condition subsequent can be transferred only to the owner of the property affected.
3. (c) An easement "cannot be transferred apart from the dominant heritage", because it exists only for the benefit of that land.
4. (d) A personal interest. "An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him", such as a right of residence given to a widow personally.

Spes successionis and section 43

The Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847, decided on 11 January 1962, explained clause (a). In 1920 three persons sold land, representing that they were already entitled as reversioners, when they had only a chance of succeeding. When they later became entitled, the Supreme Court held them bound under section 43, which feeds a grant made on a false representation of title. Section 6(a) is a rule of substantive law, and section 43 a rule of estoppel. They operate in different fields.

Other laws

Section 6 also yields to "any other law for the time being in force". State land reform laws, laws restricting the transfer of land granted to certain communities, and the Benami Act are examples. A transfer forbidden by such a law is void, whatever section 6 says.