Property Transactions & Real Estate : The Legal Principles

 Property Transactions & Real Estate : The Legal Principles

This Article is written in Memory of Late Shri R.P. Mishra, Prayagraj

S.54 of TPA, 1882 says ownership is to be transferred when sale occurs. There cannot be a sale without transfer of ownership ; there cannot be a sale deed without transfer of ownership and there cannot be an agreement to sell when there is no agreement to transfer ownership ; mere transfer of possession is simply not what would make a transaction "sale". S.105 of TPA, 1882 is relevant to know "lease" ; here, transfer to enjoy such property for certain time is there ; or in perpetuity. S.106 says residential leases can be terminated by 15 days' notice. S.108 of TPA, 1882 would show that property is substantially unfit after lease then lease, at the option of lessee, becomes void. If there is an untransferable right of occupancy given to tenant then such right cannot be transferred under S.108 (j) of TPA, 1882. A lessee cannot create any permanent structure, except for agricultural purposes under S.108 (p) of TPA, 1882. What S.111 (g) says is that lease is determined by forfeiture the moment lessee claims title in himself. 

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. This is stated in S.118 of TPA, 1882. 

Sky Land International Pvt Ltd v. Kavita P. Lalwani [2012] GCtR 4501 (Delhi) has clarified whether a person who has taken a property on lease can claim himself to be the owner or not. It also explains who is a tenant at sufferance. 

Position on lease was also explained in Pakistan International Airlines v. Abaskar Constructions Pvt Ltd [2011] GCtR 6360 (Delhi) on whether a person (Lessee) who has entered into a registered lease deed becomes the owner of the premises. The lessee in this case claimed rights by virtue of his possession of premises. This case explains when tenancy by holding over occurs.