Immovable property
The
Term "Immovable Property" occurs in various Central Acts. However
none of those Acts conclusively define this term. The most important act which
deals with immovable property is the Transfer of Property Act (T.P.Act). Even
in the T.P.Act this term is defined in exclusive terminology.
1. According
to Section 3 of that Act, "Immovable Property" does not include
standing timber, growing crops or grass. Thus, the term is defined in the Act
by excluding certain things. "Buildings" constitute immovable
property and machinery, if embedded in the building for the beneficial use
thereof, must be deemed to be a part of the building and the land on which the
building is situated.
2. As per Section 3(26) of the 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". This definition of immovable property is
also not exhaustive;
3. Section 2(6) of The Registration Act,1908
defines "Immovable Property" as under:
"Immovable Property includes land, building, hereditary allowances, rights
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 nor grass".
The definition of the term "Immovable Property" under the
Registration Act 1908, which extends to the whole of India, except the State of
Jammu and Kashmir, is comprehensive. The above definition implies that building
is included in the definition of immovable property.
The following have been held as immovable property.
A right to collect rent, life interest in the income of the immovable property,
right of way, a ferry, fishery, a lease of land.
4. The term "Immovable Property" is
defined in other Acts for the purpose of those Acts. As per Section 269UA (d)
of the Income Tax Act, 1961, Immovable Property is defined as under:
a. Any land or any building or part of a building, and includes, where any land
or any building or part of a building is to be transferred together with any
machinery, plant, furniture, fittings or other things, such machinery, plant,
furniture, fittings and other things also.
b.Any rights in or with respect to any land or any building or part of building
(whether or not including any machinery, plant, furniture, fittings or other
things therein) which has been constructed or which is to be constructed,
accruing or arising from any transaction (whether by way of becoming a member
of, or acquiring shares in, a co-operative society, or other association of
persons or by way of any agreement or any arrangement of whatever nature, not
being a transaction by way of sale, exchange or lease of such land, building or
part of a building.
Section 6 of the Transfer of Property Act, 1882 provides for certain rights and properties which cannot be transferred. They are mentioned below:
The technical expression for such a chance is ‘Spes Successionis’. During the lifetime of a person, the chance of his heir apparent succeeding to the estate or the chance of a relation obtaining a legacy under his will is a ‘Spes Successionis’ (chance of succession). Such expectancy does not amount to an interest in property and cannot be made the subject matter of a transfer. The paper aims at analyzing the position of the same while looking at a case study to understand why this is an exception to the general rule and how it is different from other cases of a like nature.
A mere
possibility of an heir succeeding to an estate is excluded from the
category of transferable property. If the person is not totally sure,
whether he will be receiving the property from the third person, then he cannot
transfer it until he gets the ownership of the property.
For e.g., if a
person A, while assuming him to be a legal heir of a property cannot transfer
that property unless he gains the ownership of the property and the property
belongs to him.
2.
Right
to sue-clause(e)
Since a right to sue is the personal right of the party
aggrieved, therefore the right of suing cannot be transferred to any person.
Easement-Clause (c)
An easement is a right which comes to the property
itself. An
easement cannot be transferred apart from the dominant heritage, easement is a
right which exists for beneficial enjoyment of a land and is exercised upon the
land of another person. Easement is an incident of ownership; it is a right
attached with the property and has no independent existence. Hence it cannot be
transferred.
For e.g. a passage in front of the entrance in the house is an easement to the property. When a property is transferred, a right to an easement is transferred with it. A property on easement cannot be built.
4. Public Office-clause(f)
Neither the public office nor the salary of the public office can be transferred before or after it has been payable. The prohibition is based because the public office is held for personal qualities necessary to fulfill. For e.g., if you hold an office of judge, inspector, etc, then you cannot transfer your public office to anyone.
5. Pensions/ Stipends-clause(g)
Pension means a periodical allowance or stipend granted not in respect of any right of office but on account of part services of particular merits Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.
Section 60 of Code of Civil Procedure, 1908 also exempts a pension from attachment in execution of degree against the pension holder.
Sundariya
Bai Chaudhary vs. Union of India, Air 2008
The family pension of the deceased was not in the nature of an estate and it
being not transferable could not be bequeathed by a will. The court added that
other benefits like provident funds, gratuity and other retrial dues and
extra-remunerations would be in the category of an estate.
Right of re-entry-clause (b)
The right of re-entry means a right to resume possession
of the land which has been given to another person for a certain time. It is
usually inserted in lease empowering the lesser to re-enter a breach of
covenants in the lease.
For e.g. A.
grants a lease of a plot of land for 5 years to B with the condition that B
shall not dig a tank on the land. B digs the tank. A relates to transfer C the
right of re-entry for the breach of the condition committed by B. The transfer
is invalid.
7. Future Maintenance-clause(dd)
A right to the maintenance is only for the personal
benefit of the owner, thus it cannot be transferred. The amount irrespective of
the fact whether secured or determined cannot be transferred. It is for the
personal benefit of the person to whom it is granted, therefore, it cannot be
transferred.
This right to future maintenance may have been secured by a charge on the property or its income, or in any other manner. Although the right of maintenance is not transferable, the arrears of maintenance can be transferred. The right of maintenance is a personal right of a Hindu widow which is incapable of assignment but arrears of maintenance can be attached and sold like any other debt.
Nature of Interests-clause(h)
The nature of transfer is forbidden in
certain circumstances.
For e.g., res
communes mean the things of which no one is the owner and may be used by
all the men, res nullius things belonging to nobody cannot be transferred.
Any property becomes non-transferable
when the object or the consideration of the transfer becomes unlawful as per
section 23 of the Indian Contract Act, 1872.A transfer cannot be made in favor
of a person who is disqualified to be a transferee.
Section 8. Operation of Transfer
Section 8 dealing with effects of transfer provides that unless a different
intention is present a transfer of property passes all the interests which the
transferor is then capable of passing in the property and its legal incidents
to the transferee.
Bishwanath Prasad Singh vs. Rajendra Singh, Air 2006
The object of this section is to clearly define what are the legal incidents of
each particular class of property which pass along with the property when it is
transferred.
Section 8 states on the transfer of property not only all the interest of the
transferor in the property passes to the transferee but also his interest in
the legal incidents of the property.
Section 13
The Section 13 of the Transfer of Property Act, 1882 says that “Where,
on a transfer of property, an interest therein is created for the benefit
of a person not in existence at the date of transfer, subject to a prior
interest created by the same transfer, the interest created for the benefit of
such person shall not take effect, unless it extends to the whole of the
remaining interest of the transfer in the property.’’
As a
general rule, a transfer of property will take place only between two living
persons. A child in the mother’s womb is considered as ‘non-existence’ but not
‘unborn’. Therefore, the property can be transferred to the child in the
mother’s womb because the child exists. But not to the child who does not even
exist in the mother’s womb.
Vesting of the interest of the ownership is the basic condition of any transfer of property. As soon as the property is transferred the ownership shifted from transferor to transferee. Therefore, it is necessary that at the time of transfer of the property the transferee is in existence. Otherwise, the transfer will remain uncertain until the transferee comes into existence.
Essential Conditions
The conditions which are to be kept in mind for
transferring the interest for the benefit of an unborn person are:
1.
Prior life interest has
to be created in favor of a person at the date of the transfer
Creation of prior interest means that that the property
has to be transferred to any living person. It is not necessary that the
interest should be created in favor of only one living person. The transferor
can create a successive life interest in favor of several living people at the
same time as well.
For instance, A transfer of property to B for life, and
after him, to C, and then to D again for their lives and then absolutely to B’s
unborn child UB.
2. Absolute
interest must be transferred in favor of an unborn person.
The transferor has to transfer to the unborn person,
whatever he had in the property without retaining anything with him. If the
interest is limited in the property for an unborn person, then the transfer
will be void.
For instance, a father gave a life interest in his
properties to his son and then to his unborn child absolutely. This settlement
was treated as valid. But where the interest in favor of the
unborn child was a life interest, the settlement would be void, and a
subsequent interest would also fail.
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