Professional Documents
Culture Documents
SUBMITTED TO:
DR. SUSHMA SHARMA
ASS.
PROFESSOR
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SUBMITTED BY:
DEEPAK KANERIYA
2012BALLB76
Table of index
Declaration..........................................................................................3
Introduction.......................................................................................4
Implied contract by seller..............................................................3-5
Rights and liabilities of seller..........................................................6-8
Implied contract by seller with respect to TPA.............................8-9
Conclusion.........................................................................................10
Bibliography.....................................................................................11
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Declaration
The text reported in the project is the outcome of my own efforts and no part of this project has
been copied in any unauthorized manner and no part in it has been incorporated without due
acknowledgement.
DEEPAK KANERIYA
2012BALLAB 76
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Introduction
Section 54 define sales as the transfer of ownership in consideration for a price paid or
promised or part paid and part promised.
If we divide the section in two fold then we will clearly extract two ingredients which define sale
which are as follows:
1. Transfer of ownership
2. Price is the consideration i:e the technical name for consideration under section 54 is
price and in case of lease is rent and price is the essence of the contract.1
Transfer of ownership
Sale is a transfer of ownership. Ownership is absolute interest in the property. Ownership is
absolute interest in the property. Therefore, in a sale there is transfer of all the rights in the
property sold; no right in respect of property are left with the transferor (seller).
Ownership means bundles of rights and liability of property.2 So, when ownership is transferred,
there is transfer of all the rights in property by transferor to transferee. In other words nothing
less than ownership or absolute or absolute interest may be transferred by way of sale. Lease is
also a transfer of property but there is transfer of only partial interest (right to use or enjoyment
of property).3
1 Morgan v. millman (1858)
2 Section 55 of transfer of property act 1882 deals with the rights and liabilities of
the seller and buyer.
3 Vijay kumar v. Devesh behari saxena, AIR 2008 ALL 66 (DB), the ownership of a
plot was tranferred for a consideration of rupees 20 lakh. The document was held to
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Similarly, mortgage too is transfer of property but, it is transfer of merely a limited interest in the
mortgaged- property.
The provisions of the section do not bar a benami transaction. There is no embargo on getting the
property registered in the name of one person although the real beneficiary of the transaction
would be another person.4
Money consideration
Ownership must be transferred in exchange of money. The money in exchange of ownership is
called price. However, for a valid sale the amount of money is an irrelevant factor.
Essentials:1. It should be in money.
2. Fixed before transfer of title.
However in some cases it has held by the courts that money is not a sine qua non for the
completion of the sale.5 The courts said that the registered sale deed executed in favours of the
purchaser who entered into the possession without payment of price would be a sale.6
have only covenanted that he has done no act whereby the property is encumbered or whereby he
is hindered from transferring it. The implied covenant for title does not apply as such in the cases
where vendor is selling property as the guardian of minors property or as trustee. It may be
noted that a trustee has the power to transfer the trust property but he has to declare that he is
selling trust property which is not his own. Therefore, where a trustee sells such property without
disclosing that the property is trust property , it may amount breach of covenant for title.
However, since the rights and liabilities under section 55 are in absence of any contract to the
contrary, the parties may agree in express terms and enter into a contract in any manner contrary
to this provision. But such contract must expressely and clearly shows that buyer is not bound by
implied covenant for title as contemplated under this clause.
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Conclusion
So the general understanding with respect to the implied contract is the contract which is
concluded by the conditions. However as far as the Indian contract act 1872 prescribe that in
case where the express contract has been concluded between the parties in that case former will
prevail over implied contract. Implied contract can be made by seller through promise or through
some necessary implication and where the condition fulfilled contract shall be regarded as the
concluded one.
Transfer of property act 1882 under section 55 laid down rights and liabilities of the buyer and
the seller respectively. We all know that Sale is a transfer of ownership or absolute interest.
When a person contracts to sell his property, it is implied that he must be owner of that property
otherwise he would not have attempted to sell it. Section 55(2) of the act lays down that in every
sale the seller impliedly undertake that the interest which he is transferring subsists and he has
authority to transfer the same. This is known as the implied covenant for title.
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Bibliography
1.
2.
3.
4.
5.
The transfer of property by Dr. R.K.Sinha, central law agency, 13th edition.
The transfer of property by Avtar Singh allahabad law agency, 10th edition.
The indian contract act by Mulla, lexis nexis publication,13th edition.
Manupatra
http://indiankanoon.org/
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