Knowledge Series 2020: Transfer of Rights on Land
By SRELJ Bureau
Change in Right Over Land
Rights over land may change due to,
or due to,
Transfer of land.
Land is transferable immovable property. “Transfer of Property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. “Living person” includes a company or association or body of individuals.
Sale of property;
Lease or renting of property;
Mortgage of property;
Gifting property and
Exchange of property.
Restrictions over Transfer of Land
Although the land is part of man’s natural heritage, access to the land is controlled by Government for various social, political and economical reasons. The Government has enacted number of enactments to restrict person’s right over the transfer of the land. The laws which are restricting person’s rights of transfer of the land are as follows:
Maharashtra Land Revenue Code 1966:
One of the objectives of land revenue administration is to recover the revenue. So it is obvious that failure to pay arrears of land revenue makes the holding liable to forfeiture. On forfeiture the occupancy ceases to be property of the occupant under section 72 of MLR Code 1966. The forfeited land shall not change hands by way of inheritance or by will. Under section 36 A, the land of a Tribal cannot be transferred in favour of any non-Tribal without permission of State Government and/or Collector as the case may be.
Bombay Tenancy and Agricultural Lands Act, 1948:
To gain maximum revenue from the land in India the British rulers introduced three major forms of land settlements namely Zamindari, Raiyatwari and Mahalwari. Under the influence of these systems actual cultivators turned into tenants. These land system created intermediary between the State and the actual tillers of the soil. These intermediaries had no interest in improvement of the land. Against this background intermediary interests were abolished by the Government by framing policy “Land to the tillers” In the Maharashtra under section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 provides compulsory transfer of ownership rights of tenanted lands to the tenants from 1st April 1957 which is known as the “Tillers’ Day”. There is complete sale and purchase on the tiller’s day. The title of landlord passes immediately to the tenant on the tiller’s day. The tiller who purchased the land under this act is classified as an Occupant Class II. The land of Occupant Class II is heritable but transfer of land is valid subject to fulfilling conditions imposed by the Government.
No land purchased by tenant under section 32, 32F, [32I, 32 O, 33 C, or 43 ID or sold to any person under section 32 P or 64 shall be transferred by sale, gift, exchange, mortgaged, leased or assignment, without the previous sanctioned of the collector. Sanctioned is not required when land is to be mortgaged in favour of Government.
The collector may grant permission for transfer of land in any of the following circumstances, namely:-
That the land is require for agricultural purpose by industrial or commercial undertaking in connection with any industrial or commercial operations carried on by such undertaking;
That the transfer is for the benefit of any educational or charitable institution;
That the land is required by a co- operative farming society;
That the land is being sold in execution of a decree of a Civil Court or for the recovery of arrears of land revenue under the provision of the code;
That the land is being sold bona fide for any non agricultural purpose;
That the land is being sold by a land owner on the ground that –
i. He is permanently giving up the by profession of an agriculturist, or
ii. He is permanently rendered incapable of cultivating the land personally;
That the land is being gifted in favour of-
i. The bodies or institution mentioned d in section 88A and clauses a & b of section 88B or
ii. A member of land-owners family;
That the land is being exchanged-
i. With the land of equal or nearly equal value owned and cultivated personally by the member of the same family; or
ii. With the land of equal or nearly equal value situate in the same village owned and cultivated personally by another land owner with a view to forming compact block of his holding or with view to having better management of the land:
Provided that ,the total land held and cultivated personally by any of the parties to the exchange whether as a owner or tenant or partly as does not exceed the area as a result of exchange;
That the land is being leased by a land owner who is a minor; or a widow or person subject to any physical or mental disability or the member of the armed forces or among the land owners holding the land jointly;
That the land is being portioned among the heirs or survivors of the deceased land owner;
That the land is being mortgaged in favour of society registered or deem to be registered under the Maharashtra Co-op Societies Act 1960 for raising a loan for paying the purchase price of such land.
That the land is being transferred to the person who by reason of acquisition of his land for any development project has been displaced and requires to be resettled.
Where sanctioned for sale of land given in the circumstances specified in the clauses a, b, c, e, or f it shall be subject to the condition of the land owner paying to the State Government a nazrana equal to 40 times assessment of the land.
In the case of portioned sanctioned under clause “j” it shall be subjected to the condition that the are allotted to each sharer shall not be less than the unit specified by the State Government under clause c of sub section I of sub-section 27
Transfer to non agriculturist barred under Section 63
No sale, gifts, exchange or lease of any land shall be valid in favour of person who is not an agriculturist. However collector may grant permission for transfer under the below mentioned conditions:
a) Such a person bona fide requires the land for a non agricultural purposes; or
b) The land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution; or
c) Such land being mortgaged, mortgage has obtained from collector a certificate that he intends to take the profession of an agriculturist and agrees to cultivate the land personally; or
d) The land is required by co-op society; or
e) The land is required for cultivating it by a personally by a person, who, not being an agriculturist, intends to take to the profession of agriculture and to whom collector has given certificate that such person is intend to take to the profession of agriculture and is capable of cultivating land personally; or
f) Such land is being sold in execution of decree of a civil court, or recovering arrear of land revenue.
Transfer to non agriculturist for bona-fide industrial use:
No permission is required to sell the land to the person who may or may not be an agriculturist for the purpose of bona-fide industrial use if the land situates within the industrial zone of a draft plan or final regional plan or draft of final town planning scheme prepared under the MRTP Act 1966 and the area where no such plans or scheme exists.
The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947:
Under this act government is empowered to declare the area as a “local area” for determine minimum size of any class of land that can be cultivated profitably as a separate plot. The size of the land so determined is called standard area. Fragments means plot of agricultural land of less extent than the appropriate standard area determined for the local area.
Under section 7:
“Fragment” is not allowed to transfer except to the owner of a contiguous survey number or recognized sub-division of survey numbers. Also no land shall be transferred so as to create “fragment”.
Under section 8:
No land in local area shall be transferred or partitioned so as to create fragment.
Under section 27:
There is ban on transfer of land, execution of awards and decrees during the continuance of the consolidation of holdings.
Under section 31:
There are restrictions on alienation and sub division of consolidated holdings.
Maharashtra Agricultural land s Ceiling on Holding Act, 1961
The basic objective of fixation of ceiling on landholdings is to acquire land above a certain level from the present landholders for its distribution among the landless. It is primarily a redistributive measure based on the principle of socio-economic justice.
This act is restricting the size of holdings which a person or family can own. Acquisition of land in excess of the ceiling is prohibited. Land rendered surplus to the ceiling is taken over by the state and distributed among the weaker sections of the community.
Any person or family cannot hold land in excess of ceiling area fixed on 26th September1961. Person or family can not transfer surplus land until the land in excess of the ceiling area is determined under the act.(Section 8 ) A person possessing land in excess of ceiling area can not acquire land by transfer. (Section 9)
The land held by individual or the family of the Maharashtra State or the part of India is to be taken into consideration while calculating the ceiling area.
For fixing ceiling areas lands have been classified in five classes as detailed below
Class Of Land
Land with assured supply of water for irrigation and capable of yielding at least two crops in a year
Land which has assured supply of water for only one crop.
Land which has un-assured supply of water for only one crop.
Dry Land situated in Mumbai Sub Urban District and Districts of Thana, Raigad, Ratanagiri, Sindhdurg, Bhandara, Gadchiroli, Sironcha talukas of Chandrapur District which is under paddy cultivation for continuous period of three years.
Dry Crop Lands other than all above lands.
The Maharashtra Co-op Act, 1960
While taking loan from co-operative society member is furnishing undertaking to the society that he is mortgaging his own agricultural land against the said loan amount. Under section 48, a charge on land continues until the whole debt, due to the society is satisfied.
Transfer of Property Act, 1882
Section 52 of the Transfer of Property Act provides that during the pendency of any litigation affecting the immovable property it can not be transferred or otherwise dealt with by any party to the suit so as to affect the rights of the other party under any decree or order which may be made therein.
Registration Act, 1908
Section 17 of the Registration Act, 1908 lays down different categories of documents for which registration is compulsory. The documents relating to the following transactions of immovable properties are required to be compulsorily registered; Instruments of gift of *immovable property
Lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent.
Instruments which create or extinguish any right or title to or in an immovable property of a value of more than one hundred rupees.
“Immovable property includes: “Land, buildings, hereditary allowances, rights to ways, lights, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to any thing which is attached to the earth, but not standing timber, growing crops nor grass.”
Under section 49 of the above act, if the registration of the above transactions are not made the transactions are to be treated as a null and void.
Wakf is a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognized by Muslim Law. No transfer of immovable of a wakf , by way of sale or mortgage, exchange or lease for period of exceeding three years is validly allowed without previous sanctioned of the Wakf Board.
These lands attract the provisions of the charitable Trust Acts. The trusties are competent to dispose of the trust property exercising the powers vested in them by the Trust Deed.