Report No. 70
16.1. Oral Transfer.-
According to section 9, a transfer of property may be made without writing in every case in which a writing is not expressly required by law.
There are several cases in which the Transfer of Property Act requires a written instrument, namely-1
(1) Sale or exchange of immovable property of the value of one hundred rupees and upwards;
(2) Sale of a reversion or other intangible interest in immovable property irrespective of value;
(3) Simple mortgage;
(4) Other mortgages where the principal money is one hundred rupees and upwards-but not including a mortgage by the transfer of title deeds;
(5) Leases from year to year or for any term exceeding one year or reserving a yearly rent;
(6) Gifts-but in certain cases delivery is sufficient;
(7) Assignment of actionable claims. Besides this, there may be other laws requiring writing.2
1. Sections 54, 59, 107, 118, 122, 130,.131.
2. e.g. section 5, Trusts Act.
The reasons for requiring a writing in these cases are various, but in the case of most of the transactions, the law not only reflects a policy of ensuring accurate and permanent record to prevent disputes, but also shows its anxiety that such transactions should not be entered into without some deliberation. In the case of assignments of actionable claims, there is the additional reason that an actionable claim being incorporeal property, it cannot, by ifs very nature, be transferred by delivery of possession because the transferor has no present possession to deliver.
Therefore, it can be transferred only by words. A writing is required in preference to an oral grant, since the interest of third parties may be involved and also because the properties not being visible, it is considered that some particularity describing the nature of the property sought to be transferred may be useful.
Thus, the objects of requiring a written instrument are manifold. A written instrument affords an indelible record of the transfer-this is the aspect of evidence-but there is a more vital aspect to it, namely, that it secures title by defining the nature of the interest conveyed. In this sense, it is not only an immutable memorial of the transaction, but also a more reliable source of the essence as well as the details of the transaction.
The object of the law in requiring writing is one of substance, even though occasionally it may appear that such requirement assumes an over-technical importance in practice. Domat,1 an eminent French jurist, has described the object of writing in words which cannot be bettered, as follows:
"The force of written proofs consists in this, that men have agreed together to preserve by writing the recollections of things past and of which they were desirous to establish the remembrance, either as rules for their guidance, or to have therein a lasting proof of the truth of what they write. The agreements are written to preserve the remembrance of what the contracting parties have prescribed for themselves, and erect that which has been agreed on into a fix and immutable law for them.
So wills are written to establish the recollection of what a person who had the right to dispose of his property has ordained, and make thereof a rule for his heirs and legatees. In like manner are written sentences, decrees, edicts, ordinances and everything intended to have the effect of title or of law, etc. The. writing preserves unchangeably what is entrusted to it, and expresses the intention of the parties by their own testimony."
1. Domat Civil Law, para. 1.3, Title 6-Section 2, cited by Gour.
16.4. Of Course, the fact that a document has been employed to effectuate a transfer does not avoid controversy, but, in contrast with an oral transfer, the controversy, if any, will now be as to the construction of the document, and not as to the contents of the transfer.
16.5. Previous position.-
It would appear that before the passing of the Act,1 no writing was necessary for the sale of immovable property. 'This shows how the Act has altered the previous position.
1. AIR 1914 PC 27.
16.6. Hindu law.-
The marginal note appended to the Bill1 shows that this section was adopted from the New York Code. By the Hindu law, a verbal grant of immovable property is good, if followed by delivery of possession to the grantee.2 Indeed, in no case does the Hindu law appear absolutely to require writing3 though, as evidence, it regards writing as of additional force and value.4
1. N.Y. 'Code, section 453, 7 Exch 581; Gour.
2. Doed Seeb Kristo v. East India Co., 6 MIA 267; Hurrish Chunder v. Rajender, 18 WR 293.
3. Mantena v. Chekuri, 1 MHCR 100; Palanivappa v. Arumugam, 2 MHCR 26; Criniva v. Vijayammal, 2 MHCR 37; Krishna v. Rayappa, 4 MHCR 98; Hurpurshad v. Sheo Dyal, 26 WR 55 (PC).