DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISKHAPATNAM,

A.P, INDIA.

PROJECT TITLE

Sale of Movable and Immovable property

SUBJECT

Transfer of Property

NAME OF THE FACULTY

Mr. Jogi Naidu

Name of the candidate: P. Sri Lakshmi Swetha

Roll Number: 2017123

Semester: 4

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 Table of contents

1) Acknowledgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .3

2) Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 4

3) Synopsis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

4) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . .. .6

5) Section 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

6) Section 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

7) Section 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . 10

8) Section 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

9) Rights and duties of buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..14

10) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . 21

11) Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . .21

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 Acknowledgement

I would like to express my heartfelt gratitude to our beloved professor Mr. Jogi Naidu sir for
giving me this wonderful opportunity to do a project on the topic of ‘Sale of Movable and
Immovable property’. It helped me to know new many things and gain knowledge. I have
put all my efforts to collect the information and to complete this project.

I would extend my thanks to Transform of property sir for her support, guidance and
encouragement throughout the project. I would also like to thank my friends and family
members for their support throughout the project.

I would also like to thank my university ‘Damodaram Sanjivayya National Law University’
for providing me with all the required materials for the completion of my project.

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 Abstract

Chapter III OF Transfer of property Act defines Sales of Immovable property in transfer of
ownership in exchange for a price paid or promised or part – paid and part – promised.

Personal property is property that can not be moved from one place to another. In general, it
is connected to the ground or the ground on which it sits. The term real estate also includes
land.

In real estate law, real estate has certain property rights that go with the title (total or partial)
of that property. These may include building rights, collection rights, inherited rights, rights
of way, ferries or fisheries. It usually does not include things like grass, crops or standing
timber.

In much of the civil law systems of the world it is the same as "real property"; it is earth or
any permanent feature or structure above or below the surface. In some countries, China, for
example, private ownership of land is not allowed. People in China can obtain land rights for
a fixed number of years for a fee. These rights may be transferred by legal means, including
gifts or sales. They can also own houses, buildings or apartments, but not the land where they
sit. In the United States, real estate is also known as real estate. In the United Kingdom it is
also known as property.

Therefore, a sale can be preceded by a sales contract. A sales contract is simply a document
that creates a right to obtain another document, namely, a deed of sale duly executed. On the
other hand, a sale of real estate is a transfer of property.

According to Section 54 of the Law, a sale is a transfer of ownership in a property in

exchange for a price. On the other hand, the exchange is a transfer of ownership of property
in exchange for ownership of another property. Section 118 of the Law defines exchange as:
"when two persons mutually transfer ownership of one thing to the property of another,
nothing or both are only money, the transaction is called exchange.

Both in the sale and in the gift, ownership of a property is transferred. However, the
difference between the two is that when in the sale, the property is transferred in exchange for
a price, in the gift, the real estate is transferred with any consideration.

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 Synopsis

Topic – Sale of Movable and Immovable property.

Chapter III OF switch of property Act defines income of Immovable belongings in transfer of
ownership in alternate for a fee paid or promised or component – paid and element –
promised.

Non-public assets is property that can not be moved from one area to another. In popular, it's
far linked to the ground or the ground on which it sits. The time period real estate additionally
consists of land.

Research Question :

What are the rules and process regarding sale of movable and immovable property?

Research Objective :

The main objective of this particular research is to enlighten upon the sale of movable and
immovable property.

Literature Review:

This project starts with the basic rules that goes under sale of movable and immovable
property. It covers under section 54 to section 57 of Transfer of property act. This will
involve case laws and judgements included in this project.

Research Methodology :

The research is being conducted and project is done in doctrinal method. In this type of study
the research need not do any filed work. It can be done by referring various books, journals
and article. It is also called theoretical way of study.

Scope of the study :

Section 54 to section 57 of transfer of property act can be applied for sale of immovable
property which involves many number of cases and also the rules that are followed for the
sale of the property.

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 Introduction:

“Immobile property is an immovable object, an element of property that can not be moved
without destroying or altering it, a property that is fixed to the earth, like a plot of land or a
house. Real estate includes premises, property rights (for example, hereditary construction
rights), houses, land and associated assets, and movable property if they are located in, or
below, or have a fixed address. It is delimited by geographic coordinates or by reference to
local reference points, depending on the jurisdiction.””

“In much of the civil law systems of the world (based on Roman-Germanic law, also known
as civil or continental law), real estate is the equivalent of "real estate"; it is earth or any
permanent feature or structure above or below the surface.”

“To describe it in more detail, real estate includes land, buildings, inheritance assignments,
rights of way, lights, ferries, fisheries or any other benefit arising from the land, and things
attached to the land or fixed permanently to anything that is attached to the land Does not
include standing timber, growing crops, or pasture. It includes the right to collect the rent, the
vital interest in the income of the real estate, the right of way, fishing or the lease of land.”

“Other sources describe real estate as "any land or any building or part of a building, and
includes, where any land or any building or part of a building must be transferred along with
any machinery, plant, furniture, accessories or other things, such machinery, plant, furniture,
accessories and other things as well. Any right in or with respect to any land or any building
or part of the building (whether or not it includes any machinery, plant, furniture, accessories
or other things in it). ) that have been built or that are built, accumulated or arising from any
transaction (either by becoming a member of, or acquiring shares in a cooperative or other
association of persons) or by any agreement or agreement Of any nature, it is not deals with a
transaction through the sale, exchange or lease of said land, buildings or part of a building.”

“Real estate cannot be modified, remodelled, added or rebuilt without the signing of an
agreement and without the owner's permission. Construction, alteration and demolition may
also be subject to government regulations, such as the need to obey zoning laws and obtain
building permits.

In addition, a property or an object, which can be moved by destroying it, would be

considered a "destructible property" instead of a "real property".”

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Section 54

“Sale” defined

“Sale is a transfer of ownership in exchange for a price paid or promised or part – paid and
part – promised.1”

“Sale how made : Such transfer, in the case of tangible immovable property of the value of
one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can
be made only by a registered instrument.2”

“Such switch, within the case of actual immoveable property of the fee of a hundred rupees
and upwards, or within the case of a reversion or different intangible aspect, can be made
handiest by a registered tool.

In the case of tangible immovable property of a value less than one hundred rupees, such
transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such
person as he directs, in possession of the property.”

Contract for sale : “A contract for the sale of immovable property is a contract that a sale of
such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.”

Section 55: Right and liabilities of buyer and seller

“In the absence of a contract to the contrary, the buyer and the seller of immovable property
respectively are subject to the liabilities, and have the right, mentioned in the rules next
following or such of them as are applicable to the property sold:

(1) The seller is bound-

(a) to disclose to the buyer any material defect in the property or in the seller’s title there to of
which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary
care discover;”

(b) “to produce to the buyer on his request for examination all documents of titles relating to
the property which are in the seller’s possession or power;”

1
Ramaswami Pattar v. Chinnar Asar, ILR 24 Mad 449.
2
Sohal Lal v. Mohan Lal, ILR 50 All 986.

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(c) “to answer to the best of his information all relevant questions put to him by the buyer in
respect to the property or the title thereto:”

(d) “on payment or tender of the amount due in respect of the price, to execute a proper
conveyance of the property when the buyer tenders it to him for execution at a proper time
and place:”

(e) “between the date of the contract of sale and the delivery of the property, to take as much
care of the property and all document of title relating thereto which are in his possession as
an owner of ordinary prudence would talk of such property and document’s;”

(f) “to give, on being so required, the buyer, or such person as he directs, such possession of
the property as its nature admits:”

(g) “to pay all public charges and rent accrued due in respect of the property up to the date of
the sale, the interest on all encumbrances on such property sue on such date, and, except
where the property is sold subject to encumbrances, to discharge all encumbrance on the
property then existing.”

(2) “The seller shall be deemed to contract with the buyer that the interest which the seller
professes to transfer to the buyer subsists and that he has power to transfer the same:”

“Provided that, where the sale is made by a person in a fiduciary character, he shall be
deemed to contract with the buyer that the seller has done no act whereby the property is
encumbered or whereby he is hindered from transferring it.”

“The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the
interest of the transferee as such, and may be enforced by every person in whom that interest
is for the whole or any part thereof from time to time vested.”

(3) “where the whole of the purchase – money has been paid to the seller, he is also bound to
deliver to the buyer all documents of title relating to the property which are in the seller’s
possession or power:”

PROVIDED that,

“(a) where the seller retains any part of the property comprised in such documents, he is
entitled to retain them all, and,”

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(b) “where the whole of said property is sold to different buyers, the buyers of the larger lot.
The value is entitled to such documents. But in the case (a) the seller, and in the case (b) the
buyer, of the batch of greater value, is bound, all reasonable requests of the buyer, or of any
of the other buyers, as the case may be, and the cost of the person making the request, to
present said documents and provide said information. copies of the same or extracts thereof
that may be required; and meanwhile, the seller, or the buyer of the highest value lot, as the
case may be, will keep such documents safe. Not cancelled and uncoated, unless it is avoided
doing so by fire or other unavoidable accident.”

“(4) the seller is entitled –

(a) to the rents and profits of the property till the ownership thereof passes to the buyer”

“(b) when ownership of the property has passed to the buyer before payment of the entire

The purchase of money, to a charge on the property in the hands of the buyer, any transferee
without consideration or any transferee with notice of non-payment, for the amount of the
purchase money, or any part of it without paying, and for interest on that amount or part from
the date on which the possession was delivered.

(5) The buyer is bound –

(a) to disclose to the seller.”

“Property that the buyer knows, but that has reason to believe that the seller is not conscious,
and that materially increases the value of that interest”

(b) “To pay or tender, at the time and place of completing the sale, the money purchased from
the Seller or person he directs:”

“PROVIDED that. Where the property is sold free from encumbrances, the buyer may retain
out of the purchase – money the amount of any encumbrances on the property existing at the
date of the sale, and shall pay the amount so retained to the persons entitled thereto:”

(c) “When ownership of the property has passed to the buyer, to bear any loss arising from
the destruction, injury or decrease in the value of the property not caused by the seller”

(d) where ownership of the property has passed to the buyer, as between him and the Seller,
to pay all public charges and rent that may be payable in connection with the property, the

9
principal money owed on any lien subject to which the property is sold, and the interest on it
will accumulate later.

(6) the buyer is entitled –

(a) where ownership of the property has passed to it, for the benefit of any improvement in,
or increase in the value of the property, and in the income and profits of the same;

(b) “unless you have improperly refused to accept delivery of the property, to a position in
the property, compared to the seller and all persons who claim under it, to the extent that the
seller interest in the property, for the amount of any money purchased duly paid by the buyer
in anticipation of delivery and interest on that amount; and, when he declines appropriately to
accept delivery, also for payment (if applicable) and for costs (if applicable) of a claim to
force the specific execution of the contract or to obtain a decree for its rescission. An
omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a)
and paragraph (5), clause (a), is fraudulent.”

Section – 56 Marshalling by subsequent purchaser

“If the owner of two or more properties mortgages a person and then sells one or more Of the
properties to another person, the buyer is, in the absence of a contract to the contrary, right to
have the mortgage debt satisfied from the property or properties that were not sold, so To the
extent that it extends the same, but not to impair the rights of the mortgagee or the people.
claim under him or any other person who has taken into consideration an interest in any of
the properties.”

Discharge of Incumbrances on Sale

Section – 57 Provision by court for encumbrances and sale freed therefrom

(a) When the real estate is subject to liens, be it immediate payment or no, it is sold by the
court or in execution of a decree, or outside the court, the court can, if it considers it
convenient, the application of any of the parties for sale, direct or allow payment in court, -

(1) “In the case of an annual or monthly amount charged on the property, or of a sum of
capital charged in a determinable interest in the property for an amount such that, when
invested in securities of the Central Government, the court considers that it will be sufficient,
through its interest, to keep low or otherwise foresee that position.”

10
(2)” in any other case of a sum of capital charged on the property, of the amount sufficient to
cover the nuisance and any interest that derives from it. But in either case, the court will also
be paid the additional amount that the court considers that it will be sufficient to face the
contingency of additional costs, expenses and interests, and any other contingency, except the
depreciation of the investment that does not exceed one tenth of the original amount to be
paid, unless the court, for special reasons (which it will record), considers appropriate to
require a large additional amount.”

“(b) thereupon the court may, if it thinks fit, and after notice to the encumbrances, unless the
court, for reasons to be recorded in writing thinks fit to dispense with such notice, declare the
property to be freed from the encumbrance, and make any order for conveyance, or vesting
order, proper for giving effect to the sale, and give directions for the retention and investment
of the money in court.”

(c) After word served at the individuals interested in or entitled to the cash or fund in
courtroom, the court may also direct fee or switch thereof to the persons entitled to acquire or
deliver a discharge for the identical, and normally may also supply instructions respecting the
utility or distribution of the capital or profits thereof.

(d) An attraction shall lie from any statement, order or route underneath this phase as if the
equal were a decree.

(e) on this section "court" way (1) a high courtroom in the workout of its regular or superb
original civil jurisdiction, (2) the court docket of a District judge within the local limits of
whose jurisdiction the assets or any part thereof is situate, (three) every other courtroom
which the nation authorities may, on occasion, through notification within the authentic
Gazette, claim to be equipped to work out the jurisdiction conferred by means of this
segment.

“Sale for made:

Such transfer, in the case of tangible real property worth one hundred rupees or more, or in
the case of revisions or other intangible things, can only be done by registered instrument.”

In the case of tangible real estate of a value less than one hundred rupees, such transfer can be
made by a registered instrument or by delivery of the property.

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"The delivery of tangible real property takes place when the seller places the buyer or the
person he directs, in possession of the property."

Essentials of a valid sale –

“According to section 54, following are the essentials of a valid sale –

i. the parties, i.e., the vendor and the purchase, have to be in a position. they're also known as
seller and vendee, respectively. They should be competent to contract, i.e., need to of sound
thoughts and feature attained the age of majority. the seller should also have right to sell the
assets and purchase may be any person no longer disqualified to buy a belongings under any
regulation enforced in India.”

ii. “There ought to be a subject-rely of sale. transfer of assets Act deals with sale of
immovable belongings. The transfer of ownership of immovable belongings is handled
below this Act even as sale of movable are handled under the Sale of goods Act, 1930.”

“Immovable assets may be either tangible, together with land, house, matters attaches to
earth, and so on., or it could be intangible immovable assets, along with proper of ferry or
fisheries, or proper to a mortgage debt and so forth. but the immovable belongings must be in
life on the date of execution of sale.”

iii. “Rate or cash attention — charge is an essential element of a sale. A sale is a switch of
possession in trade of cash. fee of fee is not vital for of entirety of the switch but its
reference is important. it may be paid on the time of execution or promised to pay or same a
part of it is able to paid on the time of execution and relaxation may be promised to be paid in
future.”

iv. “Conveyance – In sale, property must be transferred from seller to purchaser. According
to section 54 there must be a registered conveyance in the case of –

(a) tangible immovable property of the fee of Rs. one hundred and upwards; or

(b) a reversion of an intangible thing of any value.

In case of tangible immovable property of a value less than Rs. 100, there must either be,

(a) a registered conveyance, or”

(b) delivery of property.

Sale and contract for sale

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section 54 of the Act defines ‘sale’ as a transfer of possession in trade for a price Paid or
promised or part paid and component promised. Section 54 also defines ‘contract on the
market’ as, “a contract for the sale of immovable assets B a contract that a sale of such assets
shall take location on terms settled among the parties,” accordingly, a sale can be preceded
via a settlement for sale. A settlement on the market is merely a record creating a right to
acquire another record particularly, a duly achieved sale deed. then again, a sale of
immovable property is a switch of possession. A sale passes an absolute hobby in the
property to the patron, but a contract for sale does no longer of itself create any hobby in, or
fee upon the belongings in favour of the purchaser. It does no longer carry any little to the
consumer. A sale have to be registered, if it deals with the conveyance of exact immovable
belongings of the value of Rs. one hundred or more, or a reversion or any intangible things. A
agreement for sale want now not be registered in any respect.

Sale and Exchange

“According to phase fifty four of the Act, a sale is a switch of ownership in a belongings in
alternate for a rate. on the other hand exchange is a transfer of ownership in property in
alternate of ownership of any other belongings. section 118 of the Act defines change as,
“when folks jointly switch the ownership of one element for the ownership of every other,
neither thing or both thing being cash handiest, the transaction is known as change. Therefore
in each, there is switch of absolute hobby within the belongings, however real difference is
that during sale, the consideration is money, whereas in exchange, it's miles any other
belongings or whatever of cost.”

Sale and Gift :

“In both sale and present, there may be switch of ownership of an immovable assets. but the
distinction between the 2 is that wherein in sale, the ownership is transferred in exchange for
a rate, in present, the immovable assets is transferred with any consideration. In sale, if the
valuation of immovable belongings is Rs. a hundred or more, than it's miles to be effected
simplest via registered instrument. however in case of a gift of an immovable belongings, it
ought to be made most effective with the aid of registered tool regardless of the valuation of
the assets.”

Rights and Duties OF Seller and Buyer (Section 55)

Sellers Duties and Rights

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1. Sellers duties before sale –

(a)the seller is sure to reveal to the buyer any material illness within the property or
identify, of which seller is, and client isn't aware, and which consumer couldn't with normal
case discover. [section 55 (1)(a)]

(b) the seller is certain to the buyer on his request for exam of all documents of name relating
to the property which can be inside the vendor’s ownership or energy. [Section 55(1) (b)]

(c) the seller is certain to the buyer on his request for exam of all documents of name relating
to the property which can be inside the vendor’s ownership or energy. [Section 55(1) (b)]

(d) the seller’s next obligation is to execute the conveyance. he is sure on fee or smooth of the
amount due in appreciate of the price, to execute a right conveyance of the belongings whilst
the purchaser tenders it to him for execution at right time of region. [section 55 (1) (d)]

(e)Seller is sure to take case of the belongings and documents of identify. between the date of
settlement of sale and the transport of the property, he's certain to take as lots case of the
property and all documents of name touching on thereto which can be in his possession as an
owner of normal prudence would take of such belongings and files. [section 55(1) (c)]

(f) it's far the seller’s duty earlier than the of completion of sale to pay all of the outgoings.
before finishing of sale, the vendor keeps to the owner of the property, therefore the
authorities dues, etc., are to be paid through him. [section 55(1)(g)]

1. Seller duty after sale –

(a) After of entirety of the sale, it is the vendor’s duty to gave possession to the buyer. the
seller is sure to provide, on being so required, the consumer or such person as he directs, such
possession of the belongings as its nature admits. [section 55(1)(f)1

(b) it is the seller duty to covenant for title. Section 55(2) of the act provides that – the sellers
be deemed to contract with the purchaser that the interest which the seller professes to switch
to the customer subsist and that he has power to switch the identical. (that is additionally
called implied covenant for title): furnished that, in which the sale is made by using a person
in a fiduciary man or woman, he shall be deemed to agreement with the buyer that the seller
has executed no act whereby the belongings is weighted down or whereby he's hindered from
moving it.

14
(b) The benefit of the contract mentioned on this rule shall be annexed to, and shall go with,
the interest of the transferee as such, and can be enforced by using each person in whom that
interest is for the whole or any element thereof occasionally vested.”

(c) “It's far the seller responsibility to deliver title-deeds on receipt of the rate. section 55(3)
of the Act offers that, where the complete of the acquisition-cash has been paid to the seller,
he is likewise sure to deliver to the consumer all files of name relating to the property which
is inside the seller’s possession or electricity. but, he proviso to section 55(3) lays down that:”

 in which the vendor retains that part of the belongings with him, which of finest cost
and, such belongings is blanketed inside the documents, the vendor is entitled to hold
all the files with him.
 in which the complete of such belongings is offered to numerous buyers the men and
women who buy the most important part of the assets might be entitled to maintain all
of the documents.

1. Seller’s Right after sale – “Section 55(4)(a) provides that ‘the vendor is entitled to the
rents and earnings of the property until the ownership thereof passes to the consumer’.
‘accordingly, earlier than completion of the sale, the vendor is entitled to all of the rents,
profits or another advantage. interests of the assets.”

2. Seller’s Right after sale –“If after crowning glory of sale, the fee or any part of it stay
unpaid, the seller acquires a lien or charge on assets. thus, to phase fifty-five(4)(b) if
charge remains unpaid, the vendor cannot refuse delivery of possession for can declare
again the possession if already given to consumer, but he (supplier) is given a right to get
better unpaid purchase money from and out of the belongings.”

Rights and Duties of Buyer

The rights and responsibilities of purchaser are concern to the agreement in the absence of
any contract to the opposite, the rights and obligations of dealer and consumer are ruled
by means of section 55, transfer of property Act. The rights and responsibilities of
customer under the provisions of section 55 of transfer of property act.

1. Buyers duties before sale –

Before of completion of sale, it is the responsibility of the purchaser to disclose, statistics

which materially will increase the value of belongings, section fifty five(5)(a) of the Act

15
 affords that, "the purchaser is sure to reveal to the vendor any truth as to the character or
volume of the seller’s interest within the property of which the buyer is aware, however
of which he has reason to believe that the vendor is not conscious, and which materially
will increase the cost of such interest.

The buyer is bound to pay or tender the purchase money to seller [section 55(5)(b)].

I. Buyer’s Duties after sale –

(a) where the possession of the assets has surpassed to the buyer, the buyer is sure to
endure any loss bobbing up from the destruction, injury or decrease in cost of the
belongings not resulting from the seller. [Section (5) (c)]

(b) in keeping with segment 55(five) (d) after the of entirety of sale, the client is at risk of
pay the outgoings, e.g., government dues, rents, revenue or taxes, because the buyer turns
into the proprietor of the belongings.

II. Buyer’s Right before sale –

“section 55(6)(a) of Act affords that the client is entitled to (except he has improperly
declined to simply accept transport of belongings)

 “A charge on the property for the purchase money properly paid by him in
anticipation not the delivery.
 Interest on such purchase money.
 The earnest, and cost awarded to him in a suit to compel specific performance of
the contract or to obtain a decree for its recession in case he properly declines to
accept delivery.”””

III. Buyer’s Right after sale –

“After sale, the buyer is entitled to the benefits of any improvement in, or increase in
value of, the property, and to the rents and profits thereof, section 55(6)(a).”

Hon’ble Apex court docket in Ghanshyam Das v. Anant Kumar Sinha 3 handling provision
of the code regarding execution of decree and orders, determined in following phrases –

“To date as the question of executability of a decree is involved, the Civil manner Code
consists of intricate and exhaustive provisions for managing it in all aspects. The several

3
AIR 1991 SC 2251

16
guidelines of Order 21 of the code take care of distinct situations presenting powerful
remedies no longer best to judgment- borrowers and decree-holders however additionally to
claimant objectors, because the case can be.”

“It is most effective the execution, which exhibits and indicates the importance of the decrees
to be exceeded and the pedestal of the court docket and sanctity of the file. As such, the
decrees are required to be achieved with pressure, so that the Decree holder having a
document containing assertion of his rights won't experience cheated or helpless having
earned no culmination of the lies were given settled by way of him from the court even after
spending a long time altogether.”

“Order 21 of the Code of Civil manner deals with the solemn act of execution of the decrees
exceeded by means of the Courts from grassroots to the pinnacle. ultimately, after the
judgment attains finality or in which there may be no live within the execution via any
Appellate or Revisional court, it's miles the court docket of unique jurisdiction which
performs this sacred act of implementation of the execution. The provisions of the Civil
method Code, 1903, on the subject of income are contained so as XXI, policies 64 to 102.
Rule 64 to seventy - three cope with “sale commonly”; regulations seventy - four to eighty -
one, with “sale of moveable assets”; and rules 82 to 104 with “sale of immovable”.

The provisions appear to be for the benefit of the transferee, as according to Nilayam disputes
relating to title or pre-emption are also to be settled before the issue of pitta. Whatever may
be the utility of the pitta proceedings, the Hidetaka contains no provision, which may go to
support the contention that the sale remains incomplete without acquiring the path from the
Nazool Department.”

By tangible property is no doubt here meant land, as a thing which is capable of present
possession, while intangible property comprises rights over things or land or something
issuing therefrom or exercisable therein as distinct from its enjoyment, such as, for instance, a
right to future crops,2 redeem a mortgage3 a contingent as distinguished from a vested
interest,4 reversion,5 rents" services, titles, commons, and other solo, pensions, offices,
franchises, liberties, and dignities, but not a debt which has already become due to the vendor
by a third person. Hence, an assignment of the village profits already due by a lambada to a
co-sharer being an assignment of a debt does not require to be registered. A sale by a
mortgagor of his interest in immovable property subject to usufructuary mortgage is a sale of
tangible immovable property.9

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In Amar singh v. Om Prakash,4 it was held that when an owner of property which is subject
to a lease, sells it to his tenant, he sells reversion and the instrument of sale must be registered
under Sec. 54 of the Transfer of Property Act.

A contrary view was taken by the majority of the learned Judges in K.Narain v. Laxmi
Narasimbam5. In that case Mukerji, quoted several passages from eminent jurists like
Holland, Salmond and Pollock in support of the proposition that a person remains an owner
of the property notwithstanding that he might have executed a mortgage or a lease of the
property.

1n the case of Thakurdas v. Sobhachan6, of the agreement for sale provided that” the
vendor shall forthwith deliver the title-deeds which are in the possession of vendor’s
purchaser’s attorney on his accountable receipt for inspection”. The use of the expression
”shall forthwith deliver” was said to import an unconditional obligation to send the title-
deeds irrespective of any other consideration.

Held that the use of the word ”shall” in conjunction with the word ”forth with" in regard to
the obligation to deliver the title-deeds does not militate against a request in regard thereto on
the part of the purchaser’s solicitor and does not amount to a contract to the contrary within
the meaning of Sec. 55 (1) (b) Cl. (3) in this case only meant that on a request being made for
the title-deeds by the purchaser’s solicitor the vendor was under an obligation to send the
same with all reasonable dispatch. Use of the word "shall" in conjunction with the word”
forthwith”.

In order to make out a good title to the property the vendors must show that. the property is
free from all encumbrances, that the vendee could not be expected to take a title with a cloud
thereon, or compelled either to accept a doubtful title without investigation to rescind the
contract. He could file a suit for specific performance and ask for an inquiry into the title by
the result of which he would be bound. They also establish that the existence of a mortgage
over a property would make the title thereto incomplete, and that knowledge on the part of
the purchaser of defects in title of the vendor does not take away his rights to the statutory
covenants unless there is specific provision to cover such defects also.

4
63 Punj. L.R. 345 AT P. 346
5
AIR 1955 Hyd. 104
6
AIR 1936 Lah. 756

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 “In Pheku Mian v. Syed Ali7 a Division Bench of the Madras High Court pointed out that
the doctrine that the time gain not be of the essence the contract which arises on the
construction of contracts of sale of irremovable ropery, is not applicable to contracts of resale
of ropery conveyed and that the right to repurchase being an Option must be excised
according to the strict terms of the power. In support of the contention that time was not the
essence of the contract reliance is placed on the privy council decision in Jamshed Kodaram
v. Burjorji Dhunjibhoy. The cases, however, where there is an option .of repurchase of
immovable property once sold from an exception to his equitable rule, as has been noted in
Pollock and Mulla’s3 Indian Contract Act, and where a time limit has been laid down on the
agreement of repurchase and where there is no question of mutual obligation the exceptional
provision for the seller’s benefit must be exercised strictly within the time prescibed.” It is
settled law that in the case of agreement of repurchase the conditions of repurchase must be
construed strictly against the original vendor and the stipulation with regard to time of
performance of the agreement must be strictly complied with as time must be treated as being
of the essence of the contract in the case of an agreement of reconveyance. If the original
vendor fails to act according to the terms of the contract, the right to repurchase is lost and
cannot be specifically enforced. Though in a sense both are agreements, as pointed out by the
Supreme Court in 5' Is case.‘ The contract to recovery is in reality a concession made by the
vendee to the vendor and sometimes it has been described to be in the nature of a privilege.

It is noted that according to the plaintiffs, they have taken possession as part performance of
agreement and to over come the bar provided, it appeal one of the conditions for stipulation is
to the effect that the sale deed has to executed after expiry of period _of non-alienation. To go
by pleadings of t}. defendants themselves that they are in possession of the suit property, am
such being the case, there cannot be any such parting of possession by the defendants. When
once such a stand is taken by them, though it is held by the Court that the property has been
delivered to the plaintiffs by the defendants now the defendants cannot say that possession
has been period with and as such, it amount to transfer and hit by Sec.5(3) of the Karnataka
Village Officers Abolition Act. The word transfer of Property Act, conveying the title or
interest in the property apart from parting with possession. Some of the cases 01 transfers are
sale, gift, lease and mortgage.

Intention of parties -
7
I.L.R. 15 Pat. 772

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In Sohan Lal v. Mohan Lal8 had never been delivered to the plaintiff and a notice had been
given the plaintiff to pay the consideration money, failing which the sale deed be given effect
to. The Trial Court had found that the plaintiff had never tendered the consideration money,
that the sale deed had never been made om to him and that the possession of the properties
covered by the sale deed had also not been transferred to him. Reviewed most of the dictions
to the question, and he came to the conclusion that the propositions detumble hum the
rulings.

8
I.L.R 15 Pat. 772

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Conclusion :

Sale is a transfer of possession in exchange for a price paid or promised or element paid and
element promised. The transfer with the aid of manner of sale of actual immovable
belongings of the fee of rupee one hundred and above may be made through a registered
instrument. The transfer with the aid of manner of sale of exact immovable belongings of the
price of much less than a hundred rupees may be made both with the aid of a registered tool
or by means of shipping of the property.

Sale of immovable assets has been described as a transfer of possession in alternate for a
charge paid or promised or component paid and component promised.

In keeping with switch of assets Act, immovable belongings does now not include standing
wooden, developing vegetation or grass.

The benefits to rise up out of land is an hobby in land e.g. life hobby within the profits of
immovable property, right of way, ferry, fishery, rent of land, proper to enter upon land and
to carry away fish from a lake, proper to enter upon land and to put off bushes, right to
acquire dues at a honest hung on the land, right to rear land. but right to get better
preservation charged on land, royalty are not blessings to arise out of land.

Bibliography :

 The transfer of property act – Dr. Justice A. R. Lakshmanan

 The transfer of property act – Dr. G. P. Tripathi
 Property Law – Dr. Poonam Pradhan Saxena
 Transfer of Property Law – Shiriniwas Gupta

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