Meaning, Concept & Devolution of Immovable
Property During Lifetime
Names: Tushar Singh Parmar and Janvi Badiyani
Roll no.: B-61 & A- 58
Division- A & B
Year: 5th B.A. LL.B. Sem-IX
Definition of Immovable Property
The Transfer of Property act, 1882 has not define the term ‘Immovable Property’. It
only says that Immovable property does not include standing timber, growing crops
or grass.
However section 3(25) of the general clause act, 1897 defines the term immovable
property as-
“Immovable property shall include land, benefit to arise out of land, and things
attached to land or permanently fastened to anything attached to the Earth.”
It was held in the case of Babulal V. Bhavani, 1912 that the definition of immovable
property given in the general clause act is applicable to the Transfer of Property act.
Therefore Immovable Property Includes:-
1. Land.
2. Benefit to arise out of land,
◦ All the benefits arising out of land are also considered as immovable property because such
benefits cannot be served from the land and are incidents of it.
◦ Right to collect- Fruits, flowers, leaves etc. from trees, revenue from agricultural land, right to
take out minerals, to collect fish ponds, debt secured by mortgage of immovable property, rent
from tenanted property all are benefits arising out of land.
3. Things attached to earth i.e.
i. Things embedded in earth,
ii. Things attached to what is so embedded in earth,
iii. Things rooted in earth; except
a) Standing timber,
b) Growing crops, or
c) Growing grass
Devolution of Immovable Property during the Lifetime-
Intervivos
There are 5 ways for devolution of Immovable property during the lifetime of
owner:-
i. Sale of Immovable property
ii. Mortgage of Immovable property
iii. Lease of Immovable property
iv. Exchange of Immovable property
v. Gift of Immovable Property.
Sale of Immovable Property
Sale is defined U/s 54 of Transfer of property act as ‘transfer of ownership in
exchange for a price paid or promised or part-paid and part-promised’. In a sale
there is an absolute transfer of all rights in the property sold.
Contract for sale- A contract for the sale of immovable property is a contract
that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
The essential elements of a sale are-
1. The parties;
2. The subject-matter;
3. The price or consideration;
4. The transfer or conveyance.
Mortgage of Immovable Property
Mortgage is defined U/s 58 of Transfer of Property act as ‘the transfer of interest
in specific immovable property for the purpose of securing payment of money
advanced or to be advanced by the way of loan, an existing future debt, or the
performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee, a mortgagee; the principal
money and interest of which payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which the transfer is effected is
called a mortgage-deed-
There are 6 ways of Mortgage of property-
a) Simple Mortgage
b) Mortgage by conditional sale
c) Usufructuary Mortgage
d) English Mortgage
e) Mortgage by deposit of title deeds
f) Anomalous Mortgage.
The following are the essential characteristics/ elements of a mortgage-
1. There must be a transfer of an interest.
2. There must be a specific immovable property intended to be mortgaged.
3. The transfer must be made to secure the payment of a loan or to secure the
performance of a contract.
Lease of Immovable Property
Lease is defined U/s 105 of Transfer of Property act a ‘a lease of immovable
property is a transfer of a right to enjoy such property, made for a certain time,
express or implied, or in perpetuity, in consideration, in consideration of a price
paid or promised, or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified or on specified occasions, to
the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called lessee, the price is
called the premium, and the money, share, service or other thing to be so
rendered is called the rent.
The essential elements of a lease are-
1. The parties;
2. The subject-matter of immovable property;
3. The duration of a right to enjoy the immovable property; and
4. The consideration
Exchange of Immovable Property
Exchange is defined U/s 118 of Transfer of Property act as ‘when two persons
mutually transfer the ownership of one thing for the ownership of another, neither
thing or things being money only, the transaction is called Exchange’.
A transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale.
The essential characteristic of every transaction in the nature of an exchange is that it
must be a transfer of a thing for another thing and both or either of these things may
be movable or immovable.
Gift of Immovable Property
Gift is defined U/s 122 of Transfer of Property act as ‘the transfer of certain existing
movable or immovable property made voluntarily and without consideration, by one
person, called the donor, to another, called the done, and accepted by or on behalf of
the done.
Acceptance when to be made- Such acceptance may be made during the lifetime of
the donor and while he is still capable of giving. If the done dies before acceptance,
the gift is void.
Section 122- clearly postulates that a gift must have two essential characteristics-
1. That it must be made voluntarily, and
2. That it should be without consideration.
This is apart from the other ingredients like acceptance, etc.
The elements of a valid gift are as under:-
1. There must be transfer of ownership;
2. The ownership must relate to a property in existence;
3. The transfer must be without consideration;
4. It must have been made voluntarily;
5. The donor must be a competent person;
6. The transferee must accept gift.
