Interpretation Clause

TPA
 Sec 3. Interpretation clause
• “Immovable Property” does not include standing timber,
growing crops, or grass;
 Definition under GCA
• The definition of “immovable property” in section 3(26) of
the General Clauses Act is not exhaustive. That definition
is as follows:
• 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.
 “benefit to arise out of land”

• A “benefit to arise out of land” is an interest in land and,

therefore, immovable property.

• The Registration Act, however, expressly includes as

immovable property benefits arising out of land, hereditary
allowances, rights of way, lights, ferries and fisheries.
 “attached to the earth”
• The TP Act, 1882 defines the phrase “attached to the
earth”, but gives no definition of immovable property
beyond excluding standing timber, growing crops and
grass.
• These are no doubt excluded because they are only useful
as timber, corn and fodder after they are severed from the
land.
 attached to the earth (Definition under
TPA)
• “attached 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; or
• (c)attached to what is so imbedded for the permanent
beneficial enjoyment of that to which it is attached;
 Standing Timber
• Standing timber are trees fit for use for the purpose of building or repairing
houses
• This is an exception to the general rule that growing trees are immovable
property.
• In order that trees may be considered to be standing timber, they must
first be trees whose wood is suitable for use for building houses, bridges,
ships, etc.
• If a tree is a growing tree, drawing sustenance from the soil, it is
immovable property; where, however, it is to be cut soon, the amount of
sustenance it will draw from the soil is negligible, and is to be disregarded.
 Growing Crops
• These are not limited to annual crops or emblements as
they are called in English law.
• Growing crops have been held to include all vegetable
growths, which have no existence apart from their produce
such as pan leaves and sugarcane.
 Grass
• Grass is movable property, but it would appear that a right
to cut grass would be an interest in land and, therefore,
immovable property.
 Combined definition
• In the larger definition of “immoveable property” “anything attached to the earth”
would normally be treated as immoveable property
• a tree which is attached to the earth and seeks its nourishment and sustenance
from the soil in which it stands will be deemed to be attached to the earth with the
only distinction that if it was tree of a kind which is usually used as timber and was
of sufficient size so as it could be used as such and is intended to be severed from
the soil reasonably thereafter, it may be treated to be immoveable property.
• Therefore, apart from the size of the trees, the relevant consideration would be the
intention to cut the tree or to let it remain attached to the earth.
• In the former case, it will be termed as “standing timber” while in the latter it must
remain immovable property.
 Examples of immovable property:
• A tree (except standing timber)
• varashasan or annual allowance charged on land
• a right to collect dues at a fair held on a plot of land
• a haat or market
• a life interest in the income of immovable property
• a right of way
• a ferry
• a fishery
• a lease of land.
 Movable Property
• There is no definition of movable property in the TP Act,
1882.
• Movable property has been defined in the General Clauses
Act to mean “property of every description except
immovable property”.
• The Registration Act defines movable property to include
property of every description excluding immovable property,
but including standing timber, growing crops and grass.
 attested
• “attested”, in relation to an instrument, means and shall be deemed
always to have meant attested by two or more witnesses each of whom
has seen the executant sign or affix his mark to the instrument, or has
seen some other person sign the instrument in the presence and by the
direction of the executant, or has received from the executant a
personal acknowledgment of his signature or mark, or of the signature
of such other person, and each of whom has signed the instrument in
the presence of the executant; but it shall not be necessary that more
than one of such witnesses shall have been present at the same time,
and no particular form of attestation shall be necessary;
• The definition of the word “attested” was inserted by the
Transfer of Property (Amendment) Act 27 of 1926,
• and was further amended by the insertion of the words
“and shall be deemed always to have meant” by the
Repealing and Amending Act, 1927, to show that the
definition had retrospective effect.
 Mandatory attestation

• Section 63 of the Indian Succession Act read with section

68 of the Evidence Act and section 3 of the TP Act,
1882 makes a mandatory obligation to have the document
attested, and evidence of such attestation be made
available before the court at the time of the trial.
 Who may Attest
• Despite importance of attestation, no qualifications are stipulated
in the TP Act, 1882 in this regard.
• An illiterate person may attest the signature of the executant by
making his mark.
• A party to a deed cannot be an attesting witness, for the object of
attestation is protection against fraud and undue influence.
• Where a person executes a deed as a power of attorney or an
agent of another, he is a party to the deed, and he cannot attest
his own signature.
 Forming Attestation
• Attestation need not be in any particular form, a mere signature is
sufficient;
• it need not be made at any particular place in the deed, but cannot
take place before the execution of the deed.
• Attestation prior to execution of the document is no attestation in the
eyes of law.
• However, the section requires that the attesting witness should have
signed in the presence of the executant; otherwise the deed is not
validly attested even though the attesting witness did actually witness
execution.
 Registering Officer as Attesting Witness

• There was a conflict of decisions as to whether the signature of the

registering officer and of the attesting witnesses on the registrar’s
endorsement made to satisfy the requirements of the Registration Act,
constitute a valid attestation if made in the presence of the executant.
• Some decisions had held such attestations to be valid
• but there were contrary decisions.
• Courts in various decisions held that ordinarily the registering officer
put his signature in the performance of his statutory duty, and not
with an intention to attest.
 Notice
• Notice means knowledge or information of a fact
• Where a person has knowledge of any fact or it could be proved that under the
circumstances he must have knowledge of that fact, he is said to have notice of that fact.

• “a person is said to have notice” of a fact when he actually knows that

fact, or when, but for wilful abstention from an enquiry or search which
he ought to have made, or gross negligence, he would have known it
• For instance, in section 40, if A conveys to C property which he had by a previous contract
agreed to sell to B, then B can enforce the contract against C, if C had notice of it, but not
otherwise.
• Notice may be either express or constructive, while notice to an agent is sometimes called
imputed notice in so far as it affects the principal.
 Actual or Express Notice
• Express notice, or actual notice is notice whereby a person
acquires actual knowledge of the fact.
• It must be definite information given in the course of
negotiations by a person interested in the property, as a
person is not bound to attend to vague rumors or
statements by strangers.
• Notice must be given in the same transaction, as notice
given in a previous transaction may have been forgotten
 Requisite of Express Notice
• The knowledge or information must be definite
• It must not be hearsay or rumours
• Only the knowledge of parties interested in the transaction is actual notice
regarding that transaction
• The knowledge of information must be about or related to the transaction
in question
 Constructive Notice
• Doctrine of Constructive notice is based on equity
• Where a person actually does not know anything about the
fact but court treats that under the circumstances he must
be deemed to have knowledge of that fact
• Constructive notice treats a man who ought to have known
a fact, as if he actually does know it.
 This legal presumption of notice
arises from—
• (a) Wilful abstention from an inquiry or search
• (b) Gross negligence
• (c) Registration
• (d) Actual possession
• (e) Notice to an agent
 Wilful abstention from an inquiry or search

• Wilful abstention from an inquiry or search means deliberately avoiding

to take notice of a fact which a reasonable man would have taken in the
normal course of life
• Illustration
• A registered letter was sent by landlord A to his tenant B. B refuses to take
the delivery of the letter . B has constructive notice of the contents of the
letter.
 Gross Negligence
• Negligence means carelessness
• It is omission to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human affairs,
would do and doing something which prudent and reasonable man would
not do.
Lloyds Banks Ltd. V. P.E. Gizder & Co. AIR
1930 Cal 22
• G Deposited the title deed of his property to secure a loan from Bank N
• After some time G pleaded that he wants to sell the property and
purchaser wanted to see the deed
• After inspection of papers he would return the papers to bank
• Relying upon him Bank N gave him papers, he deposited the same with
Bank L and raised another loan
question before court was whose interest would be on priority??
 Held
• It was held that since this was a mortgage by deposit of title deed in
which the only security for the repayment of loan is the possession of title
deed
• Bank N committed gross negligence in parting with the title deeds
• N cannot allowed to plea that it has no notice that G would take the deeds
and deposit it in another bank to raise another loan
• Thus the mortgage of Bank N was postposed to mortgage of Bank L
 Registration as notice
• Explanation 1.—Where any transaction relating to immovable property is required
by law to be and has been effected by a registered instrument, any person acquiring
such property or any part of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration or, where the
property is not all situated in one sub-district, or where the registered instrument
has been registered under sub-section (2) of section 30 of the Indian Registration
Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such
registered instrument has been filed by any Sub-Registrar within whose sub-district
any part of the property which is being acquired, or of the property wherein a share
or interest is being acquired, is situated
• Registration of a document is notice of all the facts stated in the document
• Where a document has been registered it is presumed that all the persons
concerned have constructive notice of the material facts affecting the
property
 Requirements
• In order that registration may be treated as constructive notice of its
contents following conditions are necessary
1. Registration is notice only of those documents which are compulsorily
registrable
2. When all the formalities prescribed under the Registration Act are duly
completed
3. Registration is considered as notice only for subsequent transferees
 Mortgage
• A B

Sub mortgage

C
Registered mortgage of A and B is notice for C
But Registered mortgage between B and C is not a notice to A
 Punjab
• As TPA is not applicable in Punjab
• Registration does not operate as notice in all the cases
 Actual Possession as notice
• Explanation II of Section 3 provides for this situation
• Actual possession of an immoveable property is regarded as constructive notice of such title which the
person in the possession may have.
• A contracts to sell land to B for 5000 rs
• B takes the possession
• A than sells it to C for 6000 Rs
• C makes no inquiry of B relating to his interest
• B’s possession is sufficient to affect C with notice of his interest and B may enforce the contract
specifically
• C cannot say that he has no notice of B’s interest in the land
• A agrees to sell his property to B.
• On the basis of this agreement B puts his tenant in possession of that
property
• A afterwards Sells the property to C
• Here C cannot be said to have constructive notice of B’s Possession
because B had no actual possession, the possession was with B’s tenant
 Notice to agent is notice to Principal
• Notice or knowledge of a fact to agent amounts to constructive notice to
principal
• He cannot deny on the ground that only his agent had the notice
• (Explanation III)
• The reason for this rule is that if it were not so, every principal would be
successful in avoiding unfavourable notices by appointing an agent
 Requirements
1. Notice must have been acquired by the person as an agent and not in
some other capacity
2. Notice to an agent is imputed notice to principal only with regard to the
particular business or transaction for which the agent has been appointed
3. Notice must have been acquired by the agent during the course of agency
4. Notice acquired be agent must be relevant or material to the transaction
5. Notice must not have been fraudulently concealed by the agent
 Registered
• “registered” means registered in any part of the territories to which this Act
extends under the laws for the time being in force regulating the registration
of documents;
• Two kind of documents are there, one for which registration is mandatory
and for others its directory only
• Sec 17 of Registration Act provides a list of documents for which registration
is mandatory.
• Sec 18 provides a list of those documents for which registration is optional
• Thank You