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MODES OF ACQUIRING IMMOVABLE


PROPERTY
Before dealing with the different modes of acquiring immovable property, we shall
understand what immovable property is.
Transfer of Property Act 1882 describes immovable property as one, which does not include
standing timber, growing crops or grass (Section 3).
Though various landmark judgments are there as to what constitutes standing timber,
growing crops or grass it is generally accepted that standing timber means the trees which are
fit and ready to cut and which do not require any nourishment from the soil.
Registration Act 1908, describes immovable property as land, building, hereditary
allowances, rights of way, light Terries, 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.
Immovable Property is acquired by various means:
Direct Purchase: The immovable property is purchased from the owner by the sale process.
Gift: The owner of the immovable property donates the property to a person voluntarily
without valuable consideration.
By Exchange: The owners of two different properties mutually transfer the ownership of
one property for another.
Will: Will executed by the owner of the property in favor of the beneficiaries. This is also
known as Testamentary Succession.
Inheritance and Succession: By succeeding to the property of the deceased by legal heirs.
This is also called as Intestate Succession.
Ownership: The degree of ownership in immovable property is of two types
(1)

Freehold, where the owner has all the rights and privileges like right to possession,
transfer, and

(2)

less than freehold where his rights and privileges are not full and absolute.

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We are dealing with acquiring freehold interest in immovable property.
Transfer of Property Act 1882, deals with Sale, Gift and Exchange.
Sale: Section 54 defines what a sale is and how it is made. This is the most popular mode of
acquiring the immovable property. According to Transfer of Property Act 1882, it is transfer
of ownership, exchange, for a price paid, or promises to be paid, or part paid or part
promised.
If the value of the property is one hundred rupees or more such a sale can be done only by a
registered document.
The person who transfers the Property is called the Seller or Vendor and the person who gets
the property transferred is called the Purchaser or Vendee.
The law (Transfer of Property Act) imposes certain duties and rights on the seller and the
purchaser. These duties and rights are subject to the terms of contract; if the contract is silent
on any duties and rights, then law will prevail. If the contract expressly avoids such duties
and rights, then the terms of the contract will prevail. As such it is necessary to avail the
services of good legal expert.
Duties of Seller
(1)

A seller should disclose to the purchaser any material defect in the property, or in the
seller's title, which the seller is aware and the buyer is not aware, and the buyer could
not discover the defect with ordinary care.

(2)

Seller is bound to make available to the purchaser the documents of title to the
property, which are in seller's possession or power, for purchaser's scrutiny.

(3)

Seller should answer all the relevant questions of the purchaser in respect of the
property or title thereof.

(4)

The Seller is bound to execute a proper conveyance deed (Sale Deed) subject to the
following.
(a)

The purchaser should pay the amount due in respect of the sale.

(b)

The purchaser should tender the conveyance deed for execution at proper time
and place

(5)

During the period between the contract of sale and the delivery of the property, the
seller is bound to take diligent care of the property and documents to the title.

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(6)
(7)

The seller is bound to give to the purchaser or his agent the possession of the property.
(a) The seller is bound to pay all public charges and rents accrued in respect of the
property.
(b)

Pay interest on all encumbrances on the property, on due cases.

(c)

Discharge all existing encumbrances except where the property is sold, subject to
encumbrances.

(8)

Seller is bound to give Warranty that the interest, which the seller is professing at the
time of sale of the property, subsists and he has power to transfer the same.

(9)

On payment of full purchase money the seller is bound to deliver all the documents to
title of the property, which are in seller's possession or power subject to
(a)

Where the seller is retaining any part of the property comprised in such

documents he is entitled to retain them.


(b)

When the whole of the property is sold to different buyers, the buyer of the lot of

the greatest value is entitled to such document.


Rights of the Seller
(1)

The seller is entitled to the rents and profits of the property till the ownership passes on
to the buyer.

(2)

Seller is bound to charge on the property where the ownership has passed on to the
purchaser before the payment of the whole purchase money.

Duties of the Purchaser


(1)

The purchaser is bound to disclose to the seller any facts, which the buyer is aware,
which materially increases the value of the seller's interest, but the seller is not aware of
it.

(2)

The purchaser is bound to pay to the seller the entire purchase money on completion of
sale.

(3)

The purchaser is bound to bear any loss arising from the destruction injury or decrease
in the value of the property not caused by the seller, where the ownership has passed on
to the purchaser.

(4)

Where the ownership has passed on to the purchaser he is bound to pay all public

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charges, rents, and money due on encumbrances and interest there on.
Rights of the Purchaser
(1)

When the ownership has passed on to the purchaser, he is entitled to the benefits from
improvements increase in the value of the property, rents and profits.

(2)

The Purchaser is entitled, unless he has improperly declined to accept the delivery of
the property, to a charge on the property as against the seller and all persons claiming
under him.

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