Sale of immovable property is defined in Sec. 54 of the Transfer of Property Act, 1882 as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale of goods (movable property) is defined in Sec. 4 of the Sale of Goods Act, 1930 as a contract whereby property in goods is actually transferred by the seller to the buyer for a price.



Price is not defined in the transfer of property Act, but is defined in Sec. 2 (10) of the Sale of Goods Act to mean the money consideration for a sale of goods. In he case of CITV.M. & G. Stores, (AIR 1968 SC 200) the Supreme Court has held that in the absence of any definition in the transfer of property Act, the word 'price' used in Sec. 54 of that Act must be construed in the same sense in Which it is used in a See A read with Sec. 2(10) of the sale of Goods Act that is money consideration it has further been observed by the Supreme Court in the abovementioned case that the presence of money consideration is an essential in a transaction of sale and that if the consideration is an essential in a transaction of sale and that if the consideration is not money but some other valuable consideration the transaction may be an exchange not a sale.

Money consideration does not necessarily mean case consideration. A decretal amount, outstanding debts and other monetary liabilities can be price in a sale. If no price is paid or promised even a registered deed does not affect a sale. The law does not require that the consideration should be immediately ascertainable in money. It is sufficient if it is ascertainable at the time when payment is made. The actual payment of prince is not essential to the completion of a sale. The sale is complete as soon as the sale deed is registered even if the payment of price is promised on a future date provided it has been ascertained or made as certain able.


Immovable and Movable Property:

Immovable property is defined in Sec. 2 (26) of the General Clauses Act, 1897 thus: "Immovable property" shall include land, and things attached to the earth, or permanently fastened to anything attached to the earth. In Sec. 3 of the transfer of property Act it is stated that for purposes of this Act, "Immovable property" does not include standing timber, growing crops or grass. Thus, in the transfer of property Act, "Immovable property" has a slightly restricted meaning. Movable property is defined in Sec. 2 (30) of the General clause Act to mean property of every description except immovable property. The Sale of Goods Act, does not define movable property but defines "goods" to mean every kind a movable stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be served before sale or under the contract of sale.


Intangible Property:

The words 'tangible' means something that can be touched, i.e., a material object. All abstract right are incapable of being touched and are hence intangible. Some examples of intangible property are good will of business, chooses in action, mortgagee rights, lessee rights and the interest of a partner in a partnership.


What may be Transferred or Sold:

Generally, the right to property includes the right to transfer it to another person. Sec. 6 of the transfer of property Act provides that property of any kind may be transferred, except as provided buy this Act or by any other low for the time being in force. To this rule clauses (a) to (i) of Sec. 6 constitute exceptions. These clauses read: 98 The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other mere possibility of a like nature, cannot be transferred b. A mere right of reentry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby' c. An easement cannot be transferred apart from the dominant heritage. d. An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. (i) A right to further maintenance, in whatsoever manner arising, secured or determined, cannot be transferred. e. A mere right to sue cannot be transferred. f. A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has be become payable. g. Stipends allowed to military, naval, air force and civil pensioners of the government and political pensions cannot be transferred. h. No. transfer can be made. b) Insofar as it is opposed to the nature of the interest affected thereby, or c) For an unlawful objected or consideration within the meaning of section 23 of the Indian contract Act, 1872, or d) To a person legally disqualified to be transferee. i) Nothing in this shall be deemed to authorize a tenant having an un transferable right of occupancy, the farmer of and estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a court of wards, to assign his interest as such tenant, former or lessee.


Persons Competent to Transfer:

see. 7 at the Transfer of Property Act deals with the competency to be a transfer. The transfer must be:

(i)            Competent to contract, and

(ii)           Have title to the property, or authority to transfer if not his own.

Who is competent to contract is laid down in Sec. 110f the contract Act, Sec. 11, reads: Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.



Consequences of Transfer and Rights and Liabilities of Buyer and Seller:

Section 8 lays down the consequences which follow from the transfer of property. All interests which the transferor is capable of passing passes forthwith to the transferee, if the property is land, the easements annexed, the rents and profits accruing after the transfer and all things attached to the earth pass to the transferee and if the property is machinery attached to the earth, the movable parts thereof.

In the case of a house, the casements annexed to it. The rent the locks, keys, bars, doors, windows and all other things provided for permanent use there in pass to the transferee. It the property is a debt or other actionable claim, the securities therefore but not arrears of interest accrued before the transfer. And if the property is money or other property yielding income, the interest or income accruing after the transfer passes to the transferee.

But it is open to the parties to provide, expressly or by necessary implication that consequences other than those mentioned above will flow from the transfer. The rights and liabilities of the buyer and seller are set out in detail in section 55 of the transfer of property Act. These conditions are implied in every transfer and it is not necessary to mention them in the deed of transfer. But it is open to the parties, by agreement, to supplement these or to vary them or anyone or more of. When this is done specific mention must be made in the deed of the added condition or of the varied condition.


Unlawful Conditions which may not be Included in Deeds of Transfer:

Sec. 10 makes void a condition absolutely restraining the transferee from parting with or disposing of his interest in the property.

Sec. 11 provides that in cases of transfers of absolute: interest a condition restricting the enjoyment of the property will be ignored.

Sec. 12 enacts that a condition making the interest of the transferee determinable on insolvency or attempted transfer shall be void. This section doesn't apply to a condition in a lease for the benefit of the lesser.

By Sec. 13 an interest created for the benefit of an unborn person subject to an interest created by the same transfer, shall not take effect unless the interest created for the benefit of the unborn person extends to the whole of the remaining interest of the transferor in the property.

Sec. 14 lays down the rule against perpetuity. It makes inoperative a transfer which postpones the power of alienation to one or more lives in existence and the period of minority of a person who shall be in existence at the expiration of those lives. It is advisable for the draftsman to study these provisions before in cooperating conditions in a deed of transfer.


Sale how effected: Registration There are only two modes of transfer by sale and these are: -

(1) By registered instrument, and

(2) By delivery of possession.

(i) Tangible immovable property of the value of RS.1 00 and upwards,

(ii) A reversion, and

(iii) Other intangible thing can be made only by a registered instrument.

A sale of tangible immovable property a value less than Rs. 100/- can be made either by a registered instrument or by delivery of property. 100 Sec. 54 of the Transfer of Property Act has been amended in Utter Pradesh with the result that a sale of immovable property or whatever description and of whatever valuation can be made only by a registered instrument. A contract for the sale of immovable property can also be made only by a registered instrument.


Form and Content of a Sale Deed :

A sale deed is usually executed as a deed poll by the vendor and written in the first person. The law does not require execution by the purchaser also. Sometimes it is executed as a deed between the ' vendor and the purchaser, particularly when it contains covenants binding on the purchaser. A sale deed must contain, apart from the description of the deed and the date, details of the following elements:

(i)            The parties,

(ii)           The capacity and capability of the vendor to transfer the property,

(iii)          The vendor title to the property,

(iv)          The property and its capability of being transferred,

(v)           The encumbrances and charges, if any, upon the property and whether the sale is subject to the encumbrance and charges, and whether any money was being left with the purchaser to payoff the encumbrance and charges.

(vi)          The price settled, how and when paid or to be paid, (earnest money if paid to be set-off).

(vii)        The other terms agreed upon (the implied terms and conditions set out in section 55 of the Transfer of Property Act. need not be mentioned unless there is a variation in any of them).

(viii)       Delivery of possession, actual or constructive. Though not so required by any law, a sale deed is usually attested by two witnesses. Sale and agreement to sell movable goods may be made either in writing, or by word of mouth or partly in writing and partly by word of mouth, or may be implied by the conduct of the parties. Writing is not necessary in any case whatever may be the nature or value of the property. An agreement to sell is generally drawn up in writing when the property is or large value or it is not in existence at the time of the agreement.

Stamp Duty:

Stamp duty in a sale deed is chargeable under Art. 23 schedule I of the Stamp Act. Transfers covered by Art 62 and assignment of copy right under the copy right Act, 1957 are not covered by this article. The duty chargeable is advalorem.

Effect of Non-registration :

If a sale deed which is required to be registered, there is no transfer and property does not pass. This is so even if the sale deed is executed in respect of tangible immovable property of value less than Rs.100 though the sale is not required to be effected by a registered instrument, but if such a sale deed is accompanied by delivery of possession the sale would be effective in spite of non-registration. An unregistered sale deed maybe used as evidence of the character of possession. Twelve years possession under an unregistered sale deed of immovable property, of whatever value will create title by adverse possession. Students can draft the sale deed with the help of different books of conveyancing