Transfer of Property Act, 1977 (1920 A. D.)
No: 42 Dated: Apr, 01 1978
THE TRANSFERS OF PROPERTY ACT, 1977 (1920 A. D.)
(Act No. XLII of Svt. 1977)
An Act to amend the law relating to the transfer of property by act of parties.
Preamble.— Whereas it is expedient to define and amend certain parts of law relating to the transfer of property by act of parties ;
It is hereby enacted as follow :—
CHAPTER I
Preliminary
1. Short title, extent and commencement.—(1) This Act may be called the Transfer of Property Act, 1977.
(2) It extends to the whole of Jammu and Kashmir State. It shall come into force on the 1st day of Baisakh, 1978.
2. Saving of certain enactments, incidents, rights, liabilities, etc.— Nothing herein contained shall be deemed to affect—
(a) the provisions of any enactment not hereby expressly repealed ;
(b) any terms or incidents of any contract or constitutions of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force ;
(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability ; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction ;
and nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu, Mohammadan, or Buddhist law, subject to the limitation contained in sections 13, 14, 15, 16 and 20, no disposition of property made by a Hindu shall be invalid by reason only that the person for whose benefit it may have been made was not in existence at the date of such disposition.
3. Interpretation clause.– In this Act, unless there is something repugnant in the subject or context,––
“immovable property’’ does not include standing timber, growing crops or grass ;
“instrument’’ means a non-testrumentary instrument attested, in relation to an instrument, means 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 ;]
“registered” means registered in the State under the law for the time being in force regulating the registration of documents ;
“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 ;
“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent ;
a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it
Explanation I.—Where any transaction relating to immovable property is required by law to be and has been effected by 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, where instrument has been registered under sub-section (2) of section 30 of the Registration Act, 1977 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 where in a share or interest is being acquired, is situated.
Explanation II.–Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.–A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material :
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud