Transfer of Property Act MCQs for Judiciary

Correct answer: C. A written instrument signed by the transferor or his agent

Section 130 of the TPA provides that the transfer of an actionable claim, whether with or without consideration, shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent. Unlike transfers of immovable property, no registration is required for a valid transfer of an actionable claim. An "actionable claim" means a claim to any debt, other than a debt secured by mortgage of immovable property or pledge of movable property. Examples include book debts, money claims, and insurance claims. Section 131 requires notice to be given to the debtor for the transfer to be effective against the debtor, but notice is not required for the transfer to be valid between transferor and transferee.

Source note: Sections 130-131, TPA 1882

Correct answer: B. A debt secured by mortgage of immovable property

Section 3 of the TPA defines "actionable claim" as a claim to any debt (other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property) or to any beneficial interest in movable property not in the possession of the claimant. Specifically excluded are: (i) debts secured by mortgage of immovable property; and (ii) debts secured by pledge or hypothecation of movable property. These secured debts follow the rules applicable to the respective security (mortgage law or pledge law). Unsecured book debts, rental arrears, insurance claims, and claims under contracts are actionable claims transferable under Section 130. Shares in a company are also regarded as actionable claims in some contexts.

Source note: Section 3, TPA 1882; Section 130, TPA 1882

Correct answer: C. Both witnesses must be present simultaneously at the time of execution

Section 3 of the TPA 1882 expressly states that it shall not be necessary that more than one of such witnesses shall have been present at the same time. Therefore, both witnesses need not be present simultaneously. The essential requirements for valid attestation are: (i) at least two witnesses; (ii) each must have seen the executant sign/affix mark, or seen another sign in executant's presence and by their direction, or received personal acknowledgment from the executant; (iii) each must sign in the presence of the executant; and (iv) the witnesses must attest with animo attestandi (intention to attest). No particular form of attestation is necessary. Attestation must always be subsequent to the execution of the document.

Source note: Section 3, TPA 1882

Correct answer: B. The intention to bear witness and authenticate the execution of the document

Animo attestandi means the intention to attest, i.e., the mental act of intending to authenticate the execution of the document. For valid attestation, the physical act of signing must coincide with the mental intention to attest. A person who signs merely to certify that they are the scribe, or for the purpose of identifying the executant, or as a registering officer in discharge of statutory duty, does not attest with animo attestandi and therefore is not an attesting witness. This principle was emphatically stated in M.L. Abdul Jabbar Sahib v. H. Venkata Sastri (AIR 1969 SC 1147) where identifying witnesses and the sub-registrar were held to have not attested with animo attestandi, rendering the document improperly attested.

Source note: Section 3, TPA 1882; M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: D. A person who is a party to the transaction but not to the deed is a competent attesting witness

In Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty (AIR 1965 SC 1738), the Supreme Court drew a crucial distinction between a party to the deed and a party to the transaction. A party who executes the deed (party to the deed) cannot be an attesting witness as that would make them both executant and witness. However, a person who is a party to the underlying transaction (party to the transaction) but is not named in the deed itself can validly attest. B, the actual moneylender whose money was lent through C, was not a party to the mortgage deed (which was between A and C) but was a party to the transaction. The Court held B's attestation was valid and the deed properly attested.

Source note: Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, AIR 1965 SC 1738

Correct answer: A. No charge was created and the plaintiff ranked as an unsecured creditor

In M.L. Abdul Jabbar Sahib v. H. Venkata Sastri (AIR 1969 SC 1147), the security bond required valid attestation by two witnesses to create a charge over property. The sub-registrar had signed in discharge of statutory duty (not with animo attestandi) and identifying witnesses had signed to identify the executant (not to attest execution). Since only one valid attesting witness was established, no charge was created over the property. As a result, the plaintiff A's status was that of an unsecured creditor, at par with the other three decree-holders. This case illustrates the grave consequences of improper attestation: a document that should have created a secured interest fails to do so, leaving the creditor in the same position as unsecured creditors.

Source note: M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: C. Witnesses who recognize the pardanashin woman by voice and see her execute the deed from behind a curtain can validly attest

In Padarath Halwai v. Ram Narain (AIR 1915 PC 21), the Privy Council laid down a relaxed rule for attestation of documents executed by pardanashin women. Since social customs may prevent witnesses from seeing the woman's face, the strict requirement that the witness "see" the executant sign is relaxed. If the witnesses are well acquainted with the voice of the pardanashin woman, recognize her by voice, and see the deed being executed from behind a curtain, the attestation is valid. In this case, the two witnesses were well-acquainted with the voices of the two pardanashin mortgagors, saw them execute the deed with their own hands (through the curtain) and then signed as attesting witnesses. The Privy Council held the mortgage deed duly attested under Section 59 of the TPA.

Source note: Padarath Halwai v. Ram Narain, AIR 1915 PC 21

Correct answer: B. The executant himself who has signed the document

The executant who has signed the document cannot be an attesting witness, as this would make the same person both the executant and the witness, which is legally absurd and contradictory. Religion, sex, caste, financial status, and literacy are all irrelevant to competency as an attesting witness under the TPA. An illiterate person, a neighbour, a relative, a business partner, or even a sub-registrar with animus to attest can all be competent attesting witnesses. The disqualifications are limited to: a party to the deed, a person executing as power of attorney holder or agent of a party, and a person who does not possess the animus attestandi. The fundamental requirement is that the witness signs with the intention to authenticate the execution.

Source note: Section 3, TPA 1882; M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: D. Mortgage deed, gift deed of immovable property, and lease for more than one year

Attestation by at least two witnesses is a mandatory requirement under the TPA for: (i) mortgage deeds creating a charge on immovable property (Section 59); (ii) gift deeds of immovable property (Section 123); and (iii) leases of immovable property for more than one year or reserving a yearly rent (Section 107). An agreement to sell does not require attestation, and sale deeds (Section 54) require registration but the Act does not prescribe attestation as a legal requirement for sale deeds (though it is commonly done for evidentiary purposes). Testamentary instruments (Wills) require attestation under the Indian Succession Act 1925. Failure to attest a document that requires attestation renders it legally defective and incapable of creating the intended legal effect.

Source note: Sections 59, 107, 123, TPA 1882

Correct answer: A. Subsequent to the execution of the document

Attestation under Section 3 of the TPA must always be subsequent to the execution of the document. Attestation means bearing witness to the voluntary execution of the transfer deed; therefore, it can only occur after or at the time the executant has signed or affixed their mark. Attestation prior to execution would be meaningless as there is nothing to authenticate. The definition in Section 3 requires that witnesses should have "seen the executant sign or affix his mark" or "received from the executant a personal acknowledgement of his signature or mark" - both of which presuppose that the executant has already signed. This temporal requirement is fundamental and attestation purportedly made before execution has no legal validity.

Source note: Section 3, TPA 1882

Correct answer: B. The document may not be considered properly attested as the witness cannot confirm voluntary execution

In M.L. Abdul Jabbar Sahib v. H. Venkata Sastri (AIR 1969 SC 1147), the Supreme Court noted that where the deed was written in English and the executant was unfamiliar with the language, and the contents were not explained to the executant, the document was not properly attested. The rationale is that attestation requires bearing witness to voluntary execution; if the executant does not understand what they are signing, the very foundation of voluntary execution is questionable. An attesting witness who witnesses a signing without ensuring the executant understands the document may not be validly attesting the voluntary execution as required by Section 3. This principle protects parties from being misled into executing instruments they do not understand.

Source note: M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147; Section 3, TPA 1882

Correct answer: A. Section 100 TPA (charges) does not attract Section 59 (attestation requirement for mortgages); a charge requires only registration under Section 17 Registration Act, not attestation.

This is a critical nuance in Abdul Jabbar Sahib (AIR 1969 SC 1147). The High Court had erroneously held Section 100 (charges) attracted Section 59 (mortgages) requiring attestation by two witnesses. The Supreme Court CORRECTED this at para 13: "If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under Section 17(1)(b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses." Therefore: a CHARGE requires only REGISTRATION; it does NOT require attestation. The Court consequently held the security bond was valid (though attested by only one witness) - it created a valid charge; only the attestation question for the charge purpose was resolved in the chargor's favour. The charge was valid and the plaintiff was a secured creditor.

Source note: M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147; Section 100, TPA 1882

Correct answer: C. The Sub-Registrar must have: (i) seen execution or received personal acknowledgement; (ii) signed in executant's presence.

The Madras Full Bench (cited in Abdul Jabbar Sahib) held: "Such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses IF (1) the signatories are those who have seen the execution or received a personal acknowledgement from the executant of his having executed the document, (2) they sign their names in the presence of the executant and (3) while so doing they had the animus to attest. The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well." The Supreme Court confirmed this limited interpretation. All three conditions must be separately proved.

Source note: M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: B. The executant personally - only the executant's own direct acknowledgement to the witness satisfies this requirement; acknowledgement from a scribe, agent, or third party on the executant's behalf is insufficient

Section 3 TPA specifies three alternative routes to witness qualification, including receipt of "a personal acknowledgement of his signature or mark" from "the executant." The word "personal" is crucial: only the EXECUTANT themselves can give the acknowledgement. If a third party (the scribe, the agent, or another witness) tells the prospective attesting witness "X signed this document," that does not constitute the "personal acknowledgement" from the executant. The executant must directly communicate to the witness: "I signed this document" or "that is my signature/thumb impression." This rule protects against fraud - requiring direct communication ensures the executant had actual knowledge of the document and voluntarily acknowledged their execution. Courts have consistently applied this strict interpretation.

Source note: Section 3, TPA 1882; M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: D. The document was not properly attested - an attesting witness cannot confirm voluntary and knowing execution where the executant did not understand the document's contents

In M.L. Abdul Jabbar Sahib v. H. Venkata Sastri (AIR 1969 SC 1147), the Supreme Court noted: "Where the deed was written in the English language and the executant as well as the attesting witnesses were unfamiliar with this language, and the contents of the deed were not explained to the executant, the court held that the document was not properly attested." The rationale: attestation means bearing witness to VOLUNTARY execution. If the executant does not understand what they are executing (language unknown, contents unexplained), the foundation of voluntary execution is questionable. An attesting witness who sees someone sign a document they do not understand cannot truly attest that the execution was voluntary and informed. This additional substantive requirement for proper attestation protects parties who are linguistically or educationally disadvantaged from being bound by documents they did not understand.

Source note: M.L. Abdul Jabbar Sahib v. H. Venkata Sastri, AIR 1969 SC 1147

Correct answer: A. The women were in an ante-room separated from the witnesses by a "chick" (an unlined curtain, not a solid wall), recognisable by their voices; the witnesses saw the deed execution through the chick and recognised the women by voice

In Padarath Halwai v. Ram Narain (AIR 1915 PC 21), the Privy Council noted the specific physical arrangement: "The mortgagors were two pardahnashin ladies who did not appear before the attesting witnesses, and consequently their faces were not seen by the witnesses. These two attesting witnesses were, however, well acquainted with the voices of the ladies." The ladies were in an ante-room and "between them and these two attesting witnesses there was a chick, which was not lined with cloth, hanging in the doorway." The witnesses: (i) "recognised the ladies by their voices"; (ii) "saw each lady execute the deed with her own hand" through the unlined chick (so visual confirmation of execution was possible, even if faces were unseen); (iii) then put their signatures as attesting witnesses. The defendants tried to prove a solid tat hung in the doorway (nothing visible through it) - but the Board accepted the witnesses' evidence of the chick.

Source note: Padarath Halwai v. Ram Narain, AIR 1915 PC 21

Correct answer: C. Property is held by one person but the consideration is paid by and the benefit enjoyed by another

Under the Benami Transactions (Prohibition) Act 1988 as amended by the Benami Transactions (Prohibition) Amendment Act 2016, a benami transaction is one where property is held by a person (benamidar) but the consideration for its acquisition was provided by another person (beneficial owner) and the property is held for the immediate or future benefit of that other person. The benamidar may be a relative, an associate, or any other person. Such transactions are prohibited. The 2016 Amendment significantly strengthened the law by providing for confiscation of benami property, attachment proceedings, and criminal punishment (rigorous imprisonment up to 7 years). Exceptions include property held in a fiduciary capacity, property held in HUF by karta, and property held in the name of spouse or children from known sources.

Source note: Benami Transactions (Prohibition) Act 1988; Benami Transactions (Prohibition) Amendment Act 2016

Correct answer: C. C's registered mortgage prevails if C had no notice of B's prior agreement

Under the principles of the TPA and the Registration Act 1908, an unregistered agreement to sell does not create any interest in or charge on the property (Section 54, TPA). C's registered mortgage creates a legal charge over the property. If C had no notice (actual or constructive) of B's prior agreement and took the mortgage in good faith for consideration, C's registered mortgage will prevail over B's unregistered agreement. Section 17 and 49 of the Registration Act 1908 provide that documents required to be registered, if unregistered, cannot affect immovable property, cannot be received as evidence of transaction, and cannot confer any power or right. B's remedy is specific performance against A personally, but B cannot defeat C's registered security. This illustrates the importance of registration under the TPA system.

Source note: Section 54, TPA 1882; Sections 17, 49, Registration Act 1908

Correct answer: B. A lease transfers an interest in property; a license merely confers a personal right to use without creating any interest

The fundamental distinction between a lease and a license is: a lease under Section 105 of the TPA transfers a right to enjoy immovable property, creating a legal interest (estate) in the property in favour of the lessee. A license under Section 52 of the Indian Easements Act 1882 merely confers on the licensee the personal right to do something in or over the property that would otherwise be unlawful, without creating any interest in the property. A license is revocable (subject to the law) and is personal; a lease creates a property right that can be transferred and binds third parties. The test is whether exclusive possession was intended to be granted; if yes, it is likely a lease; if only permission to use is granted, it is a license.

Source note: Section 105, TPA 1882; Section 52, Indian Easements Act 1882

Correct answer: C. C can invoke marshalling (Section 81 TPA) to require B to first satisfy his claim from property Y (exclusively available to B) before proceeding against property X (available to both B and C)

Classic marshalling scenario (Section 81 TPA): A mortgages X AND Y to B (Rs. 10 lakhs); A then mortgages only X to C (Rs. 5 lakhs). If B enforces against X only, C loses all security. MARSHALLING PROTECTS C: C can require B to FIRST satisfy his claim from Y (mortgaged ONLY to B) before resorting to X (mortgaged to BOTH B and C). Outcome: B must proceed against Y first; if Y yields Rs. 8 lakhs, B can then seek remaining Rs. 2 lakhs from X; C then has X available to satisfy his Rs. 5 lakh claim from value remaining in X. Doctrine rationale: B has a choice of properties; his exercise of that choice should not prejudice C who had no say in the matter.

Source note: Section 81, TPA 1882

Correct answer: B. Section 6(a) spes successionis is a mere hope of succession with no present incomplete title (non-transferable); Section 21 contingent interest is based on a present incomplete title capable of becoming complete on an uncertain event (transferable)

The crucial distinction between spes successionis and contingent interest: SPES SUCCESSIONIS (Section 6(a)): (1) A MERE HOPE or CHANCE of succession with no present title of any kind; (2) Example: A's hope of inheriting from his living parent; (3) NON-TRANSFERABLE under Section 6(a); any transfer is void. CONTINGENT INTEREST (Section 21): (1) Based on a PRESENT INCOMPLETE TITLE that is capable of becoming complete on the happening of an uncertain event; (2) Example: B has a transfer to B if C dies without children - B has an incomplete present title contingent on C dying childless; (3) TRANSFERABLE because B has a present (though incomplete) proprietary right; (4) Rajesh Kanta Roy v. Shanti Debi (AIR 1957 SC 255): contingent interests are attachable and transferable. The distinction lies in whether there is ANY present title or merely a bare hope.

Source note: Section 6(a), 21, TPA 1882

Correct answer: A. The contingent interest generally fails and the property reverts to the transferor

Section 21 of the TPA provides that where an interest is created to take effect only on the happening of a specified uncertain event, the person acquires a contingent interest. If the transferee dies before the contingent event occurs, the contingent interest generally fails as the right was personal to the transferee and dependent on a condition that never materialized during the transferee's lifetime. Unlike a vested interest (which passes to heirs upon death), a contingent interest that has not vested at the time of death does not necessarily pass to heirs unless the terms of the transfer provide otherwise. The property would then revert to the transferor or pass under the transfer instrument's provisions. This is a key distinction from vested interest.

Source note: Section 21, TPA 1882

Correct answer: C. Whatever is planted in the soil becomes part of the land

The maxim "Quiquid planatur solo cedit" means whatever is attached to or planted in the soil becomes part of the land. This foundational principle of the doctrine of fixtures under Section 3 of the TPA holds that movable objects, when permanently attached to earth, become immovable property. Section 3 defines "attached to earth" to include things rooted in earth such as trees and shrubs, things embedded in earth such as buildings and walls, and things attached to what is embedded in earth for permanent beneficial enjoyment. The test for determining whether an attachment is permanent involves both the degree of annexation and the purpose/object of annexation, as established in Holland v. Hoggson (1872) and applied in Indian jurisprudence.

Source note: Section 3, TPA 1882; Doctrine of Fixtures

Correct answer: B. The machinery was embedded with intent for permanent use and formed part of the factory

In Duncans Industries Ltd. v. State of U.P. (2000 1 SCC 633), the Supreme Court held that fertilizer plant machinery permanently embedded in earth was immovable property. The Court applied the two-fold test: (i) the attachment must be permanent, intended for perpetual use or life of the attachment; and (ii) the attachment must constitute a permanent improvement to the land. Since the machinery was embedded with the intent to operate a fertilizer factory permanently and the very nature of its use required permanent attachment to the ground, it could not be treated as movable. The fact that parties had labeled it movable to save stamp duty did not change its legal character. Physical delivery without a written, attested, registered document therefore conveyed no title.

Source note: Duncans Industries Ltd. v. State of U.P., 2000 1 SCC 633