Chapter 4 of the Indian Contract Act, 1872, from sections 37 to 67, deals with the performance of contracts.

Once a contract is made, it becomes obligatory for the parties to perform the contract or fulfil the conditions of the contract. The obligation or liability of the parties can be terminated (discharged) under certain circumstances.

The concept of discharge of contract under the Indian Contract Act provides for certain modes of discharge, which means the termination of liability of the parties under the contract.

According to the Indian Contract Act, the liability of the parties comes to an end when the object of the contract is fulfilled.

The modes of discharge provided under the Indian Contract Act are:

• Discharge by performance
• Discharge by breach
• Discharge by novation
• Discharge by the impossibility of the act
• Discharge by operation of law

Discharge by Breach

The failure to perform the contract or to breach any condition of the contract is known as discharge by breach of contract. The discharge by breach of contract is of two kinds:

• Anticipatory breach
• Actual breach

This law note covers anticipatory breach of contract.

Meaning of Anticipatory Breach

Anticipatory Breach of Contract means a breach done before the date of performance of the contract. When prior to the due date of the performance of the contract, there is absolute repudiation (to say that you refuse to accept something) of the contract.

Example: Sanjay has to supply 10kg of rice to Prakash on 1st July. But Sanjay informed Prakash on 15th June that he will not perform the contract on 1st July. Here, he has made an anticipatory breach of contract.

Anticipatory Breach of Contract Under the Indian Contract Act

Section 39 of the Indian Contract Act deals with Anticipatory Breach of Contract. According to this section, when a party to a contract refused to perform or has disabled himself from performing (fulfilling) his promise in its whole, the promisee may put an end to the contract unless he has signified, by words, or conduct his acceptance in its continuance.

Anticipatory breach of contract is made by the promisor and may be done in two ways:

1. By the refusal of performance
2. By disabling himself from performance

Effect of Anticipatory Breach of Contract

When there is an anticipatory breach of contract by one party, the other party has the following two options:

1. He may cancel the contract immediately.
2. He may appoint another day of performance, which means that the other party may not put an end to the contract, but he may signify by his words or conduct to wait for the performance of the contract on another day.

Case Laws Related to Anticipatory Breach of Contract:

Hochster vs De La Tour (1853): In this case, Lord Campbell held that as soon as the anticipatory breach occurs, the other party has an immediate right of action. It may either sue immediately or wait till the time the act was to be done.

Frost vs Knight (1872): In this case, it was held that even when the performance of a contract is conditional upon the happening of a contingency, an immediate action for damages will lie if, before the happening of the contingency, the promiser disables himself from the performance of the contract.

Avery vs Bowden (1855): In this case, it was held that while the contract is lying open, some event happens by which discharges a contract other than by repudiation, for example, by supervening impossibility or by frustration, the promiser would also be entitled to take advantage of the changed circumstances.

Note: The citations for the above three case laws are taken from the book Contract and Specific Relief by Avtar Singh.

Conclusion

The anticipatory breach is an announcement by the contracting party of his intention not to put in the contract and that he will no longer be bound by it, nor is the other party bound by the terms of the contract. Instead, the innocent party is excused from further performance of the contract.

What Is Anticipatory Breach of Contract Under Contract Act?
Ankita Soni

The word written statement is not exactly defined under the Code of Civil Procedure, 1908. However, written statement can be defined as the pleadings of defendants where the defendant deals with the fact alleged in the plaint (pleadings of plaintiff). In a written statement, the defendant also pleads with new facts and, sets up the counter claim and set off.

Who May File Written Statement

According to Order 8 Rule 1 of the CPC, the written statement must be filed by the defendant or his duly authorised agent. If there are several defendants, all of them can file a common written statement. In such a case, all of them must sign and verify it.

Further, according to Order 8 Rule 1A, it is the duty of the defendant to produce documents upon which he claims relief or relies upon.

Time Limit for Filing Written Statement

According to Order 8 Rule 1 of CPC, the defendant must file the written statement within 30 days from the date of service of summons to the defendant.

The Amendment Act of 2002 inserted a proviso to Order 8 Rule 1 stating that if the defendant fails to file a written statement within 30 days from the date of service of summons, he can be allowed to file it within 90 days from the date of service of summons.

Thus, the maximum limit for filing the written statement is 90 days from the date of service of summons.

Kailash vs Nankhu, AIR 2005 SC 2441: In this case, the court held that the outer time limit, i.e., 90 days for filing a written statement, is not mandatory but a discretionary power of the court.

Whether a Period Beyond 90 Days Can Be Extended

In a landmark case of Salem Bar Association vs Union of India (2005) 6 SCC 344, the Supreme Court held that the court could extend the timing for filing written statements beyond 90 days. Still, it should be exercised in exceptional circumstances only. The court further said it should make harmonious construction between Order 8 Rule 1, Order 8 Rule 9, and Order 8 Rule 10.

Rules Regarding Written Statement

The rules governing the written statement submitted by the defendant are provided under Order 8 Rules 3 to 5.

Order 8 Rule 3: Denial to be specific. It provides that the denial by the defendants must be specific. It is not sufficient for the defendant to generally deny the ground alleged by the plaintiff, but he must deal with each allegation of fact that he does not admit except damages.

Order 8 Rule 4: No evasive denial. It provides that the denials submitted by the defendant should not be vague or evasive. This means that the defendants should not deny the allegations evasively but answer the point in substance.

Order 8 Rule 5: Specific denial. It provides that every allegation in the plaint, if not specifically denied, shall be taken to be admitted except as against a person under disability. It is also called the theory of deemed admission, which means that if an allegation is not specifically denied, it is deemed to be admitted by the party.

When the defendant has not filed the written statement, the court is free to pronounce judgment based on facts contained in the plaint except as against a person under disability.

Badat & Co. vs East India Trading Co. (1963): In this case, the Supreme Court held that if all Rules 3, 4, and 5 of Order 8 are read together, then every allegation in the complaint should be answered. A written statement should answer the point in substance. If the denial is evasive, the fact shall be taken to be admitted.

Conclusion

Order 8 of the Code of Civil Procedure, 1908, states every essential that a defendant must fulfil to defend himself easily. The statements answered in the form of written statements are the pleadings made by the defendant.

In Balraj Taneja vs Sunil Madan (1999) 8 SCC 396, the Supreme Court held:

1. The courts should act cautiously on the admission made in a written statement.
2. The courts should not proceed to pass judgment merely because a written statement has not been filed.
3. The courts should see that even if the facts set out in the plaint are admitted, a judgment could be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint.
4. If the court is satisfied that no fact needs to be proved on account of deemed admission, the court can pass judgment where the written statement has not been filed.
5. If the plaint contains certain disputed questions of facts that depict two different versions, the court should require the plaintiff to prove the case. Such a situation would be covered under ‘court may in its discretion require any such fact to be proved’ used in Order 8 Rule 5(2) or ‘make such order in relation to suit as it thinks fit’ used in Order 8 Rule 10.

Who May File Written Statement (With Its Time Limit and Rules)
Ankita Soni

Res Nullius, is a legal maxim that means things belonging to no one. It is said that a property can never be left in the state of Res Nullius, which means that the property must belong to somebody at some point in time but never be left without an owner.

Still, there are a few situations when the property can be put in a Res Nullius state. One such situation is when a person dies while leaving a property, and if there arises any suit concerning such property, the question arises: who will represent that property?

Therefore, a legal representative is a person who, by law, represents the property of a deceased person.

Let us now understand more about legal representatives.

Legal Representative Under CPC

Section 2(11) of the Code of Civil Procedure, 1908 defines legal representative. It simply states that a legal representative is a person who, in law, represents the estate of the deceased person.

Further, as per section 2(11) of CPC, legal representative also includes any person who interferes (intermeddle) with the estate of the deceased, and when someone represents a party in litigation or is sued on their behalf, the person whose estate is left after the party’s death.

Must Read: What Is Estate Planning and Its Importance?

Examples of Legal Representatives

Some examples of legal representatives are:

• Hindu coparceners
• Executors
• Administrators
• Residuary legates
• Reversioners

Examples who are not Legal Representatives

Here are some examples of persons who are not legal representatives:

• Trespassers
• Official assignee
• Creditors
• Succeeding trustee
• Receiver

Extent of Liability of Legal Representative

Section 50 of the Civil Procedure Code provides the extent of liability of legal representatives. According to section 50(2), the legal representative shall be liable only to the extent of the property of the deceased that has come to his hands.

Enforcement of Decree Against Legal Representative

Section 52 of the Civil Procedure Code provides for the enforcement of a decree against the legal representative of a deceased person. It provides that if a decree is made against a party acting as the deceased person’s legal representative and if such decree is for the payment of money out of the deceased person’s property, it can be carried out by attaching and selling the property.

Case Law Relating to Legal Representative

Custodian of Branches of Banco National Ultramarino vs Nalini Bai Naique, AIR 1989 SC 1589: The Supreme Court, in this case, held the definition of legal representative. The court held that the definition of legal representative is inclusive and is not confined to legal heirs only. The scope of the definition is broad and it includes heirs (successors) as well as persons who represent the estate of the deceased.

Who Is a Legal Representative?
Ankita Soni

According to the Indian Contract Act, of 1872, a contract means an agreement enforceable by law. The enforceability of an agreement depends upon various conditions provided under section 10 of the Indian Contract Act. The intention to create a contract is one of the most essential factors in ascertaining the enforceability of an agreement.

In this law note, we will discuss the intention to create a contract with the help of landmark judgements.

Related Law Note: 5 Kinds of Contracts Defined With Easy Examples and Differences

What Is the Intention to Create a Contract?

Under the Indian Contract Act, the term intention means to create a legal relationship when forming an agreement and its enforceability.

The Indian Contract Act does not contain any provision mandating the requirement of intention for creating contractual obligations. However, it is derived from various landmark judgements by English and Indian courts.

Case Laws Related to the Intention to Create a Contract

The following landmark judgements discuss the relevancy of ‘intention’ in the formation of a contract.

Banwari Lal vs Sukhdarshan Dayal (1972)

The Supreme Court limited its recognition of the requirement of intention as one of the essential elements of a contract.

Dalrymple vs Dalrymple (1811)

The court observed that contracts must not be taken as a matter of pleasantry. Every loose conversation does not convert into a contract.

Balfour vs Balfour (1919)

In this case, a husband and wife were on holiday in England. The husband had to return to work in Ceylon, and the wife had to stay back because of health issues. Husband promised to pay her monthly expenses. He did pay for a few months, but later on, differences arose, which resulted in their separation. The wife bought an action to recover the agreed sum as monthly expenses. Lord Atkin dismissed the action and observed that these arrangements do not result in the contract even though they constitute consideration because the party did not intend that they shall be attended by legal consequences.

Rose and Frank Co. vs JR Crompton and Bros. Ltd (1923)

The court held that the intention of the parties is to be ascertained from the terms of the agreements and surrounding circumstances. As a matter of course, it follows that the arrangements relating to family and social matters do not intend legal consequences; hence, there is no intention to create a contract. In contrast, in the case of business relations, parties intend legal consequences as a matter of course.

However, this does not mean a legally binding contract cannot exist in all family and social matters. If parties intend legal consequences in family and social matters, it will also be a binding contract.

McGregor vs McGregor (1888)

In this case, a husband and wife withdrew their complaint under an agreement in which the husband agreed to pay her allowance, and the wife refrained from pleading the credit. This agreement was held to be a binding contract.

Jones vs Padavatton (1969)

The mother persuaded the daughter to pursue studies and undertook to bear all the related expenses. The daughter could not complete her education in five years. The mother stopped paying expenses and commenced proceedings to evict the daughter. The court held that the parties intended to contract, although the matter was one of family. The engagement did result in the contract, but the agreement could last only for a reasonable period.

Test: The intention of the parties is to be ascertained from the terms of the agreement and surrounding circumstances. The test of determination of such intention is objective and not subjective. It is not what parties had in mind, but what a reasonable man would think in the circumstances is to be inferred.

Conclusion

It can be concluded that along with the conditions of enforceability of agreement laid down under section 10 of the Contract Act, which are free consent of parties, competency of parties, lawful consideration, lawful object and not expressly declared to be void, the intention to create a contract, i.e., the intention to create a legal relationship, is also an essential requirement for the formation of a valid contract.

The intention of parties is to be ascertained from the terms of the agreement and surrounding circumstances. It is not what the parties held in their mind, but what a reasonable man would think in the circumstances is to be inferred.

Intention to Create Contract Under Indian Contract Act
Ankita Soni

In general terms, movable property means the property which can move from one place to another. The Transfer of Property Act, 1882 has not defined movable property.

Section 3 of the Transfer of Property Act provides a negative definition of immovable property and excludes standing timber, growing crops and grass from immovable properties. Then, logically, standing timber, growing crops, and grass are movable properties.

This law note tells you about the definition of movable property under various Indian laws, such as Bharatiya Nyaya Sanhita, IPC, CPC, Registration Act, and more.

Definition of Movable Property in Other Laws

The description of movable property can be studied in various other laws, such as:

1. General Clauses Act, 1897
2. Indian Registration Act, 1908
3. Indian Penal Code, 1860 and Bharatiya Nyaya Sanhita, 2023
4. Code of Civil Procedure, 1908

General Clauses Act, 1897

Section 3(36) of the General Clauses Act, 1897 defines movable property as ‘property of every description except immovable property.’

Indian Registration Act, 1908

Section 2(g) of the Registration Act, 1908 defines movable property as ‘movable property includes standing timber, growing crops and grass.’

Indian Penal Code, 1860

Section 22 of IPC defines movable property as including corporeal property of every description, except the following:

• Land
• Things attached to the earth
• Permanently fastened to anything which is attached to the earth.

Bharatiya Nyaya Sanhita, 2023

Section 2 of Bharatiya Nyaya Sanhita (BNS) is about definitions and its point number 21 talks about movable property, which ‘includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.’

Code of Civil Procedure, 1908

Section 2(13) of CPC defines movable property as ‘movable property includes growing crops.’

Some Examples of Movable Property

1. Government promissory notes
2. Right of worship
3. Royalty or copyright
4. Decree for the arrears of rent
5. Decree for sale of immovable property on a mortgage (Jiwan Ali Beg vs Basa Mal and Ors (1886))
6. Right to get maintenance allowance (Altaf Begum vs Brij Narain)
7. Electricity (State of AP vs NTPC Ltd.)
8. Right to enjoy the benefit of fruit trees

What Is the Definition of Movable Property in India?
Ankita Soni

The word plaint is not exactly defined under the Code of Civil Procedure, 1908. But it can be defined as claims made by the plaintiff through an official legal document that is presented in the court.

In other words, plaint can be defined as a statement of claim by presentation of which the suit is instituted.

Particulars of Plaint

The particulars of the plaint as provided under Order 7 Rule 1 of the CPC are:

1. Name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant.
4. If the plaintiff or defendant is a minor or a person of unsound mind, a description of such minority or unsoundness.
5. The facts constituting the cause of action and when it arose.
6. Facts showing that the court has jurisdiction.
7. Statement of the value of the subject matter of the suit for jurisdiction and court fees.
8. The relief claimed by the plaintiff, simply or in alternative.
9. If the plaintiff has relinquished or set off a portion of his claim, the amount so relinquished or allowed must be stated.
10. If the suit is for the recovery of money, the precise amount is claimed.
11. If the subject matter is an immovable property, a description of the property is sufficient to identify it.

Procedure for Admitting Plaint

According to Order 7 Rule 9 of the CPC, as soon as the plaint is admitted by the court, it is the duty of the plaintiff to supply copies of the plaint to all the defendants, if there is more than one defendant, it should be done within seven days from the date of the court order.

Return of Plaint and Its Effect

Return of plaint simply means the returning of plaint from the court to the plaintiff. Order 7 Rule 10 of the CPC is invoked when the court finds that there is no jurisdiction or subject matter to entertain the suit. At any stage of the suit, the court can return the plaint to be presented to the other court, which means to the proper court to which the jurisdiction actually lies.

The power to return of plaint can be exercised by revisional as well as appellate courts after setting aside the decree.

Before returning the plaint, the court must intimate its decision to the plaintiff. The plaintiff can, thereafter, file an application before the court to specify the proper court to present the plaint and to fix a date of appearance of the parties in such court. If such an application of the plaintiff is allowed, he cannot file an appeal against the order returning the plaint.

The court may accept the plaintiff’s application and fix a date for appearance before a proper court and issue notice to the plaintiff and defendant of such date for appearance.

The judge returning the plaint should make an endorsement regarding:

1. The date of return,
2. Name of the party presenting it,
3. Reasons for returning the plaint.

In ONGC vs Modern Construction Company (2014) 1 SCC 648, the Supreme Court held that where a plaint is filed in a proper court after getting returned from a wrong court, it cannot be said to be in continuation of the suit. The suit must be deemed to commence when the paint is filed in the proper court.

Rejection of Plaint and Its Effect

Order 7 Rule 11 of the CPC deals with the rejection of plaint. It simply means to reject the plaint on the grounds provided under the Code of Civil Procedure.

According to Order 7 Rule 11, at any stage of the suit, if the court finds any of the following grounds, the court must reject the plaint:

• Non-disclosure of cause of action
• Relief claimed is undervalued
• Plaint is insufficiently stamped
• Plaint is barred by any law
• Plaint is not filed in duplicate
• Non-compliance of Order 11 Rule 9

It is mandatory for the court to record the reasons for rejecting the plaint.

Note: “At any stage of the suit” means before registering the plaint, after issuing summons, or at any time before the conclusion of the trial.

In Madhav Prasad Agrawal vs Axis Bank (2019), 7 SCC 158, the court held that the plaint can either be rejected as whole or in part.

The rejection of the plaint is considered a deemed decree under section 2(2) of the CPC. However, the rejection of the plaint does not prevent the plaintiff from presenting a fresh plaint.

Conclusion

A plaint is simply a statement of claim made by the plaintiff in a court of law. It is essential that the plaint be submitted in a proper format with proper particulars, as discussed under Order 7 Rule 1. Further, it is also important that it is presented in a court having competent jurisdiction; otherwise, it might be returned or rejected.

What Is Plaint Under the Civil Procedure Code, 1908?
Ankita Soni

In this law note, we will discuss the important concept of the ‘Doctrine of Res Sub Judice’ or ‘Stay of Suits’ under the Civil Procedure Code of 1908.

Stay of Suit or Res Sub Judice Under CPC, 1908

The word res means subject matter, and sub judice means pending in court. Therefore, res subjudice means the subject matter is pending before the court.

Section 10 of the Code of Civil Procedure (CPC) deals with the ‘Doctrine of Res Sub Judice.’ It provides that no court can proceed with the trial of any suit in which the matter is directly and substantially in issue in a previously instituted suit between the same parties or their representatives, and the court in the previously instituted suit is capable of granting the relief claimed.

Object of Res Sub Judice

The object of section 10 of CPC is to prevent a court of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two or more parallel litigation upon the same cause of action, same subject matter and same relief made. It is intended to prevent multiplicity of proceedings and avoid conflict of decisions.

Essentials of Res Sub Judice

These are the essential aspects of Res Sub Judice:

1. There must be two suits, one previously instituted and the other subsequently instituted.
2. That the matter in both suits must be same and directly and substantially in issue.
3. Both the suits must be between the same parties or their representative.
4. The parties must be litigating under the same title in both suits.
5. The court in which the previous suit is pending must have jurisdiction to grant the relief.
6. The previous suit must be pending in any of the following courts:

• • (a) Same court,
  • (b) Other District or High Court in India,
  • (c) Any other court beyond the limit of India but established by Central Government,
  • (d) Supreme Court.

Once the court observes that all the above conditions have been fulfilled, the court must not proceed further with the trial and must put a stay on it. Note: A previously instituted suit is a suit instituted first at a point in time.

Effect of Contravening Section 10 of CPC

The provision of section 10 is mandatory for the court to follow. Even in the rarest cases, if the rule of Subjudice is not followed, and a judgment is made by the court, the decree shall not be treated as void. It cannot be disregarded at the stage of its execution.

Exceptions to Res Sub Judice

Res Sub Judice has three exceptions, those are:

1. Suit pending in Foreign Court
2. Interim Orders
3. Summary Suits

Let us discuss them one by one.

1. Suit pending in Foreign Court: Section 10 provides an exception to the general rule of stay of the suit, which states that the pendency of a suit in a foreign court does not prevent courts in India from trying the suit on the same cause of action.

2. Interim Orders: In the case of Indian Bank vs Maharashtra State Corporation Federation (1998) 5 SCC 69, section 10 does not bar the institution of the suit, but it bars the trial of the suit. Since this rule applies to the trial of the suit and not the institution, it does not preclude the courts from passing interim orders such as grand injunctions, appointment of receivers, etc.

3. Summary Suit: The Supreme Court held that section 10 applies to regular suits and not summary suits under Order 37 of the CPC in Indian Bank vs Maharashtra State Corporation Federation (1998) 5 SCC 69.

Case Laws Relating to Res Sub Judice

Indian Bank vs Maharashtra State Corporation Federation (1998) 5 SCC 69: Since the rule under section 10 of the Civil Procedure Code applies to the trial of the suit and not the institution, it does not preclude the courts from passing interim orders such as grants of injunction, appointments of receivers, etc.

Pukhraj D Jain vs G Gopalakrishna, AIR 2004 SC 3504: In this case, the court held that the object of section 10 is to prevent the jurisdiction from simultaneously trying two parallel suits regarding the same matter in issue. The decree passed contravening this section is not null as it enacts a mere rule of procedure.

Conclusion

The concept of Res Sub Judice plays a vital role in preventing the multiplicity of suits and avoiding conflict of decisions. It allows the court to use its power to bar the trial of the suit already pending in the court.

Related Law Notes:
1. What Is the Meaning of Res Judicata in Civil Procedure Code?
2. Difference and Similarity Between Res Sub Judice and Res Judicata in CPC

What Is Stay of Suit or Res Sub Judice Under CPC?
Ankita Soni

A lease means a transfer of a right to enjoy in an immovable property for a certain period or in perpetuity for a consideration. The person transferring the property is the lessor, and the person to whom such a right is transferred is the lessee.

Therefore, when the state government or the collector makes a lease to any person, the state government is known as the lessor, and the person to whom such lease is made is the government lessee.

Please allow me to tell you more about government lessees under the Madhya Pradesh Land Revenue Code of 1959.

What Is a Government Lessee Under the MP Land Revenue Code

The definition clause of the Code defines a Government lessee under section 2(1)(h) as a person holding land from the state government under section 181 of the MP Land Revenue Code, 1959. By simply reading the above definition does not bring clarity about government lessee. Let us now take a look at section 181.

Section 181 of the Madhya Pradesh Land Revenue Code, 1959 briefly discusses government lessees. According to section 181, a government lessee is a person who holds the land from the state government or to whom the right to occupy land is granted by the state government or from the collector.

A person who holds land from a state government or collector other than Bhumiswami is a government lessee.

Government lessees also include:

1. Every person who, at the coming into force of the MP Land Revenue Code, was holding any land as an ordinary tenant in the Madhya Bharat region; or
2. A person holding any land as a special tenant or as a Gair Hakdar tenant in the Vindhya Pradesh region; or
3. A person holding any land as a Gair Khatedar tenant in the Sironj region.

Rights and Liabilities of a Government Lessee

The rights and liabilities of a Government lessee are fixed with the terms and conditions of the grant under which he holds land.

Ejectment of Government Lessees

The government lessee can be ejected from his land by the order passed by the collector on any of the following grounds:

1. If the government lessee has failed to pay the rent for at least three months from the date on which it becomes due; or
2. If the government lessee has used such land for any purpose other than for which it was granted to him; or
3. If the term of the lease of the government lessee has expired; or
4. If the government lessee has contravened any of the terms and conditions of the grant.

It must be noted that a government lessee cannot be ejected until he has been given a reasonable opportunity of being heard in his defence.

Read Next: Provisions Related to Village Officers (Patels & Kotwars) Under MPLRC

What Is Government Lessee Under MP Land Revenue Code?
Ankita Soni

This law note deals with the conceptual and fundamental introduction to the Transfer of Property Act of 1882. We have also briefly covered the essential points that can be helpful for several judicial exams.

Before getting into the details of the Act, one must understand the title of the Act, i.e., the Transfer of Property Act. Let us break the title into two: transfer and property.

The word transfer refers to the moving of control from one person to another. It may be a physical transfer (by giving possession of the property) or a mental transfer (by giving ownership of the property).

The second word is property. Property can be defined as a bundle of rights over a thing. It may be in possession or ownership. The term property is not defined in the Transfer of Property Act. Property can be of two kinds: movable property and immovable property.

Origin

Before the Transfer of Property Act, 1882 came into force, the Indian legal system had various personal laws for transferring property. There was no such uniform law that could provide a clear and concrete law for the transfer of property suitable for Indian circumstances.

Therefore, the First Law Commission prepared a draft dealing with matters of property transfer. It was amended several times, and finally, it was re-drafted by the Second Law Commission to remove its discrepancies and to prepare a uniform law that suits the Indian circumstances and which can be understood easily.

Object

The object of the Transfer of Property Act is to establish rules relating to the transfer by the act of parties (the term “act of parties” is explained below). The preamble of the Act lays down its object as to define and amend the law related to transfer by the act of parties.

Features

These are the four basic features of the Transfer of Property Act, 1882:

1. The Transfer of Property Act is a civil substantive law.

2. It governs the transfer by the act of parties. A property can be transferred in two ways: by the act of parties or by the operation of law.

However, the Transfer of Property Act only governs the transfer made by the act of parties, which means Intervivos (transfer between living persons). Examples of transfer by the act of parties are sale, lease, mortgage, exchange, gift, and actionable claim.

Extra Info: Transfer by operation of law means that the property is transferred automatically by the process of law. Examples of transfer by operation of law are attachment made by the court, transfer in case of insolvency, forfeiture, sale in execution of court’s decree, inheritance, will, etc. The Transfer of Property Act does not apply to transfer by operation of law. Transfer by operation of law is governed by different other Acts such as:

• Transfer between living persons in the case of movable property is governed by the Sale of Goods Act of 1930.
• Transferring from a dead person to a living person (whether movable or immovable property) is governed by the Indian Succession Act of 1925, by way of will or succession.

3. It is not an exhaustive law.

4. The chapters and sections of the TPA which relate to contracts shall be taken as part of the Indian Contract Act of 1872. TPA is also supplemental to the Indian Registration Act of 1909.

Structure

• It came into force on 1st July 1882.
• Its citation is Act No. 4 of 1882.
• Total number of chapters: 8
• Total sections: 137

General Introduction to the Transfer of Property Act, 1882
Ankita Soni

Whenever any person lawfully acquires any right or interest in the land, it is essential to update the land records. To update the land records, it is the duty of the person lawfully acquiring the right or interest in land to report his acquisition of such right within six months to Patwari (in non-urban areas) or Nagar Sarvekshak (in urban areas).

In this regard, section 109 of the Madhya Pradesh Land Revenue Code, 1959 (MPLRC) provides that it is required to report the acquisition of a right or interest in any land. Further, the procedure is provided under section 110 of MPLRC.

The term ‘mutation‘ refers to a change or to alter and officially change a land record for a purpose. In other words, mutation of acquisition of rights refers to officially upgrading the land records when any person acquires any right or interest in any land.

Procedure for Mutation of Acquisition of Rights in Land Records

Section 110 of the Madhya Pradesh Land Revenue Code, 1959 provides for the procedure for mutation of acquisition of rights in land records.

The procedure starts as follows:

1. Patwari (in case of non-urban areas) or Nagar Sarvekshak (in case of urban areas) under section 109 of MPLRC shall register for the purpose of every acquisition of rights reported or noticed to them.

2. Patwari or Nagar Sarvekshak then must intimate about the reports regarding acquisition within 30 days of such report or notice.

3. Duty of Tahsildar: Tahsildar/Tehsildar, on the receipt of information, must perform the following works within 15 days from the receipt of information:

• Register the case in his court.
• Issue a notice to all the persons interested, other persons and authorities.
• Display a notice on the notice board of his office and publish it in the village or sector.

4. The notice that was given to the persons interested by the Tahsildar can now lead to two situations: undisputed matter or disputed matter.

5. In case of an undisputed matter (which means no objection has been raised by the persons interested or other persons or any authority), the Tahsildar will give them a reasonable opportunity to be heard and will conduct the necessary inquiry as he thinks fit and must pass the order of mutation within 30 days (or maximum within two months in total).

6. In case of a disputed matter (which means objection has been raised by persons interested or other persons or any authority), the Tahsildar will give them a reasonable opportunity to be heard and will conduct the necessary enquiry and must pass the order of mutation within five months (or maximum within six months in total).

7. In both cases, the Tahsildar will update the village Khasra, sector Khasra, or land records.

8. Further, it is the duty of the Tahsildar to supply a certified copy of the order passed by him and shall also supply the updated copy of land records to the parties within 30 days from the date of the order of mutation.

9. If the Tahsildar fails to supply the certified copies, then the Tahsildar must record the reasons for not supplying the certified copies and report to the Sub-Divisional Officer.

10. In case the proceedings under section 110 of MPLRC are not disposed of even in the maximum specified period of time, that is, within two months in case of an undisputed matter and within six months in case of a disputed matter, the Tahsildar must report the pending cases to the Collector.

Note: No ex-parte decision can be made under section 110 of MPLRC.

Conclusion

The purpose of section 110 of MPLRC is to ensure and update all the documents related to land and its records.

For this purpose, Patwari (non-urban areas) and Nagar Sarvekshak (in urban areas) ensure that the report on the acquisition of rights must reach the Tahsildar. On such intimation, the Tahsildar ensures the registration of the land records.

Read Other MPLRC topics

Law of Mutation Under the Madhya Pradesh Land Revenue Code
Ankita Soni