Last Updated 31 Jan 2023

The Meaning of the Definition “Transfer”

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The word “transfer” that is mentioned in Section 71-A is not defined anywhere in the entire Act and not even in Section 71-A itself. Quoting the full bench judgement of the Patna High Court in CWJC No. 610 of 1984: Smt. Bina Rani Ghosh v. Commissioner, South Chota Nagpur Division and others:

“In the context this word as laid in Section 71-A would go away little manner of doubt that it absolutely was intended to hide all transfers, actual or implied. Except from thus, within the absence of a definition, the word ‘transfer’ needs to lean its ordinary dictionary meaning and once it’s so, it is settled positively.”

In the case of Shashi Bhushan Singh v. Shankar Mahto (AIR 1950 Calcutta 252), The point of consideration was the use of the word ‘transfer’ in Section 26-F of the Bengal Tenancy Act, 1885.Their Lordships observed that:

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“(15) As indicated already in Section 26 F of the Act, there is no indication that the word ‘transfer’ is used in any restricted sense. It is used in the general and ordinary sense, and if any assistance can be obtained from sub-section (11) the only conclusion that can be obtained from sub-section (11) the only conclusion that can be drawn is that the intention of the legislature was not to limit the scope of the word ‘transfer’ in any particular manner. If without reference to any other section in the Act the interpretation of the word ‘transfer’ is to be based, we think it is the wider meaning and not a restricted one which can have used in the word transfer.”

“(16) Transfer means passage of right from one person to another. Such transfer may take place in three different ways. It may be by virtue of an act done by a transferor with an intention, as in the case of a conveyance or gift, or secondly, it may be by operation of law, as in the case of forfeiture, bankruptcy, intestacy etc. Thirdly, it may be a transfer that is effected through Court, as in execution of a decree for either enforcing a mortgage, or for recovery of money due under simple money decree.”

Section 71-A talks about transfer alone, whereas Section 5 of the Transfer of Property Act talks about the term ‘transfer of property’ as a special term import. The concept of transfer of property is not defined in the section but it is elaborated in Section 5 of the Transfer Property Act.

It is in this context that the salient warning in Laurence Arthur Adamson and others V. Milbourne and Metropolitan Board of Works (AIR 1929 Privy Council 181) has to be recalled that it is unsatisfactory and unsafe to seek a meaning of the word used in an Act in the definition clause of another statute dealing with cognate matter even by the same legislature much more so by another legislature. That view has again been forcefully reiterated in Jainarayan V. Motiram Gangaram (AIR 1949 Nagpur 34).

The Full Bench of Patna High Court has held in Smt. Bina Rani Ghosh V. Commissionor, South Chota Nagpur and others that on the larger purpose of the statute, and in the language of Section 71A, a surrender by a Scheduled Tribe raiyat of his statutory right to hold land would amount to transfer within the meaning of the said section of the Act (1985 BLT (Rep) 279 (FB).

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