Author: Yamina Malek, GLS Law College

Transfer of Property and Special Laws 

Under the title of Section 2 of the Transfer of Property Act, 1882, the transfer of property by operation of law has been barred. It has been mentioned in the preamble of the Act that the Act operates only when the transfer is inter vivos, act between living persons. By making this provision available, the Transfer of Property Act has been suitable to legislate a law parallel to the formerly being laws of testamentary and intestate transfers which are in substance transfers by operation of law. Thus, the Act of 1882 is limited and not total. The limitation to the connection of this Act is that it only covers transfers between two persons and doesn’t incorporate all the other modes of transfer. In a transfer of property by act of parties, the property is transferred indeed though the transferor isn’t a living person or isn’t alive on the date of similar transfer. The property in this act is mechanically transferred by the process of law. The act of the transferor or the transferee doesn’t affect it in anyway. In the cases where the property is transferred by the will or by rules of heritage, the propositus or the last holder of the property does nothing. It takes place through the operation or by procedures worked out in the laws of heritage. In this way, the transfers effectuated by the orders of the courts are by operation and operation of law. This is because the transfer isn’t made by the possessors of the property but happens by the prosecution of a court order

Facts 

The Karnataka government hand over two acres of holdings to Smt Gangamma on or around January 5, 1961. On September 13, 1962, the complainant reportedly paid a significant sum for the right to acquire the land mentioned over from the dealer through a recorded trade deed for precious consideration. Beginning on January 1, 1979, the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act, 1978, went into effect.  Due to Section 4 of the Act, all estrangements done in violation of the conditions of the entitlement were supposed null and illegal. Under Section 5 of the Act, all similar lands were recovered and returned to the original heir. The original heir applied for the launch of a process under Section 4 of the Act on or around 11.9.1986; as a result, the proceeding was started against the complainant. On 29.5.1987, the Assistant Commissioner issued a restoration order for the land in favour of the first heir 29.5.1987.  On March 25, 1889, the complainant filed an appeal before the Deputy Commissioner, likewise denied. The complainant also filed a writ solicitation, designated as Writ solicitation No. 23216 of 1990, asking the Court to declare that all the order made by the Assistant Commissioner under Section 5 of the Act to bring back specific property would be subject to the transferee’s right to recover the value of the advancements per Section 51 of the Transfer of Property Act.  The learned single judge rejected the writ mentioned above solicitation. Due to an order from 16.2.1996, the complainant’s writ appeal was dismissed. Whether Section 51 of the Transfer of Property Act applied to situations covered by Sections 4 and 5 of the Karnataka Scheduled gentries and slated lines( Prohibition of Transfer of Certain Lands Act) was a pivotal legal issue that was brought up in this case.  The Act’s Sections 4 and 5 dealt with the restriction of the transfer of awarded lands and the return of granted lands, independently. To help and support the ST SC communities economically, the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act was passed with the pretensions outlined in the preamble of the Constitution of India and the DPSP3. However, the state is authorised by the Act’s vittles to regain the property and return it to the succeeders, If it’s determined that any land transfer passed in violation of the entitlement’s terms.  Such a resumption order must be granted to minimise dispensable detention or protract the procedures. In this case, the transferee has cultivated the land that was given. With, Section 51 of the Transfer of Property Act which reads as ” When the transferee of irremovable property makes any enhancement on the property, believing in good faith that he’s entitled to that, and he latterly evicted from that place by any person having a better title, the transferee has a right to bear the person causing the eviction either to have the value of the enhancement estimated and paid or secured to the transferee or to vend interest in the property to transferee at the also request value thereof, irrespective of the value of similar enhancement.”  Nonetheless, under Section 4 and Section 5 of the other Act, the transfer was illegal, and the transferee has no right in the granted lands so transferred. Thus, this conflict came a question of law before the Court in this case. 

Issues

1. Applicability of Section 4 and Section 5 of The Karnataka Scheduled Castes And Scheduled Tribes (Prohibition Of Transfer Of Certain Lands) Act, 1978
2. Will a personal law prevail or a general law?
3. The pertinence of Section 51 of the Transfer of Property Act 1882?

Law/Statutes

1. Transfer Of Property Act 1882
2. The Karnataka Scheduled Castes And Scheduled Tribes (Prohibition Of Transfer Of Certain Lands) Act, 1978
3. The Transfer Of Property Act 1882

Court held that:

 Ethnical areas have their own problems. People belonging to similar communities have historically been weaker sections of the society. They need the protection of the laws as they’re susceptible and fall supplicate to the tactics of unconscionable people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The object sought to be achieved by the Constitution of India and the 1956 Regulations is to see that a member of an endemic lineage indefeatably continues to enjoy the property which he acquire and every procedure known to law by which title in irremovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the irremovable property of one ethnical may come to vest in another ethnical but the title in irremovable property vesting in any ethnical mustn’t come to vest in anon-tribal. This is for the protection of the interest of the people belonging to the ethnical communities. The Court was further of the opinion that the transfer mentioned under Section 51 of the Transfer of Property Act, wasn’t inclusive of the transfer of property by operation of law. The matter is governed by a special enactment and thus, the Transfer of Property Act, which in substance is a general legislation, would not be applicable in this case. 

Analysis of the Case:

There was a contradiction between Section 4,5 of the Karnataka Scheduled gentries and slated lines (Prohibition of Transfer of Certain Lands) Act and Section 51 of the TPA in the case of Harish Chandra Hegde v. State of Karnataka and Others. According to the Court, the Transfer of Property Act is a general law. Still, the Karnataka Scheduled gentries and slated lines( Prohibition of Transfer of Certain Lands) Act was passed to help guard impoverished populations( SC, ST). The former will therefore win. Ethnical places struggle with unique issues. Historically, members of these communities have been the less important groups in society. They bear the protection of the law because they’re trusting and fluently duped by dishonest individualities. Because of their innocence, poverty, and literal backwardness, they’re vulnerable to exploitation. The purpose of the Indian Constitution and the 1956 Regulations is to insure that a member of an indigenous lineage retains power of the property he acquires and that every legal procedure for transferring title to real estate should be limited in its operation to ethnical members so that, indeed if one ethnical member acquires real estate from another, the title will remain in the original ethnical member. This serves to guard the interests of those who are a part of ethnical groups. The Court also believed that a transfer by operation of law wasn’t included in the transfer described in Section 51 of the Transfer of Property Act. The Transfer of Property Act, basically a general law, would only apply if a separate act handles the content. The transfer of property by operation of law has been interdicted by Section 2 of the Transfer of Property Act of 1882. This Act’s operation is constrained because it simply addresses transfers between two people and excludes all other transfer forms. Nothing withstanding in the Act shall apply to transfers made by legal procedures or court orders, according to Section 2(d). According to the clause in Section 2( d), if the Transfer of Property Act’s vittles clashes with any other laws, the other laws would take priority. The specifics and pretensions of the particular laws are for a specific reason and deal with specialised regions. Therefore, the specific laws have replaced the Transfer of Property Act, a general law governing all ordinary property transfer circumstances. 

Conclusion 

The Harish Chandra Hegde v. State of Karnataka case is one of the crucial rulings in this area. In this case, Section 51 of the Transfer of Property Act contradicted certain portions of the Karnataka Scheduled gentries and slated lines( Prohibition of Transfer of Certain Lands) Act. The Karnataka Scheduled gentries and slated lines( Prohibition of Transfer of Certain Lands) Act, according to the Court, was passed to cover the interests of a specific group within society. The Scheduled Caste and Scheduled Tribe demanded to be supported and defended. therefore, the Act over was approved per the Directive Principles of State Policy. As a result, it had the characteristics of a unique act. The rules of a general act would therefore not apply to such an act. As a result, the circumstances in this case weren’t covered by Section 51 of the Transfer of property act.

FAQ

What are special laws?

Special laws are applicable to particular subject only, they will cover specific issues.

Harish Chandra Hegde v. State of Karnataka deals with?

It deals with the conflict between Transfer of Property Act and the Special laws. 

Where Transfer of Property Act is not applicable?

It will not be applicable where the transfer is made under certain other laws.