Report No. 70
16.7. Transfer at the time of marriage.-
It has been held1 that section 9 is not applicable to the transfer of immovable property made at the time of marriage by a Hindu. This decision can be explained only on the special facts of the case relating to a family arrangement. In this connection it is to be remembered that the expression "transfer of property" is to be construed with reference to section 5 of which an essential ingredient is the act of "conveying the property". We have already explained, while discussing section 5, that where there is no "conveyance" of property, there is no transfer, and the transaction is outside the Transfer of Property Act. There was, strictly speaking, no need for a provision of the nature contained in section 9, which seems to have been inserted out of abundant caution.
1. AIR 1968 AP 291.
To the rule that where a writing is required by the law there must be a writing, there seems to be no exception-not even the doctrine of part performance,1 because that doctrine does not apply unless the contract to transfer for consideration any immovable property is in writing, signed by the transferor. An oral agreement will not be sufficient for the purposes of the application of the doctrine of part performance-which seems to be a departure from the English law.
1. Section 53A.
16.9. Position in England as to Part-performance.-
In England, the doctrine of part-performance which was evolved to mitigate the hardship caused by the Statute of Frauds is not confined to written agreements. Under this doctrine, a party who has partly performed the contract can enforce it even though there is no written evidence of the contract. It is certainly a requisite that there must be parol evidence of the contract which is let in by the act of part-performance.1 But the absence of writing is immaterial.
1. Fry Specific Performance, 6th Edn., pp. 276-277, cited by Treitel, Contracts, (1966), pp. 119, 121.
16.10. Material alteration.-
We have, in the Report1 on the Stamp Act, discussed the question how far a material alteration in an instrument after its execution affects its validity. The general principles applicable to the question, apart from the position for the purposes of the stamp law, have also been discussed, and we do not consider it necessary to go over the ground again.
1. Report on the Stamp Act.
16.11. Other formalities.-
Besides writing, there might be other formalities, such as attestation and registration and (under special laws) the affixation of a seal. Confining ourselves to writing, we might state that so far as the general rule is concerned, it is not necessary that the transfer should be contained in a single document. The transfer might be made out of several documents, so long as they can be connected together with out parol evidence. There are certain requirements of Stamp Law1 particularly applicable to such a case, but the provisions of that very law indicates that our legal system does not rule out the effectuation of a transfer by more than one document.2
1. Section 4, Indian Stamp Act, 1899.
2. Compare Pearce v. Gardener, (1897) 1 QB 688.
16.12. No Change.- The above discussion discloses no need for amending the section.