DIP NARAIN SINGH Vs. NAGESHAR PRASAD

JUDGEMENT

(1.) The principal question of law which arises in this appeal is as to the legal effect of including non-transferable occupancy lands along with other properties, which are transferable, in a registered mortgage deed.

(2.) There can be no doubt that there is a clear distinction between a contract which still remains to be performed and specific performance of which may be sought, and a conveyance by which title to property has actually passed. Cases of mere contract are governed by the provisions of the Contract Act. Cases of transfer of immovable property are governed by the Transfer of Property Act. A mere contract to mortgage or sale would not amount to an actual transfer of any interest in the immovable property (S. 54, T.P. Act), but a deed of sale or mortgage, if duly registered, would operate as a conveyance of such interest. Once a document transferring immovable property has been registered the transaction passes out of the domain of a mere contract into one of a conveyance. Such a completed transaction would be governed by the provisions of the Transfer of Property Act, and only so much of the Contract Act as are applicable thereto.

(3.) It is significant that the whole of the Contract Act has not been made applicable to transfer of immovable properties. Section 4, T.P. Act, merely makes certain provisions of the Transfer of Property Act, relating to contracts as part of the Contract Act and not vice versa.