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XXVI OF 1881. 45 & 46 Vic. c. 61. 76 (c)

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XXVI OF 1881. 45 & 46 VIC. 0. 61. 102 103

51 (6), (6). 104

51 (2). 105

41 (2), 45 (2), 74(2),

86 (2). 106, par. I 49 (12), (6).

49 (12), (a).

49 (14). 108, par. I

61 (1). 109

65 (3), (a), (6). 110 111, par. I

66 (1), (2).

67 (2). 112

67 (I).

68 (1), (3), (4). 114

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19 (2), (a). „ (6)

19 (2), (8).
19 (2), (c).

19 (2), (d). 87

64 (1), (2). 88

64 (I). 89, pars. 1, 3 64 (1), proviso.

2, 3 79, proviso. 90

61. 91

43 (1), (a). 92

47 (1). 93

48, 49 (1). (2)

52 (3). 94

49 (8), (9), (10), (5),

(12). „(1) 49 (15) 95

49 (14). 96

49 (13). 97

49 (9) 98 (a)

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55 (2), (b), (c). 123

76 (1). 124

76 (2). 125, pars. 2, 3,4 77 (2), (3), (4), (5). 126 127

79 (1). 128

80. 129

79 (2). 130

81. 131

82. 132, par. 1

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71 (2). 133

71 (3). 134

72 (1), (2). 135

72 (3). 136

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TABLE SHOWING THE CORRESPONDING SECTIONS

OF 45 & 46 VIC. c. 61 AND ACT XXVI OF 1881.

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45 & 46 Vic. c. 61. XXVI OF 1881. 1

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22, par. 2, 25. (2), (3)

23, 24. 15

7. 16 17 (1). 7. 18 19

86. 20

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(6) 46, 118 (2). 22

26. 23 24 25

28. 26 (1)

28, 29, 27 28 (1), (2) 43. 29 (1),(a),(6) 9.

(3) 30

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118 (e). 33

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106, 107.
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45 & 46 Vic. c. 61. XXVI OF 1881. 62 (1), (2)

82 (6). 63

40, 82 (a). 64

87, 88, 89. 65

7, 108, 109, 110. 66

111 (1). 67

111 (2), 112. 68

113, 114. 69 70 71

132, 133. 72

134, 135, 136. 73

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72, 84. (2)

105. 75 76

123, 124.

125. 78

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79, prov.

A table of fees to be charged by persons appointed by the Notarial

fees and Governor General in Council under sec. 3 of Act XXVI of 1881

forms. to perform the functions of a notary public, and a set of forms for use by notaries public, will be found in Circular No. 103041039, dated 19th July, 1883, published in the Supplement to the Gazette of India for 2 1st July, 1883, p. 1347.

INTRODUCTION TO THE TRANSFER OF

PROPERTY ACT.

The chief objects of this Act are two: first, to bring the rules which regulate the transmission of property between living persons into harmony with the rules affecting its devolution upon death, and thus to furnish the complement of the work commenced in framing the law of intestate and testamentary succession, and, secondly, to complete the Code of contract law, so far as relates to immoveable property. In aiming at these objects, the legislature has striven to avoid refinements and technicalities, to discard all rules whereby the parties to a transaction were made liable to unexpected consequences, all rules which seemed unfair or inerpedient in themselves, all provisions in deeds which were found in practice to lead to embarrassment and litigation. Like the Contract Act, it is not, and does not purport to be, an exhaustive measure.

PRELIMINARY. Chapter I contains preliminary provisions, of which the most important are the saving of local usages recognised by the legislature in those pays de coutumes the Panjáb and Oudh (sec. 2, cl. a); the clause (sec. 2, cl. d) leaving Natives under the rule against perpetuity enunciated by the Courts; the definition of 'notice' (sec. 3, cl. c); and the declaration (sec. 4) that the parts of the Act relating to contracts shall be taken as part of the Indian Contract Act, 1872.

TRANSFERS BY ACT OF PARTIES. Chapter II is divided into two parts, one containing rules as to the transfer of all property, whether moveable or immoveable: the other relating solely to immoveable property. After defining 'transfer, it declares (sec. 6) that property of any kind may be transferred, except in the cases there specified', and that every person competent to contract may transfer it (sec. 7). It also declares that a transfer may be made without writing in every case in which a writing is not expressly required by law. Section 8 declares the operation of a transfer of property, and mentions the legal incidents thereof in the cases of land, machinery attached to the earth, a house, an actionable claim, and property yielding

1 The section to some extent follows and (k), as to property which may be the analogy of the Code of Civil Pro- attached, cedure, sec. 266, clauses (e), (g), (h),

Effect of transfer.

to accumu

income. No mention is made of mines and minerals. Except where Mines and the right of Government to them is reserved by the legislature',

minerals, they pass by a grant of the land containing them. But sec. 108 (a) restrains a lessee from opening new mines. Section 9 declares the validity of oral transfers except where the law expressly requires a writing. The general invalidity of conditions absolutely restraining Conditions. alienation is declared by sec. 10. Exceptions are made in the case of lessees and of married women not belonging to the Hindú, Muhammadan, or Buddhist community. Section 11 deals with qualified restrictions repugnant to interests created on a transfer. It corresponds with the Succession Act, sec. 125. Conditions making interests determinable on the transferee's insolvency or attempted alienation are made void by section 12, except in the case of a lessee. Sections 13-17 place restrictions on the power of tying up property Restricby a transaction inter vivos, similar to those imposed by the Suc- tions on cession Act, secs. 100-104, in the case of wills. These restrictions

power to

settle. do not apply to transfers made for the benefit of the public. The Mortmain Act does not apply to India, and nothing of the kind is in force there inter vivos, except, in Oudh, Act I of 1869, secs. 18, 20. The effect of a direction to accumulate income is declared by section Direction 18. It is valid only in respect of the income arising within the year

late. next after the date of the transfer. Vested and contingent interests are dealt with in secs. 19-21; and the effect of creating interests in favour of the members of a class who attain a particular age, or contingent on the happening of a specified uncertain event, or accruing to such of certain persons as survive at some period not specified, is declared by secs. 22–24. The chief rules relating to interests dependent on the fulfilment of a condition, precedent or subsequent, will be found in secs. 25-34.

Where A professes to transfer B's property, and as part of the same Election. transaction confers a benefit on B, B must elect either to confirm, or dissent from, the transfer. This subject is handled by sec. 35, which corresponds with the rules in the Succession Act, secs. 168–177.

The apportionment of rents and other periodical payments on Apportionthe transfer of the interest of the person entitled, and the appor- ment. tionment of the benefit of an obligation relating to property on its severance, are dealt with by secs. 36 and 37.

The remaining sections of this chapter refer only to immoveable property. The Act treats with some particularity of the title which the transferor of such property can confer, and of the protection

See in Bombay, Bom. Act V of 1881, sec. 151: in Burma, Act II of
1879, sec. 69 : in the Panjáh, Act 1876, sec. 8 (6): in Ajmer, Reg. II of
XXXIII of 1871, sec. 29 : in the 1879, sec. 8 (a).
Central Provinces, Act XVIII of

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