 Good evening, friends, and when we have Mr. D. R. Sudarshan, who's a former retired district and session judge. The sessions, we all know that on the YouTube do extremely well. And in fact, I shared some of the comments which we had received on the YouTube, sir, that people wanted to understand the basics of the Transfer of Property Act. The first part is already available on the YouTube. And we are with the second part to understand the basics and concepts of Transfer of Property Act. This is part two. Those who have missed it can always log in to the YouTube channel of Beyond Law, COC, and they can watch the same. And we are obliged to answer Sudarshan, sir, who explains the things in such a subtle manner that it can be understood not only by the lawyers, the legal fraternity and people at large. Being a Sunday, I will not take much time and I will not detain myself for this session much. And I request, sir, to share his knowledge over to you, sir. Thank you. Thank you very much, Mr. Vikas Chaturth, sir. Good evening to all. Welcome you all to this continued session on the topic of Transfer of Property Act, Some Basics. This is the continuation of the lecture delivered about a month ago on this platform. At the cost of repetition, I say that my lecture or discussion is aiming towards young advocates and newly recruited judicial officers if any. I am neither an expert nor a master on the subject. I am also a student of law learning even to this day. In the last session, I made an attempt to explain what is a procedural law and what is substantive law. And I have also emphasized that for an advocate who want to practice on the civil side and for a judicial officer presiding over a civil court, a thorough knowledge of substantive law and procedural law is absolutely essential. In the last session, I commenced the discussion on the Transfer of Property Act. I explained as to how important the act is, the scope of it and also the object of it. We started with some definitions in section 3 and completed only a few. It is a general impression that the Transfer of Property Act is applicable only for immobile properties. That is not correct. From section 5 to section 37, the provisions are applicable both for immobile as well as for immobile. From section 38 to section 53A, they are applicable only for immobile properties. And rest of the provisions, as all of us know, deals with the transactions relating to immobile property only like sale, mortgage, lease, exchange, gift, etc. So in this note, I would like to commence my discussion on the today's continuation of the topic. The next definition which I wanted to concentrate upon is with regard to the word instrument. In fact, I have emphasized in the last session itself as to why we should read the definition clause in any enactment before going to a relevant section. The reading of the preamble and definitions are very much important for two reasons. The preamble explains you the scope, object and the purpose for which the particular act has been enacted. And also it will also say the method or the mode in which the object is sought to be achieved. So far as the definition clauses are concerned, the words and phrases which are used in that particular enactment might have been defined in the definition clause of the section. So whenever such word or phrase appears in any of the section, the same meaning as it is given in the definition clause should be applied and no other meaning. This is the purpose as to why I am concentrating on the basics of the definition. The second one is the understanding of the definitions of the transfer of property act is very much necessary for the better understanding of the remaining provisions of this transfer of property act. Last time we have defined what is an immobile property, etc. Today I am commencing the talk with the definition of the word instrument. What do you mean by an instrument? There is only one single line definition in the immobile property act, sorry transfer of property act. That is instrument means a non-testamentary instrument. Testamentary instrument means an instrument written by a living person expressing his intention as to how his property should go and to whom after his death that is testamentary, non-testamentary or other type of transactions. Though there is only one line definition, the definition assumes a lot of importance because the same word has got a different meaning under a different enactment. For example, if you go to Indian Stamp Act, the word definition instrument has been defined to mean in section 2, subsection 14 as instrument includes A, every document by which any right or liability is or purpose to be created, transferred, limited, extended, extinguished or recorded. B, a document electronic or otherwise created for a transaction in a stock exchange, depository by which or depository by which any right or liability is or purpose to be created, transferred, limited, extended, extinguished or recorded. C, any other document mentioned in schedule 1. This is a very long definition that you find for the same word instrument in Indian Stamp Act. But whereas in the Transfer of Property Act, the definition is very, very simple. Instrument here means a non-testamentary instrument. So an instrument can be defined as a legal document. Instrument can be defined as a legal document through which a property is transferred. Property is transferred. I am emphasizing the word transferred. So it is a non-testamentary document under the Transfer of Property Act. Thereby, the Transfer of Property Act specifically excludes testamentary disposition that is will. This is one important aspect that has to be kept in mind when we are reading into the definition of the word instrument. So far as the Transfer of Property Act is concerned, the definition of the word instrument will have to be understood in terms of a sale date or a sale agreement, lease, mortgage, gift, etc., exchange, etc. So therefore, it is within this limited meaning that we have to take the meaning of the word instrument as found in Section 3 of the Transfer of Property Act. The next definition is attested. This is a very, very important word to be understood for various reasons. Why? I tell you later. Let us see what the definition first says for the word attested. Attested means in relation to an instrument, attested means and shall be deemed always to have meant. That word requires emphasis and shall be deemed always to have meant. Attested by two or more witnesses, each of whom has seen the executant sign or affixes mark to the instrument number one or has seen some other person sign the instrument in the presence of and by the direction of the executant. Number two. Number three or has received from the executant personal acknowledgement of his signature or mark or thumb impression of other person and each of whom has signed the instrument in the presence of the executant. So if you decipher this definition of the word attested, you would come to know that attestation could be that the different document is said to have been attested when any one of the three conditions, three requirements mentioned in this definition is formed. Number one, two or more witnesses, each of them must have personally seen the executant signing the document. So the person who executes the document must first sign the document and that person that act of signing the document must have been seen by two or more witnesses. So after seeing the executant signing and satisfying that the executant has signed, they will also sign put the signature on the document and that is called as attestation. This is first requirement. So the witnesses who want to attest the document must have seen the attestor or sorry the executant signing the document. This is first requirement. Or if it is not there or has seen some other person signing the document in the presence of or under the direction of an executant. If I want to sign the document as an attestor, I must have seen the other person signing the document as an attestor on the direction of the executant and in the presence or in the presence of the executant. So that is second, second alternate that is second up in this thing. Third one or has received from the executant personal acknowledgement of his signature or mark. The executant would say I have signed this document. I have executed this document and this is my signature. You please attest the document. So when the attestor in the executant himself personally tells to a person acknowledging his signature on the document as an executant and having obtained having got such acknowledgement. If a person signs that particular document, he can also be called as an attestor. So the definition of the attestor is very, very important for various reasons I told already. Why? Because under law, three documents require three types of documents require attestation. They are the gift, gift, gift, gift under section 122, 23, mortgage and a bond and also every law course. These documents require attestation. So to say that a particular document has been attested. It is the duty of the person who wants to prove that the document has been validly attested to show the existence of any one of the three requirements which I have just now explained as a part of the definition of the word attested. So the reading of the definition of the word attested shows that when the transaction relating to the transfer of an immobile property is reduced into writing, it becomes an instrument of transfer and the executant must have signed the document before the attestors sign. Such an instrument of transfer should be affirmed by at least two witnesses. So the purpose of obtaining the signature of the attestors is to affirm the transaction that the executant and the executant alone has signed the document and nobody else. When the law requires how an attestation has to be done and if the document has been attested in the manner required under the definition, then it proves, if it is proved that it has been properly attested, then it establishes a fact that the document was executed by the executant and executant alone and nobody else. So the object of attestation can be classified, can be kept, can be kept. There are two objects of attestation. Number one, it confirms that executant has executed the document and no one else. This is the first, I mean, object of getting the document attested. Number two, it also confirms that the executant has executed the document which is a free consent and that there was no force and new influence are brought. So when the law requires that the document has to be attested and when attestation has to be proved, any one of the requirements as found in the definition of the word attested must be there. So once that the requirement is satisfied, then it can be stated that the document has been attested. So once it is attested as required in the law, it proves the authenticity of the document. Number one and number two, it shows that the executant has signed the document out of his free will and volition and there was no force and he has done it with full consent. These are the two important objects which the attestation meets. Thus in all the purpose, the attesting witness do not confirm that they have knowledge of the contents of the document. The attesting witnesses have nothing to do with the contents of the document. Attesting witnesses will only come and say that I have seen the executant signing the document and it is only after the executant signing the document I have signed it. Or the attestor would come and say that the executant has told me that he has signed the document and he has shown the document and also his signature on getting personal acknowledgement I have signed it. Or I have seen some other person signing that particular document as a witness in the presence of and on the direction of the executant. So I am seeing that. I am also satisfied that the document was executed by the executant alone and I also signed it as an attestor. So only these three things, any one of these three things can be approved and attestors cannot cannot be called upon to say or to have knowledge of the contents of the document. Then the question is who can attest? The law is well settled that any person who is a major and who is of a sound mind and who is not otherwise disabled can legally disabled can attest the document. In a decision reporting year 1969 Supreme Court page 1738 it has been said that the scribe of the document or sometimes even the sub-register if it is shown that they have acted in dual capacity can also become the attestors. I told already that there are certain documents which require attestation compulsorily. For example, gift requires attestation as contemplated under section 123 of the transfer of property act. Margage also requires attestation as contemplated under section 59 of the transfer of property act. Then a bond. A bond also requires to be attested as contemplated under section 2 subsection 5 of the Indian Stamp Act of 1899. Apart from this, the document will also requires attestation as contemplated under section 63 of the Indian Succession Act. Section 57 58 and section 63 of the Indian Succession Act deals with the law relating to bills. So this is so far as the definition of the word attest is concerned. Next definition is the word registered as found in section 3 of the transfer of property act. The transfer of property act defines the word registered as registered in any part of the territories to which this act extends and the law for the time being enforced regulating the registration of the documents. So the definition of the word registered as mentioned in the transfer of property act says that a document which requires to be registered in any part of the territories to which this act applies under the law for the time being enforced. We all know that in India we have registration act of 1908 which is the law of enforce for the time being. So a document requires to be registered in accordance with the provisions of the act. So thus registration is a process. Registration is a process through which the document is officially recorded. There will be an official record. There will be an official record officially recorded in accordance with the provisions of the registration act of 1908. When a document is registered it becomes an important and valuable evidence of the statements made there. So when a document is registered that registered document is considered to be a valuable document in so far as the recitals which are found in the document is concerned. Under the transfer of property act a gift of an immobile property of any value and transfer of any other immobile property which is worth more than 100 rupees requires compulsory registration. So if the document is not a document which requires compulsory registration if it is not required if it is not registered then it cannot be said that there is a valid transfer. A transfer cannot be said to be valid if a document is not registered which is compulsorily registerable. So this takes us to know about the provisions of section 17 and 18 of the registration act. So if you want to understand the meaning of the word registered as found in section 3 of the transfer of property act properly you have to go to section 17 and 18 of the registration act. Section 17 says the documents which require compulsory registration. So in the list that is mentioned in that particular section whatever the document of the nature of the document that is mentioned all those documents will become valid only when they are registered in accordance with the provisions of the registered act. Section 18 of the registration act says that the registration is the documents in respect of which the registration is optional. They don't say it is not compulsory they don't say that the registration is not required they say registration is optional. In addition to these three sections it is also necessary that we should know the provisions of section 49 of the registration act which says that how to act upon a document which requires compulsory registration and if not register what are the circumstances under which such document I am sorry what are the what is the purpose for which such document can be utilized. So since I am only confining myself only to the definition part I don't want to discuss in detail with reference to those sections I only say that these are the relevant sections which are to be read along with this particular section. So if you want to understand the definition of the word registered as provided in the transfer of property act it is necessary for us to know the sailing futures and the provisions of the registration act also and more particularly section 17, section 18 and section 49 of the registration act. Just for a minute I would like to go back to the word attested. In addition to the provisions of what I have written about whatever what I told about section 59 of the transfer of property act in respect of mortgages section 123 in respect of a gift and section 2 subsection 15 of the Indian stamp act in respect of a bond and also will section 73 of the Indian succession act in respect of a will. It is also necessary for us to go through the provisions of section 68 of the evidence act because section 68 of the evidence act says as to how to prove a document which requires attestation that particular section says that no document which requires attestation shall be received in evidence unless at least one attesting witness is examined. So if you want to lead the evidence of an attesting witness you must know who the attestor is you must know what the what do you what do we mean by attestation. So the definition of the word attested as found in the transfer of the transfer of property act should be clearly understood before we want to lead evidence before the court of law by putting an attestor into the witness box in order to prove a document which requires attestation. So the thorough knowledge of these provisions that is definition of the word attested section 63 of the Indian section 59 and 57 58 59 and section 63 of the transfer of property sorry Indian succession act section 54 section 129 of the transfer of property act and section 2 subsection 15 of the Indian stamp act we may not be in a position to discharge your part of duty properly. Therefore a thorough knowledge of all these provisions are required in order to understand what do we mean by attestation and who the attestor is and which are the documents which require to be attested and how an attested document will have to be proved. The next definition is actionable claim what do you mean by an actionable claim actionable claim has been defined in the transfer of property act as follows actionable claim means a claim to any debt so there should be a debt other than a debt secured by mortgage of an immobile property or by hypothesization of pledge of a movable property to any beneficial interest in any movable property not in possession of either actual not in possession either actual or constructive of the climate which the civil courts recognize as upholding grounds for the relief whether such such debt or beneficial interest be existing according to condition according accordingly the conditional or contingent. So from the reading of this section from the reading of this definition what we can make out is a debt should be an unsecured debt what do you mean by an unsecured debt unsecured debt means a debt for which there is no security in the form of a movable property or an immobile property offered in case of an immobile property we may mortgage a loan taken on the security of immobile property can become a mortgage deed so a security is offered that becomes a secure debt and in case of a movable property property can be hypothecated property can be pledged but whereas in case of a optionable claim neither there is a hypothecation or pledge nor there is a mortgage so it is an unsecured debt property can be classified into two categories one is the tangible property another one is an intangible property a tangible property is one which is really existing which you can see which you can touch which you can feel but an intangible property is one which you cannot see which you cannot touch which you cannot feel for example all the properties which we can see by eyes maybe the chair a table a land or a building or whatever it is all are called as tangible properties and they are the properties which can be which is not tangible or your right to claim salary your right to claim wages or any the remuneration on a radium or whatever it is rights compensation for damage cost to the patent right etc as the intellectual property all those things are called as intangible rights or intangible property there is an example also given in illustration if a has a right to recover rupees 10 000 from b it is an intangible right because that right cannot be seen touched or felt it is only a thing that can be exercised so therefore it is an intangible right you cannot see it as it has no physical existence one can come to know only when that right becomes actionable and it is enforced a debt could be under the actionable claim I told already that there should be a debt what type of debt it is debt could be either existent or accruing what do you mean by existing existing existing debt existing debt means the debt which is already accrued and payable it is due what is already due is existing debt accruing debt means the debt has accrued but it is payable on a future day and not today for example a being a husband has to pay monthly 500 rupees to his wife on fifth of every month so it is a right which is accrued and it is payable only after fifth so today it has been accrued but it is payable only on the fifth of next month so that is called as an accruing debt so an existing debt accruing debt which is not secured secured by any either immobile property or by any hypothetical or pledge in a decision reported in a year 1986 supreme court page 63 the concept of actionable claim has been explained as under quote the dictionary meaning of word actionable client is that for which the action will lie furnishing legal grounds for an action section three of the transfer of property act recognizes two types of clients a client to an unsecured debt a client to a beneficial interest in the mobile property if the beneficial interest in the mobile property is not in position on the climate it will be an actionable claim but if it is in the position of the position and enjoyment of the climate himself it is not the actionable claim for that an illustration has been given if a has agreed to sold 50 bags of wheat to be if a has agreed to sell 50 bags of wheat to be and he said 50 bags are in the godown of gay not in his physical position or with him it is in the godown of gay then we has an actionable claim against a because that 50 bags of paddy or wheat is not with the climate so this is one thing a claim to beneficial interest in the mobile property will have to be understood the next important definition is with regard to the word notice this is very very important from for various reasons because we come across issuance of notice they come across the concept of actual notice constructive notice and all that how to how to understand these concepts is that which we are going to discuss under this definition section three of the transfer of property act defines notice as quote a person is said to have notice of effect when he actually knows the fact so direct knowledge direct knowledge of a particular fact is noticed then a person is said to be having a notice of that or when but for willful abstention from an inquiry or search which he ought to have made or gross negligence he would have noted noted if at all I have exercised a due care and diligence and made proper search I would have come to know of a particular fact but if I willfully abstain willful abstention if I willfully abstain from making such search or making such inquiry and then claim that I have no notice of that and I have no knowledge of that cannot be accepted under law because a man is required to act bona fide in all circumstances for example if I want to buy a particular property a mobile property I should know what are all the documents that are to that are to be searched I should know first of all where the property is situated and whether the property really exists or not number one number two whether the person who wants to sell the property to me has got a title deed in his favor number three how my seller got the property what is the motherly whether the property has been encumbered in any way whether there is a mortgage or whether it has been deposited in the bank for the purpose of taking loan so whether there is any any sort of incumbrance whether the taxes have been paid regularly until they till today these are all the things which I am expected to make as a bona fide purchase if I want to become a bona fide purchase I have to make all these essential searches if I can I can get to know about all these things most of the things by referring to the registers maintained in the service to our office which is available for public inspection and I can also obtain the certified copies of the documents from the authenticated certified copies of the documents certified by the competent authority from the sub registrar service but if I willfully fail to do it no if I will if I fail to do it it is called as a willful abstention I have abstained myself voluntarily so when I have been when I have got to make some search to know the title to the property if I fail to do it then I cannot say I cannot say no I did not know about that I did not know about this if I want to say so then the question is did you make a search if I say no then I cannot then there is there is a willful abstention on my part then the court will say though you could have made a proper search though by making a proper search though you could have you could have come to know of the existence or non-existence of a particular fact since you have not made a search it is presumed that you have got the notice of those things so the definition of the word notice will have to be understood in this context once again let us go back to the definition a person is said to have notice of a fact when he actually knows the fact so there is a direct notice I receive I receive a lawyer's notice I get to know certain things certain facts of the lawyer's notice so that is a direct notice or X claims that he is the owner of the property and he is in position I see that X is residing in that house that is a direct notice but if Y is residing there instead of X then it is my duty to ascertain as to Y is residing instead why Y is residing instead of X if I fail to do it then I will be failing in my duty in making a proper search so the first one is direct notice or second is important or when but for willful abstention I have willfully abstained from an inquiry from making an inquiry or making a search which I ought to have made that is very important I ought to have made or gross negligence what is gross negligence we will see later or gross negligence all these things will attribute to the fact that a person has a notice has a notice but he because of his willful abstention or gross negligence he and because he did to make proper search or proper inquiry had he made the proper search and inquiry he would have certainly come to know of that particular existence of a particular fact or non-existence of a particular fact the notice could be either actual or constrictive actual notice means knowing thing knowing a thing actually knowing a thing actually and not based on vague rumors you can't believe in a rumor if I were to say Y is the owner of the property no you can't believe on what Y says you have to make actual finding of the fact to ascertain yourself whether X is the owner of the property or not so knowing a thing actually and not based on vague rumors is called as an actual notice this is what is observed in the decision of the honorable High Court of Karnataka reported in 2008 part 5 Karnataka journal page 260 Dr. N. Kashyanath verse says when there is a direct or express knowledge or information about something it is called as an actual notice a direct information the information should come from the horse's mouth that is called as a direct information not somebody telling something and we believing that thing direct notice or direct information or express knowledge or information about something it is called as an actual notice that is to say whether a person has a no actual notice of a particular fact or not itself has to be proved that will be the subject matter of an issue whether I had a particular notice or not itself when when I had a particular notice of a particular fact or not itself is a question that will have to be proved then constructive notice constructive notice is information or knowledge of a fact imputed by law not imputed by any other person imputed by law to a person although he may not actually have it I may not be having the actual knowledge of it but the law imputes the law says that you have got knowledge because of various reason I will come to that because he could not have discovered the fact by proper intelligence I sent a registered I sent a notice by registered post acknowledgement to you to a person that notice is properly addressed duly stamped and dispatched I have acknowledgement with me to show that I have dispatched the top LED cover and I am in position of the receipt issued by the postal department that notice has written answered or refused now the other party cannot say that he has no notice of a he has no knowledge of the notice by refusing to register the register for notice sent by register post there is a willful abstention on his part had he received the notice and gone through the contents of the notice he would have come to know the contents of it having willfully abstained himself from evading to receive the notice or refusing to receive the notice the law says imputes knowledge the law says you have the knowledge of the notice this is what is meaning what is the meaning of seeing that constructive notice is information or knowledge of a fact imputed by law supposing a person will take a contention no no that that particular I was deciding in that address that I that letter never came to me but the letter has written answered with the shara that not moved in the address or not in the address so if the address is proved to be correct and the letter is showed to have been posted dispatched then the law says you have the knowledge of the notice this is the meaning of constructive notice I want to buy a property from x a house property and that house property is not in possession of x it is in possession of y then the law requires or a common sense requires that I should inquire who is that why and in what capacity he is whether he is in possession as a mortgagee or he is in possession as a licensee or he is in possession of a let's say or he is in permissive possession whatever may be it is my duty to because owner is not there somebody else is there so it is my duty to find out as to who that political he is and in what capacity is in position this is a sheer common sense and if I don't do it and tomorrow if that person who is in position comes before the court claiming a different title or interest whatever it is I cannot claim ignorance because it was my duty to make proper search or inquire to find out who that person was why he was there and in what capacity he is there having faith to do it the law says that you have a constructive notice so a constructive notice is an information or knowledge of a fact imputed by law of course all these things are question of fact all these things are question of fact in the sense they should come out in the evidence itself the doctrine of constructive notice is based on equity where a person actually does not know anything about the fact but under the circumstances the court treats that he must have had the knowledge of the fact this is called as a constructive notice in this context you can take two citations one is AIR 2008 NOC 2774 2774 BINNE means Labour Welfare House Building Cooperative Society that says DR Muratrinjaya Arathya in this decision it is observed entry is made in the registrar in the registrars of the sub registrar's office or or the documents which give constructive notice if you go to section 51 of the Registration Act though it is out of context I am just telling you about this there will be five books maintained in the sub registrar's office book number one registered of non-testamentary documents relating to immovable property maybe sale, mortgage or registered lease dates gift exchange all these are non-testamentary dispositions the documents so for that one register will be there number two record of reasons for refusal to register sometimes the registrar will refuse to register for various reasons as provided under the act so why it has been registered a separate register is maintained where there will be any people that affect third one a register of bills and authorities to adopt and fourth one miscellaneous register this comes in part A in part B register of deposit of bills you know that they will need not we will need not be registered it could be unregistered also but maybe deposited even if it is registered and for that there will be a separate register called as register of deposit of bills so when these registrars are maintained in a public office sub registrars office in accordance with the provisions of the registration act 1908 and by that enactment it is known to the whole world as to which document is available by referring to which register if I fail to verify that particular register and then claim ignorance of it law will not come to my protection law will say you could have come to know of that have you made a if you have if you really have made certain the search or inquiry having failed to do it you cannot now claim ignorance therefore it is deemed that you have a constructive noise there is one more judgment of the Honorable High Court of Karnataka reported in 2008 volume 5 Karnataka law journal page 26 constructive notice is even heard only there a person has means of knowing a fact but has whom he take to know there is a means of knowing a fact but what we take to know what do you mean by this if I want to buy a particular property it is my duty to verify whether that property is free from all incomprehensives whether that property whether the seller can actually convey the entire title right title and interest in respect to the property to me it is my duty to verify and one of the documents which can be verified is the encumbrance certificate so if I fail to obtain the encumbrance certificate the certified copy of the encumbrance certificate from the sub registrar's office from the from the concerned authority I cannot claim later to say that I did not know that the property was encumbered to somebody else all the way back so there is a means to know but I fail to follow that means to a certain time so if I fail to do it then it is deemed that I have a constructive notice so a constructive notice is inferred where a person has means of knowing a fact but has vomited to do it the constructive notice is imputed or imposed on a person under a legal presumption a presumption means drawing an inference presumption can be defined as drawing an inference from the facts which are known or facts which are approved so there must be certain known facts from known facts the presumption can be drawn or certain facts may be proved on the basis of that proof the presumption can be drawn for example I produce the copy of the notice I produce before the court the copy of the notice sent I produce before the court the postal receipt I also produce before the court the written written and delivered registrar's letter and if I am able to prove it that the person to whom I have sent notice is was residing in the same address on that particular point of time date and time then it can be inferred that the other party has willfully awaited to receive the notice so therefore a willful abstention on his part in not knowing what that notice is why for it is said who has sent it so the court will say inference can be drawn about the knowledge of that particular notice by the person who has evaded or who has refused to receive what do you mean by a willful abstention willful abstention from an inquiry means that the person is deliberately avoiding to take notice of the fact deliberately avoiding to take notice of the fact which is reason which a reasonable man would have taken in normal course of life I told you already when I want to purchase a house belonging to x and if x is the owner of the property he should have been in possession if y is there in possession as a reasonable man or a man of ordinary prudence it is my duty to find out as to why y is in possession instead of x or I should at least make an inquiry with x as to why the other fellow is in possession who is not the owner why in what capacity he is so if I fail to do it it is deeply that I have a notice of the person who is in who is present in that particular property I cannot tomorrow I cannot say that I did not know that why was in possession of the property there are few more illustrations given in the book on the transfer of property act by professor R K Sinha the first illustration is as I have already told you a registered letter was sent by landlord a to his tenant b b refuses to take delivery of the letter b has a constructive notice of the contents of the letter because he has willfully abstained from knowing its contents so notice was sent to my tenant my tenant refused to receive it now the law says law says that your tenant has a knowledge of the contents of the notice because he has willfully abstained to know the contents of it by receiving that particular letter b a contract to sell his house to be the house in housey house is on rent and b knows that tenants have been paying rents to see b has a constructive notice of right of c to connect rents from tenants illustration 3 a senses house to be the sale did mention that the house had fallen in a share of the partition the partition did have reserved the right of preemption this is a very beautiful example what happens let us say that a and b are the brothers they divide the properties and by by by by entering into a partition did in the partition did there is a right of preemption that is if any of if any one of these two persons wants to send away their share then the preference should be given to the other person before selling it to a third person this is called as a right of preemption that is right to purchase first that is called as right of preemption now a a buys the property from b sorry a a buys the property from b which a knew that we got under a partition did but he will not look into the partition did at all had he looking to the partition did he would have come to know that there is a there is a clause where there is a right of preemption is mentioned in that event he would not have gone for purchase so had a reason as a reasonable man he was expected to look into the partition did because the partition did is the source of title title of the prospective seller but he failed to look into the partition did the law says because of your failure you cannot now claim ignorance of the preemption right of preemption it was your duty you could have gone through that partition did to find out the existence of the preemption right before purchasing the property so this is called as a constructive notice so these are some of the examples of constructive notice then come to the gross negligence negligence can be defined as doing something which is not expected to do doing something which is not which one is not expected to do or not doing something which one is expected to do this can be simply defined as negligence gross negligence means carelessness carelessness it is the omission to do what is expected to be done in the normal circumstances which regulates the human conduct or human affairs it depends upon the facts and circumstances of each case in all the books you find one celebrated case which is discussed that is Lord's bank case this is a beautiful case which tells about gross negligence in this case what happened was he has obtained loan from a bank say ex-bank by depositing the title deeds so mortgage by deposit of title deeds he has obtained this because this particular issue is a very very old decision by obtaining he obtained loan by depositing by creating a deposit deposit of title deeds mortgage by deposit of title deeds after sometime he approaches the ex-bank his banker and says that I want to celebrate this property and there is a person who has come forward to purchase the property he wanted to see the title dates will you kindly return the title deeds to me for a temporary period so that I can make them available to him for a scrutiny and no sooner the scrutiny work is done I will return it to you bank believed the word of the customers of the customer game and handed over all the title deeds to him this customer game did not do what he said instead he go to some other bank why deposited the very same documents of title and obtained another loan and he did not return the title dates to bank X then the question arose whether in a before record whether the player loan given by ex-bank was to be secured first because both are secured loans was to be secured first or second loan given by another bank was to be secured first this was the question the court head the first bank that is ex-bank cannot secure the loan first because the bank manager who has handed over the title dates as a man of ordinary prudence could have thought that it was not proper to hand over the documents of title to the customer and he could also have visualized that in the documents of title or return it may be misused to the detriment of the bank therefore the banker having failed to discharge his duty and acted without care and attention has acted grossly in an negligent manner therefore it was held that first bank X cannot secure the loan first and take it's only the bank in whose possession the document of title title is at present can only treat it as a secure loan and not expand so this is one best example which can be taken for the purpose of understanding whether there was a gross negligence or not Lloyd's bank versus P.F. Guzdar and company G deposited title dates of his property with the bank N to secure loan thus there was a mortgage by deposit of title dates the only security for the repayment of loan is the title dates deposited with the bank after some time G approached the bank N and requested to hand over the title dates as he wanted to show it to an intended purchaser and that he would return them after showing the same the bank relying on what G said handed over the title dates to G but G but G took loan from another bank by depositing the same title dates the question which arose was whether the prior loan given by N bank N was to be secured first or second loan given by another bank which was to be secured with which the possession of title dates the answer is held since this was a mortgage by deposit of title dates in which the only security which is the only security for the repayment of the loan is the possession of title dates bank N committed a gross negligence in parting with the title dates N cannot be allowed that is bank N first bank cannot be allowed to plead that it had no notice of that G would deposit them with another bank so the first bank can manage first bank manager cannot come and say sir I believe that the title dates will be shown to the intended purchaser and then return to me I never expected that my customer will go to some other bank and deposit the title dates and take another loan it was it was it was natural for him to expect he should have expected it as a reasonable man so having not done it he acted grossly in a negligent manner in a gross negligent manner so this is one important citation which can be given to consider what do you mean by gross negligence so I think with this we have come to the end of the definition class hello yes sir should we stop at this or what 7 10 we have few questions we can take those questions so far a lecture is concerned we can stop no so if you feel you have to add something or you can do that that's not an issue because you said one hour no it's fine but if you want want to explain or we can do it in part 3 as you I would like to stop at this I would like to stop so that we have come to a particular particular chapter is closed pardon I just couldn't get it one chapter is closed now yes sir yes so I will stop at this right sir so thank you very much thank you very much for giving me a very patient listening and next we will take a chapter 2 that is section 5 onwards yes right any question yes sir so Deepuma says it is necessary that the testing witnesses attest the instrument at a time together or whether a subsequent to one's attestation another person attest is that valid yes yes it is not necessary that both the testing witnesses should sign simultaneously I have already explained the three circumstances under which an attestor could sign number one both the attesting witness on seeing that the executant has signed the document can subscribe their signatures that is the first situation second situation the executant coming and telling to one of the attestor stating that such as I have signed the document and such and such a person has already signed you please sign the document so he gets a direct knowledge of executing signing the document from the executant himself that is the second stage third stage or a person might have seen another attesting witness signing the document in the presence of the executant after the executant signing it and on seeing that that signature being put by the attesting witness under the direction of the executant this witness also can subscribe it is not necessary that both the attesting witnesses should sign simultaneously at at the time when the executant signs the document that is what's they were the definition of they were attested attested also says yes next question yes sir this is relinquishment of a share in the immovable property in favor of his brother is required compulsorily registration or not so far as the relinquishment of share in a property which is liable for partition is concerned in my view relinquishment of an undivided interest cannot be done a sale of an undivided interest can be done relinquishment in my knowledge cannot be done relinquishment amongst releasing that cannot be done again in my in my view i will also look into it not audible sir not audible but i'm just checking it out as to whether we have some questions on the youtube no it's fine so thank you sir for sharing all your knowledge and we are greatly indebted to you thank you thank you thank you all the very best all the very