Report No. 70
Preliminary Matters: Scope and Application
4.1. The short title of the Act, as given in section 1, is the Transfer of Property Act. It will be seen from the various sections that the Act does not deal with all property, or, indeed, with any but the topics comprised therein. Nor does it deal with all kinds of transfer, limited as it is only to transfers inter vivos, nor in dealing with such transfers does it more than "amend certain parts of the law". In short, the Act merely professes to crystallize some leading principles of the law of Transfer. These are to be supplemented by other laws and by final recourse to the principle of "justice, equity and good conscience1".
4.2. The Act, for example, is not exhaustive even on the law of mortgages1. Thus, an award can create a mortgage. In a case not covered by the Act, the Court is entitled to apply rules of equity, justice and good conscience which are not inconsistent with the Act. Thus, the holder of a statutory charge is entitled to a decree for sale, even though the charge arises by an act of the legislature and not by "transfer" as defined in section 5. This was the position even when section 100 did not cover statutory charges.
1. Hotchand v. Krishanchand, AIR 1924 Sind 23 (24).
4.3. The preamble to the Act makes it clear that the law codified is by no means exhaustive, and that the Act does not purport to consolidate, but only defines and amends certain parts of the law1 relating to transfers by act of parties. The expression "by act of parties" is used to distinguish transfer by operation of law, e.g., in case of insolvency, forfeiture or sale in execution of a decree2. Even as to transfers by act of parties, it does not profess to be exhaustive3.
For instance, it does not deal with pledges of tangible movable property and transfer of Government promissory notes4. In such cases, the matter is governed partly by statutory law and partly by the rules of justice, equity and good conscience. The Courts will have to act upon the principle of justice, equity and good conscience, in enforcing the contracts in accordance with their tenor5 where there is no statutory provision.
1. Jotindra v. Rangpoor Tobacco Co., AIR 1974 Cal 990.
2. Golak Nath v. Mathura Nath, ILR 20 Cal 273 (278); Krishnan v. Perachan, ILR 15 Mad 383.
3. Kalyan Das v. Jan Bibi, AIR 1929 All 12.
4. Subbaraya v. Kuppuswamy, (1909) 1 IC 535 (538); Kishori Lal v. Krishna Kamini, (1910) 5 IC 500 (502); Bunsee Dass v. Gena Lal, 14 CLJ 530 (536).
5. Subbaraya v. Kuppuswamy, (1909) 1 IC 535 (538).
Section 1 provides that the Act extends to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi. Thus, the initial extent of the Act was very limited.
But the same section enacts that this Act or any part thereof may, by notification in the Official Gazette, be extended to the whole or any part of the said territories by the State Government concerned. Notifications have been issued from time to time in exercise of this power by several State Governments. We need not go into details of such notifications, it being, unnecessary for the present purpose.
Section 1 further provides that any State Government may, from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:
Sections 54, paragraphs 2 and 3, 59, 107 and 123.
The sections listed relate to the formalities requisite for effecting a sale mortgage, lease and gifts respectively.
4.6. Territories excluded from Registration Act.-
Finally, the last paragraph of section 1 provides that notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3 and sections 59, 107 and 123 shall not extend or be extended to district or tract of country for the time being excluded from the operation of the Indian Registration Act, under the power conferred by the first section of that Act or otherwise.
4.7. Other sections relating to exemption.-
There are other sections in the Act which have the effect of exempting or extending the operation of certain provisions. For example, section 69 empowers the State Government to specify the classes of persons whose participation in an English mortgage excludes the operation of certain provisions mentioned therein. Section 57(e) further empowers the State Government to extend the jurisdiction of courts for the purposes of that section.
Section 104 empowers the High Court to make rules to carry out the provisions of this Act relating to mortgages or charges on immovable property. That the legislature can empower State Governments to remove a district from the jurisdiction of the High Court or extend the operation of the law to any district is now authoritatively ruled by the Privy Council1. Section 2(d) also enacts that "nothing in the second chapter of this Act shall be deemed to affect any rule of Mohammedan Law".
In relation to gifts governed by Mohammedan law, a similar provision is contained in the Chapter on gifts-section 129.
1. Emperor v. Burah, LLR 4 Cal 180 (PC).
4.8. Power to extend.-
Regarding the power of the State Government to extend the provisions of certain sections to any area within their jurisdiction, it has been held that this power does not entail the abrogation of the general scheme of the Act, to which they might be subject. For instance under the general provisions of section 129 all rules of Mohammedan Law relating to gifts remain unaffected by any of the provisions of Chapter 7-which includes section 123.
Consequently, when the Government of Burma extended the provisions of that section to the district of Pegu it could not, by such extension, rescind the general exception in favour of Mohammedan gifts which would still be complete if accompanied by mere delivery without being compulsorily registrable under that section1.
1. Mami v. Kallander, ILR 5 Rang 5 (PC).
4.9. We shall deal later with the position regarding Government Grants and Rent Acts1.
1. Chapter 4, infra.