Document executed by Illieterate, dumb person

Document executed by an illiterate, dumb person:

Sec.59 of the Registration Rules (under the Registration Act):

“A document executed by a person who is unable to read shall be read out and, if necessary explained to him.

A document written in a language not understood by the executing party shall, in like manner, be interpreted to him.

When a party to be examined is dumb, recourse must be had to the means by which he makes himself understood.”

Property Transfers to be in Writing

Certain Transfer of immovable property requires writing:

Transfer of Property Act does not compel any particular transaction should be ‘in writing.’ (i.e. such transfer should be compulsorily written in a deed).

But the Registration Act prescribes which documents are to be in writing and which are not necessarily to be in writing.

Certain provisions of the Transfer of Property Act require that a particular transfer should not only to be in writing but also to be registered.

Under the Transfer of Property Act the following transfers should be in writing and should also be registered:

1.       Sales of immovable property of the value of Rs.100/- and upwards. (sec.54)

2.       Mortgages of immovable property. (sec.59)

3.       Leases of immovable property, for a term exceeding one year. (sec.107)

4.       Exchange of immovable property, of the value of Rs.100/- and upwards. (sec.118)

5.       Gift of immovable property (sec.123)

6.       As per Indian Contract Act, any contract made without consideration, on account of love and affection, is required to be in writing. (sec.25 of the Contract Act).

7.       A partition of joint family property is not a transfer; hence it does not require any writing.

8.       A family arrangement does not require any writing. (there is no transfer of immovable property, but a mere extinguishment of rights, interest in the immovable property.)

9.       A grant of immovable property to enjoy the usufruct (not the corpus of it) need not be in writing.

Property in the name of the God

Transfer of a property to the God or the Deity:

The Transfer of Property Act (in India) contemplates ‘transfer of a property is only by a living person to another living person.’

The Transfer of Property Act does not stipulate any such transfer of property to any Deity or God or Almighty; because the God is not a sentient person like that of a human being.

But such transfers are also recognized in India; and the God, the Deity are treated as human being;

Thus the Deity, the God, the Almighty can have/hold a property of His own, like that of a living person. In such transfers the God is termed as ‘juridical person.’

There are various types of transfers or giving the property to a Deity, a God, a Temple etc.

If a property is given to a Trust by a deed of trust, the God is the beneficiary, and in such cases, the God is not a legal owner but a beneficiary of that trust.

If a property is given to the God directly, (dedication to the idol itself) then the God becomes the absolute owner; and on behalf of the God, the Dharmakartha acts as His manager.

Under Mohammedan Law, such dedication of property to the God Almighty, is called as Wakf. In such circumstances, the God Almighty is the owner of the property and the general public are the beneficiaries of the Wakf.

Feeding the Estoppel

Feeding the Estoppel:

The Transfer of Property Act in India does not prohibit the transfer of non-existent property (or) Transfer of future property.

Non-existent does not refer ‘the property which is not at all in existence.’

Non-existent means ‘the property which exists, but to which the transferor has no present right.’

Transferring the ‘present right’ in the present property is called ‘legal estate.’

Transferring the ‘non-existent right’ in the present property is called ‘equitable estate.’

If there is conveyance (sale) of any non-existent property (or future property), such transfer does not convey title by itself, but it may operate as an agreement to convey it and it is actually conveyed as soon as it is acquired by the transferor. It is called an equitable estate.

According to this principle (equitable principle) that original conveyance deed (sale deed) itself becomes operative immediately the property is acquired by the transferor automatically, without any further deed to ratify the earlier conveyance.

This equitable principle is also known as “feeding the estoppel.”

According to this principle of feeding the estoppel, there is no fresh conveyance (sale deed) is necessary from the transferor to the transferee. (Sec.43 of the Transfer of Property Act 1882)

Fraudulent Transfers

Fraudulent Transfer

(Sec.53 of the Transfer of Property Act 1882)

 “The transfer of immovable property made with intent to defeat the creditors of the transferor shall be voidable at the option of such creditor.”

But the transfer made in good faith and for consideration does not affect.

The voluntary settlement, however free from fraud, is, by the operation of the statute deemed fraudulent and void against the subsequent purchaser for a valuable consideration.

‘A voluntary conveyance, if made bona fide and without any fraudulent intent and for valid consideration, should not be deemed fraudulent.’

Fraudulent transfer is Voidable and not Void:

If a debtor transfers his immovable property with an intention to defraud his creditors, such transfer is a ‘voidable one at the option of the creditor’ and ‘not void.’ That means such transfer is good and operative. The creditor may set it aside on equitable grounds.

(Void means fictitious or void deed which is void ab initio (from the beginning itself) and it is inoperative. Hence it does not require to be set aside.

Limitation to set aside such fraudulent transfer:

The creditor can file a suit against the fraudulent transfer which is governed by Article 113 of the Limitation Act 1963 i.e. 3 years from the date of such fraudulent transfer.

Compulsorily Registrable Documents

Documents which are compulsorily registrable:

(under the Indian Registration Act 1908)

The Registration Act stipulates that certain documents shall be compulsorily registarable;

If such document is not registered it is not valid in law as per sec.49 of the Registration Act 1908, i.e. it cannot be produced before any authority as evidence.

The following documents are compulsorily registrable:

(a)    Gift deed of immovable property;

(b)   Non-testamentary document which creates, declares, assigns, limits or extinguish any right, title or interest in immovable property; (eg. Sale, mortgage, settlement, release, lease, etc.)

(c)    Non-testamentary document which acknowledge the receipt or payment of money on account of creation, declaration, assignment .. such right, title or interest in immovable property; (eg. Receipt deed);

(d)   Yearly Lease deed in respect of immovable property, for a term exceeding one year;

(e)   Non-testamentary instruments transferring or assigning any decree or award which creates, assign, limit or extinguish any right, title or interest in immovable property;

(f)     Building Agreement relating to construction of multiunit house building;

The following documents are NOT compulsorily registrable: (optional registration):

1.       Any document relating to Shares in a Joint Stock Company;

2.       Any Debenture issued by a Joint Stock Company;

3.       Any document of immovable property of a value of Rs.100/- and below;

4.       Any Court Decree/Order (except a decree relating to immovable property);

5.       Any Grant of immovable property granted by the Govt.

6.       Any Partition made by the Revenue Officer;

7.       Any Loan instrument under Land Improvement Act 1871, under the Agriculturists Loans Act 1884;

8.       Any Order made under the Charitable Endowments Act 1890;

9.       Any ‘endorsement’ made on a mortgage deed acknowledging the payment;

10.   Any CERTIFICATE OF SALE granted to the purchaser of any property sold by Public Auction by a CIVIL COURT.

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Patta Pass Book for Agri. land

Patta Pass Book Act of Tamil Nadu

The Tamil Nadu Patta Pass Book Act 1983

(Received the assent of the President on 24^th January 1986)

Land means (as per this Act) ‘agricultural land, including horticultural land, forest land, garden land and plantations (it does not include house-sites).

Every document relating to transfer of any ‘land’ by sale, gift, mortgage, exchange, settlement or otherwise shall be produced before the Registering Authority along with the Pass Book relating to that land.

The Tahsildar concerned shall cause the necessary changes in the register of Patta Pass Book maintained by him.

The Tamil Nadu Patta Pass Book Rules 1987

The Patta Pass Book, under this Act, shall indicate the name of the ‘registered tenant’ as per the Tamil Nadu Agricultural Land Record of Tenancy Rights Act 1969.

The Tahsildar shall carry out necessary changes in the register of Patta Pass Book maintained by him within fifteen days of receipt of entries of transfer from the Registering Authority.

Will

WILL (a Testamentary document)

Will means ‘the legal declaration of the intention of a testator’ with respect to his property, which he desire to be carried into effect after his death.

Codicil means ‘an instrument made in relation to a will and explaining, altering or adding to its disposition, and shall be deemed to form part of the will.’

Testator is one who makes his will.

Every person of sound mind (not being a minor) may dispose of his property by will.

Persons who are deaf or dumb or blind are also can make a will if they are able to know that they do by it.

An insane may make his will during the interval in which he is of sound mind.

An intoxicated person cannot make his will that he does not know what he is doing.

Unprivileged Will: Every person (except a soldier, mariner or an airman who engaged in actual warfare) may execute his will, which is called ‘unprivileged will.’

Privileged Will: The Will of Soldier etc., who engaged in actual warfare, is called as ‘Privileged Will’ which gives some exceptions in the formalities of making from a regular unprivileged will.

Executor means a person to whom the execution of the last will of a deceased person is, by testator’s appointment. (Executor’s duty is to fulfill the wishes of maker (i.e. testator) of that will  after his death.)

Probate means the copy of a will certified under the seal of a Court of Competent Jurisdiction with a grant of administration to the estate of the testator.

Administrator means a person appointed by the Competent Court to administer the estate of the deceased person, when there is no executor appointed in the will.

A Hindu can make his/her will.

An Indian Christian can make his/her will.

(Indian Christian means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.)

A Mohammedan cannot make a will of his entire property, but can do so in respect of his one-third share property with consent of his sharers.

Left Thumb Impression (LTI)

Literate or Illiterate, put your thumb on a document presented for registration:

In every document presented for registration, whether such person can write his name or not, the impression of the bulb of his left thumb both in the register maintained by the Registrar and as well as the document itself.

1.       If the left thumb does not give a clear impression (or non-existent of left thumb), the impression of any finger of the left hand shall be obtained.

2.       If there is no left fingers, the impression of right thumb or if that also is non-existent, of any finger of the right hand shall be taken.

3.   Thumb impression shall be dispensed with in the case of a person suffering from leprosy or contagious disease.

Document Registration and its Delay

Document presented for Registration and its DELAY

Every document, presented for registration, shall bear its ‘date of execution.’

The date of execution of a document is the date on which it is signed by the party; 

Generally, the date which a document bears at its head is a date of its execution.

The date on which ‘a Certificate of Sale’ by a Civil Court was signed by the Court shall be taken as the date of its execution (for the purpose of its registration).

An ALTERATION in the date of execution of a document, made ostensibly for the purpose of evading payment of the penalty leviable, shall not be recognized.

Time for presentation of a document for its registration:

Every document (non-testamentary document) shall be presented for registration within FOUR MONTHS from the date of its execution. (except Will, which is a testamentary document). –sec.23 of The Registration Act 1908.

Fines for delays in presentation of document for registration:

1.       If the delay does not exceed one week = 25% of the Registration fee as fine.

2.       If the delay exceeds one week but does not exceed one month = 50% of the Registration Fee as fine.

3.       If the delay exceeds one month but does not exceeds two months = 75% of the Registration fee as fine.

4.       If the delay exceeds two months but does not exceed four months = 100% of the Registration fee as fine.

Power of Attorney

Power of Attorney:

Every document, to be registered, shall be presented before the proper Register Officer, by the following persons:

1.       The person executing that document. (Vendor in the case of sale);

2.       The person claiming that document. (Purchaser in the case of sale);

3.       The representative of the person (Guardian of the minor person);

4.       The Agent of the parties to the document, authorized by power of attorney;

The Registrar cannot register a document which is not presented by a person of any one of the four categories referred above.

Irregular presentation renders registration void and a nullity; and it could not be cured;

Recognized Power of Attorney:

The following power of attorney shall alone be recognized –

1.       If the Principal (the person executing the power) resides within India, the power of attorney executed before and authenticated by the Registrar within whose district the Principal resides.

2.       If the Principal does not resides in India (resides in a foreign country) the power of attorney executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Govt.

English Mortgage in India

English Mortgage in India:

English Mortgage means ‘where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called as English mortgage.

(sec.58(e) of Transfer of Property Act 1882)

Irregularity

Irregularity

Irregularity means ‘not according to rule’ and ‘not regular’ i.e. ‘contrary to rule’
The word ‘irregularity’ in common English parlance means and implies contrary to rule.

The Hon’ble Supreme Court, in the case of The Martin Burn Ltd v. The Corporation of Calcutta, AIR 1966 SC 529, while explaining the meaning of ‘irregularity’ observed – ‘that word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be.’

Black’s Law Dictionary defines the word as ‘not according to rule and not regular’ i.e. which stands contrary to rule.

Eo Nomine to a document

EO NOMINE PARTY to a document

Eo Nomine means ‘by that name’ or ‘in his name’

It is a Latin legal term;

In immovable property transactions (sales), the minor’s name is entered in the deed itself as party to that transaction as ‘eo nomine’ party and on behalf of that minor, his/her father or mother can sign that deed as natural guardian. In such cases, the said ‘minor party’ is termed as ‘eo nomine’ party to that deed.

The Hon’ble FULL BENCH of the Madras High Court, in Sankaranarayana v. Kandasamia, AIR 1956 Mad 670, concluded that ‘there is no doubt whatever that a transaction entered into by a guardian relating to the minor’s properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Limitation Act.

When the minor (at the relevant time of execution of a deed) was made ‘eo nomine’ party to that deed, he has to pray for cancellation of that deed, on attaining his majority, because he was an eo nomine party to that deed. (i.e. he has to pay Court Fee ‘on the value’ of that property for such cancellation of that deed, in view of the reason that he was deemed as ‘party to that deed’.)

MINOR's mother can act as guardian

Whether a mother of the minor child can act as guardian, when father is alive?

Minor’s guardian:

The Hindu minor’s natural guardian is defined in Sec.6 of Hindu Minority and Guardianship Act 1956;

Guardian means ‘a person having the care of the person of a minor or his property or both;

The natural guardians of Hindu minors are - in the case of a boy or an unmarried girl, the father and after him, the mother;

While the Hon’ble Three Judges Bench of the Supreme Court in Githa Hariharan v. Reserve Bank of India, 1999 (1) CTC 481:: AIR 1999 SC 1149, considered the definition ‘guardian’ and observed that the phrase ‘the father, and after him, the mother’ does not give an impression that the mother can be considered to be natural guardian of the minor only after the lifetime of the father.

(The word ‘after’ need not necessarily mean ‘after the lifetime’. It means ‘in the absence of’)

Both the parents are duly bound to take care of the minor-person and his property and act in the best interest of his welfare;

Tree is an immovable property

Tree is an immovable property but 'Standing Timber is not an immovable property' as per the Transfer of Property Act 

Tree and Standing Timber – distinction:

Tree is a perennial plant develops wood branches from the ground.

Tree must have two essential characteristics:

1.       It must be perennial and not seasonal;

2.       Its stem must be ‘woody’ and not herbaceous or pulpy;    

      (a banana plant is not a perennial plant; it is a seasonal crop lasting for one year or one and a quarter year or so; its stem is not ‘woody’ but fleshy or herbaceous;)

Timber means ‘wood suitable for building houses, etc.

Standing Timber: It must be a tree that is meant to be converted into a timber so shortly, even though it is still standing on the soil; (where the trees are sold to be cut down to be used as timber, is a standing timber)

Transfer of Property in India

Transfer of Property Act 1882 (in India)

The Transfer of property Act is relating to the transfer of property by ‘act of parties.’

‘act of parties’ means ‘inter vivos’ (transfer between living persons);

This law (transfer by act of parties) does not deal with the ‘transfer by operation of law.’

This law (transfer by act of parties) does not deal with ‘passing of property after death.’

Thus, it is complementary to the law of ‘testate & intestate succession.’

The Transfer of property Act DOES NOT affect the following:

1. The various agricultural tenancy laws.
2. Crown Grants Act 1895 (all grants, gifts made by govt)
3. Easements (The Transfer of Property Act does not apply to easements – Indian Easement Act was passed subsequently to this Act.) The creation or imposition of an easement need not be in writing, or be registered under Sec.54 or 123 of the Transfer of Property Act. (BUT where a right of easement is created in writing and such writing requires registration under the Registration Act.
4.  Landlord Tenant relations in urban tenancy under Special Acts.
5. Rules of certain Mohammedan law, in certain respects, have been expressly saved.
6. Enactments not hereby expressly repealed - at the time of passing this TP Act.
7. It does not operate against subsequent enactments. (Apply the Rule: A special provision prevails over the general.)
8. It does not affect the local custom, usage.
9. Right of Partition is not affected by this Act. (right of partition is an incident of property held in joint-tenancy or tenancy-in-common; co-owners may make an oral partition.)
10. Right of Preemption is not affected by this Act.
11.  As per General Clauses Act Sec.6 (Act 1 of 1868) the repeal of any statute or Act shall not affect anything done, or any proceeding commenced before the Repealing Act came into operation.
12.  This Act does not apply to all transfers by operation of law  under sec.2(d); BUT Sec.57 and Chapter IV are saved, i.e. though they are transfers by operation of law, this Act will apply.
13. This Act does not apply to all transfers by decree or order of a Court of competent jurisdiction;
14.  This Act does not apply to all transfers in executions of a decree or order of a Court of competent jurisdiction.

Rules of Interpretation

Rules of Interpretation and Construction:

Interpretation is the technique of ascertaining the meaning of words and expressions of a statute.

Construction, on the other hand, embraces not only the interpretation of words and expressions but also the discovery of the true intent of the statute.

Hence Interpretation and Construction are often used interchangeably.

There are two general rules of interpretation: 1. Literal and 2. Liberal.

Literal: If the words are plain, precise and unambiguous, they have to be given their natural and plain meaning. The Court cannot read into it words which are not there.

Liberal: The duty of the Court is to discover the language used and the circumstances of the true intention of the Legislature. In case two constructions are possible, the Court has to adopt that construction which will ensure smoother and harmonious working of the enactment, and eschew the other which would lead to absurdity or make the established principles of law nugatory.

Repeal of a Statute

Effect of Repeal: The general principle regarding the consequence of repeal of a statute is that an enactment which is repealed is to be treated, except as transactions passed and closed, as if it had never existed. The effect of repeal has also been stated in Sec.6 of the General Clauses Act X of 1897.

Implied Repeal: The Legislature can exercise the power of repeal by implication. But it is an equally well settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts law with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Of course, this presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together. 

Urban Land Ceiling

The Tamil Nadu Urban Land Ceiling and Regulation Act 1978 was in force from 3.8.1976 to 16.6.1999; thereafter it was repealed by the Repealing Act 20 of 1999.

The Hon'ble Supreme Court observed that if the possession of the land had not been taken prior to the repeal, such possession cannot be taken thereafter and no proceedings can be thereafter initiated under the repealed enactment.