Laws relating to Transfer of Immovable Property
a) The Transfer of Property Act (TP Act), 1882 does not recognize the concept of ownership rights in a portion of a multi-storeyed building whether residential or commercial. Consequently, it is difficult for a person owning such property to raise a loan against the security of such property. In some States like Maharashtra, the structure of co-operative societies is being used for joint ownership of land and common amenities provided in a multi-storeyed building along with individual ownership rights in the apartments. In addition to this structure, Apartment Ownership Acts have been enacted in some States for the purpose of clearly defining rights in apartments but there is a need for uniform Central Law in this respect, for the purpose of recognizing ownership rights in a portion of a building/structure constructed on land, whether used for residential, commercial or industrial purpose.
b) Section 69 of the TP Act provides for enforcement of the mortgage without the intervention of the Courts by an English mortgagee. This provision does not apply to a Hindu, Mohammedan or a Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government in the Official Gazette.
c) The TP Act provides for a mortgage by deposit of title deeds without recording any writing and without any requirement of registration. But such mortgage can be created only at Presidency Towns of Kolkata, Chennai and Mumbai and such other towns as may be notified by the State Governments.
d) There is no clear provision in regard to treatment of machineries embedded in land as immovable or movable property.
e) The TP Act contains provisions relating to transfer of actionable claims. The definition of actionable claim in section 3 does not include a receivable which is secured by any security of pledge, hypothecation or mortgage. As a result, there is no specific statutory provision for transfer of a receivable which is secured by any security. Further, there is no clear provision for transfer of future receivables.
