DOCUMENTS CITING SECTION 3 & SECTION 5 OF THE TRANSFER OF

PROPERTY,1882 WHICH MAINLY DEALS WITH INTERPRETATION CLAUSE

AND INCLUSIVE DEFINITION OF TRANSFER OF PROPERTY RESPECTIVELY
ALONG WITH THE RECENT CASE LAWS AND JUDGEMENTS.
DOCUMENTS CITNG SECTION 3 OF THE INTERPRETATION CLAUSE OF THE TRANSFER
OF THE PROPERTY ACT,1882
1.Pankaj L.Kothari v The assistant commissioner on 22 november,2013
,Karnataka high court,
B.V.NAGARATHNA
See also T.Lakshmipathi v P.Nithyanandha Reddy (2003)5 SCC 150
Section 3:Interpretation clauseattached to the earth means:
a)rooted in the earth,as in the case of trees and shrubs
b)imbedded in the earth,as in the case of walls or buildings
c)attached to what is so embedded for the permanent beneficial enjoyment of that
to which it is attached.
In this by embedded we refer to the things that have their foundations laid well
below the surface of the earth.An anchor of the ship is not a immovable property in
its normal usage.
The Karnataka high court held in this case,Building is a structure of the nature of a
house built where it is to stand and includes the fabric of which it is composed,the
ground upon which its walls stand and ground embraced with those walls.

2.D.G.Gose and co V State of Kerala (1980) 2 sc 410 AIR 1980 sc 271:

The kerala high court held in this case ,The word building in its ordinary sense
denotes ,a structure or edifice including a space within its walls and usually
covered with a roof such as a house, a church, a shop, a barn or a shed.

3.Duncan industries Lts V state of Uttar Pradesh (2000) 1 SCC 633:

Whether the machinery embedded in the earth can be treated as a movable or
immovable property is the main issue. Mainly it depends on the intention of the
parties who embedded the machinery and also the intention of the parties who
intended alienating that machinery.

FACTS OF THE CASE:

In this case where the transfer of fertilizer plant happened where machinery
transferred as movable property and escaped stamp duty. Whether the machinery
embedded in the earth can be treated as a movable or immovable property.
They are permanently embedded with a view to utilize the same as a fertilizer
plant and the description of the machines as seen in the schedule without any
doubt that they were set up permanently in the land in question with a view to
operate a fertilizer plant and the same was not embedded to dismantle and remove
the same for the purpose of sale as machinery at any point of time and facts as
could be found also show that the purpose for which these machines were
embedded was to use the plant as a factory for the manufacture of fertilizer at
various stages of its production.
Hence the contention that these machines should be treated as movables cannot
be accepted nor can it be said that the plant and machinery would have been
transferred by delivery of possession on any date prior to the date of conveyance of
the title to the land.
The high court observed and supreme court confirmed that machinery relating to
manufacture of fertilizer in a sale of fertilizer plant is immovable property.

4.Harish Chandra v Bansidhar Mohanty AIR 2005 scc 1738

A mortgage instrument was executed by the appellant in favour of the second
respondent ,but it was held that the first respondent who had advanced the money
had also attested the mortgage instrument.
On the first respondent filing a suit to enforce the mortgage,it was contended that
the first respondent was a party to the instrument and hence,the attestation is
invalid.
The supreme court ,while withholding that attestation by a party to an instrument
would make the attestation invalid,ruled that in the present case the first

respondent is not a party to an instrument but is a party to a transaction and being

so,can attest the mortgage instrument.
Thus for a valid attestation ,it is necessary that any person,other than a person who
is party to the instrument ,is the attesting witness.
The object of attestation has been clearly mentioned in this case.
5.Benga Behera & Anrs V Braja kishore Nanda & ors (2007) 9 scc 728
M.L.Abdul Jabbar sahib V H.Venkata sastri AIR 1969 sc 1 147
This case mainly highlights the importance of the valid attestation in matters of
transfer of property ,
it is essential that the witness must put his signature animo attestandi i.e with the
intention of attesting.
6.Md Mustafa V Haji Md.Isa ,AIR 2007 pat 5
Principle of constructive notice does not apply in cases where the person who
claims on basis of prior agreement only he is in possession of a small portion of the
property.
The (plaintiff )tenant was occupying 1/7 th of the property ,occupied by many
tenants claimed prior agreement asked for decree for specific performance.
The claimed defendant took full consideration amount from the property and also
executed a registered sales deed.
The claimed defendant asked all tenants to pay.
The supreme court observed that 1/7th possession of land ,and 6 more tenants are
involved in this case.Thus,the plaintiff cannot be said to be in possession of the
land.

7.Ram Niwas v Bano ,AIR 2000 SC 2921 (2000) 6 sc 685

The principle of constructive notice is applicable when the plaintiff was in actual
possession of the property ,the word notice is of wider importance than the word
knowledge .A person may not have actual knowledge of a fact ,but he may have
notice of it.
The tenant takes suit shop on rent-later he agrees to buy it for 9200 pays 3200 as
consideration amount and agrees to pay the rent on execution of the sale deed.
Later respondent 1 to 4 buy the shop for 20000 Rs,tenant files suit of special
performance , respondent 1 to 5 (vendor & purchasers )-Purchasers deny the
genuineness of the agreement to sell.
Section 19 of specific relief act provides categories of persons against whom the
special performance of a contract may be enforced among them is included under
section 19(b) -any transferee claiming under the vendor by a title arising
subsequently to the contract of which specific performance is sought.
However a transferee for value, who has paid his money in good faith and who
had notice of the original contact, is excluded from the purview of the said clause.
To fall within the excluded clause a transferee must show that,
1.He has purchased for value the property (which is the subject matter of the suit)
2.He has paid the money to the vendor in good faith.
3.He had notice of the earlier contract for sale (special performance of which is
sought against him)
The supreme court observed that both High court dealt with the question of
purchasers ,knowledge of the fact ,but said that the issue in question here is not
knowledge but notice (which is wider than the scope of the knowledge)
The Apex court held that, Purchasers will deemed to have notice of earlier
agreement to sell and it should be found to be true & valid.

DOCUMENTS CITNG SECTION 5 OF THE TRANSFER OF THE PROPERTY ACT,1882

DEFINITION OF THE TRANSFER OF THE PROPERTY:
1.Mohar Singh V Devi Charan ,AIR1988 sc 1365;(1988)3 SCC 63
State of Punjab & ors V Jasbir Singh & ors (2006) 418
Though partition of a joint family property does not amount to a transfer within
the meaning of section 5 of the transfer of the property act,1882
Section 109 ,TP act, is applicable to partition on the principle of Justice,equity and
good conscience.
Partition of the joint family property between two co-owners one co owner filed a
suit for eviction on grounds for bonafide need
Prescribed authority ordered release of premises and made an order granting
possession.
The appeal to the high court it was contended that landlord cannot seek to split
the integrity and unity of the tenancy because it is impermissible under the law.
The high court accepted the agreement
When appealed to the supreme court held that section 109 provides statutory
exception to the above rules and enables an assignee of a part often reversion
to exercise all rights to the landlord in respect of the opinion.
2.N.Ramaiah V Nagaraj ,AIR 2001 Kant,395:ILR 2001 KAR 3466,2001
14)KarLJ
A will does not amount to transfer within the meaning of section 5 of the TP Act

Issues:
Whether bequest of a property under a will is a transfer of property.
Whether direction to a party to maintain status quo in regard to a property
,prohibits him from making a testamentary disposition
Whether a will made during the operation of an order of status quo regarding a
property is void and non est in so far as the bequest relating to such property.
Claim over property by A named in will and succeeding as legal heir
A files suit of temporary injunction against B to stop from alienation.
Judge passes status quo .B dies bequeathing the property to c in her will.
Judge holds that will is against the status quo order.
The high court reversed the judgment contention-held that will does not amount to
transfer as per TP Act and is governed by testamentary succession laws.

3.Dharma Naika V Rama Naika & Anr on 5 February 2008 (2008) 14 scc
517
Bench: Tarun chatterjee,Daheer Bhandari
Transfer Of property (inclusive definition ) In this case,the apex court held that
transfer means a sale,gift ,exchange,mortage with or without possession ,lease
or any other transaction not being a partition among members of a family or a
testamentary dispostition and includes the creation of a charge or an agreement to
sell ,Exchange,mortgage or lease or enter into any other transaction.

4.Ram Bharosey lal gupta 9(D) by lr V M/S Hindustan petroleum ,on 17

April ,2013 (2013)9SCC 714
Bench: Chandramauli Kr.Prased V Gopala gowda
The court held that even though the definition of the lease has been clearly
mentioned under the section 107 of the transfer of the property act.
In this case,mainly the delivery of possession included in section 107
distinguishes the term lease from +++
The definition of the lease mainly comes within the purview of section 5 of the
transfer of the property act,1882.

5.Commissioner of gift tax V Nand Kishore Sakanlal on 3 May ,2013

Transfer of property defined: In the following section transfer of the property
means an act by which a living person conveys property in present or in future ,to
one or more other living persons.
Section 122:Gift is the transfer of the certain existing movable or immovable
property made voluntarily without consideration by one person called the donor,to
another called the done and accepted by or on behalf by or on behalf of the done.
The court held that ,The traditional concept of a gift as reflected in section 122 of
the TP Act,the meaning of gift is governed by the definition of the transfer of
property under section 5 which means that an act by which a living persons conveys
property in present or future to one or more other living persons. But a gift to nonliving person cannot be considered to be a valid transfer in the case of Gift.