S.S.

Jain Subodh Law College

A comparative study on Sale under TPA, 1882 and Sale under Sales of Goods
Act, 1930

Submission To: Submitted By:

Ms. Nishtha Acharya Gaurav Upmanyu

Assistant Professor Roll no:- 27

Semester 7th Section A

 CERTIFICATE

This is to certify that Gaurav Upmanyu student of B.A. L.L.B. of S.S. Jain Subodh Law
Collage, has completed his project on under the guidance of Ms. Nishtha Acharya, Assistant
Professor, S.S. Jain Subodh Law Collage, Jaipur. This project is an original, independent work to
the best of my knowledge and has not been published anywhere and has been pursued solely for
academic interest.

(Signature of Teacher)

Ms. Nishtha Acharya

 ACKNOWLEDGEMENT

The project is incomplete without thanking a few people who have been my pillar of support
throughout this work.

I would like to express my deep and sincere gratitude to my teacher Ms. Nishtha Acharya for
her continuous support. She have always been there to listen , guide me and help has been
constantly monitoring the progress of my work and show me the different way to approach a
research problem and also the need to become persistent to accomplish any mission.

I am also obliged to acknowledge the college administration for providing a wonderful library
which is a store house of knowledge and also for providing all the electronics resource without
which no such research could have been possible.

Finally, I would like to thank everybody, who played a significant role in the successful
completion of my dissertation.

(Student Signature)

Gaurav Upmanyu
 Table Of Content

1. Introduction

2. Transfer of property act 1882

3. Different Ways Of Transfer of property

4. The Sale of Goods Act, 1930

5. Bibliography
 Introduction

The Indian Sale of Goods Act, 1930 is a Mercantile Law, which came into existence on 1 July
1930, during the British Raj, borrowing heavily from the Sale of Goods Act 1893. It provisions
for the setting up of contracts where the seller transfers or agrees to transfer the title (ownership)
in the goods to the buyer for consideration. It is applicable all over India, except Jammu and
Kashmir. Under the act, goods sold from owner to buyer must be sold for a certain price and at a
given period of time. The act was amended on 23 September 1963, and was renamed to the Sale
of Goods Act, 1930. It is still in force in India, after being amended 1963 and in Bangladesh as
the Sale of Goods Act, 1930 (Bangladesh).

When a person acquires or owns an immovable property, the law also give him/her the right to
use, lease, sell, rent or transfer/gift of the land. The owner also has a right to mortgage his
immovable property as a security for loans. However, there are some laws which restrict the
type of use a land can be put to, e.g., a land may be used only for residential or commercial
purposes to prevent haphazard/unorganized growth of cities and towns. Laws in some of the
States prevent/restrict outsiders from acquiring property within the State. Restrictions are also
placed on non-agriculturists from acquiring agricultural land. There are also other laws which
prescribe rules and regulations for protection of environment or which provide for approval of
building plans/designs so as to protect people from natural or manmade hazards. Some laws like
the Registration Act, 1908, also lay down provisions governing registration of property
transactions so as to keep proper records of ownership of property in the public domain. Some
laws relating to taxation like the Income Tax Act, 1956 lay down certain provisions and
procedures to be observed while undertaking property transactions so as to ensure tax
compliance of an owner before disbursal of property.
 Transfer of Property Act, 1882

With the exception of certain instances, the Act does not govern the transfer of property by
operation of law, such as sale by the order of court, auction or forfeiture as well as transmission
of title under other laws like Hindu Succession Act. As such, transfers by will and inheritance are
not governed by the Act. Section 5, under Chapter II of the Act, defines transfer of property as
“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; and ‘to transfer property’ is to
perform such act”. Living person includes a company or association or body of individuals,
whether incorporated or not. The person/s transferring the property is referred to as the transferor
while the person/s to whom the property is being transferred, is referred to as the transferee.
Where property is transferred subject to a condition or limitation absolutely restraining the
transferee or any person claiming under him from parting with or disposing of his interest in the
property, the condition or limitation is void, except in the case of lease, under Section 10 of the
Act.

Also, where, on a transfer of property, under Section 11, an interest is created absolutely in
favour of any person, but the terms of the transfer direct that such interest shall be applied or
enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest
as if there were no such direction.

The Act1 covers property which can or cannot be transferred. Parties competent to contract and
entitled to transferable property is competent to transfer under the Act. Thus, every person2

 competent to contract and entitled to transferable property

 authorized to dispose of transferable property not his own, is competent to transfer such
property, either wholly or in part, and either, absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and prescribed by the law for the
time being in force.

1
The Transfer of Property Act 1887 Section 6
2
The Transfer of Property Act 1887 Section 7
This means that the parties must:

 have attained the age of majority i.e., 18 years

 be of sound mind
 not be disqualified to enter into a contract by some other law applicable to them.

The Act, the transfer of property passes forthwith to the transferee all the interest which the
transferor is capable of passing and the legal incidents thereof. The Act also allows for oral
transfer except in cases where writing is expressly required by law.

Different ways in which property can be transferred

Sale of immovable property: Chapter III of the Act, treats transfer of ownership in exchange for
a price paid or promised or part-paid and part-promised as sale of immovable property. A
contract for the sale of immovable property is a contract stating that a sale of such property will
take place on terms settled between the parties. Delivery of tangible immovable property takes
place when the seller places the buyer, or such person as he directs, in possession of the
property.3

Mortgage of immovable property: Mortgage, defined by Section 58 in Chapter IV, is an

instrument to secure a loan. The transferor is called a mortgagor, the transferee a mortgagee. The
principal money and interest on which payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which the transfer is effected is called a
mortgage-deed. Leases of immovable property: Chapter V also states that a lease of immovable
property is a transfer of a right to enjoy such property for a certain time, in consideration of a
price paid or promised, or of money or service or a share of crop or any other thing of value, that
is rendered periodically or as specified by the agreement between the transferor and the
transferee.4 Exchange of property: As per Chapter VI, when two persons mutually transfer the
ownership of one thing for the ownership of another, neither things or both things being money

3
The Transfer of Property Act 1887 Section 9
4
The Transfer of Property Act 1887 Section 105
only, the transaction is called an “exchange”. A transfer of property in completion of an
exchange can be made only in manner provided for the transfer of such property by sale.

Gift of Immovable Property:

Chapter VII of the Act covers the transfer of property by gift. Accordingly, a gift is the transfer
of existing movable or immovable property made voluntarily and without consideration, by one
person, called the donor, to another, called the donee, and accepted by, or on behalf of the donee.
The Act states that State Governments, through notification in the official gazette, may exempt
provisions under Section 54, paragraph 2 and 3, 107 and 123, but any district or tract of country
excluded from the operation of the Indian Registration Act, 1908, cannot be covered by this
exemption. The Act specifically deals with priority of rights created by transfers. It lays down
that where a person purports to create by transfer at different times rights in or over the same
immovable property, each later created right shall, in the absence of a special contract or
reservation binding the earlier transferees, be subject to the rights previously created. When the
property is in dispute and in which any right to immovable property is in question, the property
cannot be transferred during the pendency in any Court having authority within the limits of
India excluding the State of Jammu and Kashmir or established beyond such limits by the
Central Government, of any suit or proceeding which is not collusive and in which any right to
immovable property is directly and specifically in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other
party thereto under any decree or order which may be made therein, except under the authority of
the Court and on such terms as it may impose. For this purposes,, the pendency of a suit or
proceeding is deemed to commence from the date of the presentation of the plaint or the
institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order, and complete satisfaction or
discharge of such decree or order has been obtained, or has become unobtainable by reason of
the expiration of any period of limitation prescribed for the execution thereof by any law for the
time being in force.
Property that Can or Cannot be Transferred

The Transfer of Property Act specifies that property of any kind may be transferred, except as
otherwise provided by the Act or by any other law in force. Depending on the type of property to
be transferred, transfer of property would include:

1. When the property is land:

a. The easements annexed thereto

b. The rents and profits thereof accruing after the transfer
c. All things attached to the earth.

2. Where the property is a house

a. The easements annexed thereto

b. The rent thereof accruing after the transfer
c. The locks, keys, bars, doors, windows
d. All other things provided for permanent use therewith.

Where the property is a debt or other actionable claim, the securities therefore (except where
they are also for other debts or claims not transferred to the transferee), but not arrears of interest
accrued before the transfer. Actionable claim is defined as a claim to any debt, other than a debt
secured by mortgage of immovable property or by hypothecation or pledge of movable property,
or to any beneficial interest in movable property not in the possession, either actual or
constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief,
whether such debt or beneficial interest be existent, accruing, conditional or contingent. Where
the property is money or other property yielding income, the interest or income thereof accruing
after the transfer takes effect.
Property which cannot be transferred

The Act specifically provides for the properties which cannot be transferred under the provisions
of the Act. The same are as follows:

a. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining

a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot
be transferred.
b. A mere right of re-entry for breach of a condition subsequent cannot be transferred to
anyone except the owner of the property affected thereby.
c. An easement cannot be transferred apart from the dominant heritage.
d. An interest in property restricted in its enjoyment to the owner personally cannot be
transferred by him.
e. A right to future maintenance, in whatsoever manner arising, secured or determined,
cannot be transferred.
f. A mere right to sue cannot be transferred.
g. A public office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.
The Sale of Goods Act, 1930

1. Short title, extent and commencement.—

(1) This Act may be called the Sale of Goods Act, 1930. [(2) It extends to the whole of India
[except the State of Jammu and Kashmir]

(3) It shall come into force on the 1st day of July, 1930.

Definitions.—In this Act, unless there is anything repugnant in the subject or context,—

(1) “buyer” means a person who buys or agrees to buy goods;

(2) “delivery” means voluntary transfer of possession from one person to another;

(3) goods are said to be in a “deliverable state” when they are in such state that the buyer would
under the contract be bound to take delivery of them;

(4) “document of title to goods” includes a bill of lading, dock-warrant, warehouse keeper’s
certificate, wharfingers’ certificate, railway receipt, 1[multimodal transport document,] warrant
or order for the delivery of goods and any other document used in the ordinary course of
business as proof of the possession or control of goods, or authorising or purporting to authorise,
either by endorsement or by delivery, the possessor of the document to transfer or receive goods
thereby represented;

(5) “fault” means wrongful act or default;

(6) “future goods” means goods to be manufactured or produced or acquired by the seller after
the making of the contract of sale;

(7) “goods” means every kind of movable property other than actionable claims and money; and
includes stock and shares, growing crops, grass, and things attached to or forming part of the
land which are agreed to be severed before sale or under the contract of sale;

(8) a person is said to be “insolvent” who has ceased to pay his debts in the ordinary course of
business, or cannot pay his debts as they become due, whether he has committed an act of
insolvency or not;
(9) “mercantile agent” means a mercantile agent having in the customary course of business as
such agent authority either to sell goods, or to consign goods for the purposes of sale, or to buy
goods, or to raise money on the security of goods;

(10) “price” means the money consideration for a sale of goods;

(11) “property” means the general property in goods, and not merely a special property;

(12) “quality of goods” includes their state or condition;

(13) “seller” means a person who sells or agrees to sell goods;

(14) “specific goods” means goods identified and agreed upon at the time a contract of sale is
made; and

(15) expressions used but not defined in this Act and defined in the Indian Contract Act, 1872 (9
of 1872), have the meanings assigned to them in that Act.

Application of provisions of Act 9 of 1872. —The unrepealed provisions of the Indian

Contract Act, 1872, save in so far as they are inconsistent with the express provisions of this Act,
shall continue to apply to contracts for the sale of goods.

Sale and agreement to sell.—

(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the
property in goods to the buyer for a price. There may be a contract of sale between one part-
owner and another.

(2) A contract of sale may be absolute or conditional.

(3) Where under a contract of sale the property in the goods is transferred from the seller to the
buyer, the contract is called a sale, but where the transfer of the property in the goods is to take
place at a future time or subject to some condition thereafter to be fulfilled, the contract is called
an agreement to sell.

(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled
subject to which the property in the goods is to be transferred.
Contract of sale how made.—

(1) A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of
such offer. The contract may provide for the immediate delivery of the goods or immediate
payment of the price or both, or for the delivery or payment by instalments, or that the delivery
or payment or both shall be postponed.

(2) Subject to the provisions of any law for the time being in force, a contract of sale may be
made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be
implied from the conduct of the parties.

Existing or future goods.—

(1) The goods which form the subject of a contract of sale may be either existing goods, owned
or possessed by the seller, or future goods.

(2) There may be a contract for the sale of goods the acquisition of which by the seller depends
upon a contingency which may or may not happen.

(3) Where by a contract of sale the seller purports to effect a present sale of future goods, the
contract operates as an agreement to sell the goods.

Goods perishing before making of contract.—Where there is a contract for the sale of specific
goods, the contract is void if the goods without the knowledge of the seller have, at the time
when the contract was made, perished or become so damaged as no longer to answer to their
description contract.

Goods perishing before sale but after agreement to sell.—Where there is an agreement to sell
specific goods, and subsequently the goods without any fault on the part of the seller or buyer
perish or become so damaged as no longer to answer to their description in the agreement before
the risk passes to the buyer, the agreement is thereby avoided.

Ascertainment of price.—

(1) The price in a contract of sale may be fixed by the contract or may be left to be fixed in
manner thereby agreed or may be determined by the course of dealing between the parties.
(2) Where the price is not determined in accordance with the foregoing provisions, the buyer
shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent
on the circumstances of each particular case.

Agreement to sell at valuation.—

(1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the
valuation of a third party and such third party cannot or does not make such valuation, the
agreement is thereby avoided: Provided that, if the goods or any part thereof have been delivered
to, and appropriated by, the buyer, he shall pay a reasonable price therefor.

(2) Where such third party is prevented from making the valuation by the fault of the seller or
buyer, the party not in fault may maintain a suit for damages against the party in fault.

Stipulations as to time.— Unless a different intention appears from the terms of the contract,
stipulations as to time of payment are not deemed to be of the essence of a contract of sale.
Whether any other stipulation as to time is of the essence of the contract or not depends on the
terms of the contract.

Condition and warranty.—

(1) A stipulation in a contract of sale with reference to goods which are the subject thereof may
be a condition or a warranty.

(2) A condition is a stipulation essential to the main purpose of the contract, the breach of which
gives rise to a right to treat the contract as repudiated.

(3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which
gives rise to a claim for damages but not to a right to reject the goods and treat the contract as
repudiated.

(4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case
on the construction of the contract. A stipulation may be a condition, though called a warranty in
the contract.
When condition to be treated as warranty.—

(1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may
waive the condition or elect to treat the breach of the condition as a breach of warranty and not
as a ground for treating the contract as repudiated.

(2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof,
the breach of any condition to be fulfilled by the seller can only be treated as a breach of
warranty and not as a ground for rejecting the goods and treating the contract as repudiated,
unless there is a term of the contract, express or implied, to that effect.

(3) Nothing in this section shall affect the case of any condition or warranty fulfilment of which
is excused by law by reason of impossibility or otherwise.

Implied undertaking as to title, etc.— In a contract of sale, unless the circumstances of the
contract are such as to show a different intention there is—

(a) an implied condition on the part of the seller that, in the case of a sale, he has a right to sell
the goods and that, in the case of an agreement to sell, he will have a right to sell the goods at the
time when the property is to pass;

(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods;

(c) an implied warranty that the goods shall be free from any charge or encumbrance in favour of
any third party not declared or known to the buyer before or at the time when the contract is
made.

Sale by description.— Where there is a contract for the sale of goods by description, there is an
implied condition that the goods shall correspond with the description; and, if the sale is by
sample as well as by description, it is not sufficient that the bulk of the goods correspond with
the sample if the goods do not also correspond with the description.

Implied conditions as to quality or fitness.— Subject to the provisions of this Act and of any
other law for the time being in force, there is no implied warranty or condition as to the quality
or fitness for any particular purpose of goods supplied under a contract of sale, except as
follows:—
(1) Where the buyer, expressly or by implication, makes known to the seller the particular
purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill
or judgment, and the goods are of a description which it is in the course of the seller’s business to
supply (whether he is the manufacturer or producer or not), there is an implied condition that the
goods shall be reasonably fit for such purpose: Provided that, in the case of a contract for the sale
of a specified article under its patent or other trade name, there is no implied condition as to its
fitness for any particular purpose.

(2) Where goods are bought by description from a seller who deals in goods of that description
(whether he is the manufacturer or producer or not), there is an implied condition that the goods
shall be of merchantable quality: Provided that, if the buyer has examined the goods, there shall
be no implied condition as regards defects which such examination ought to have revealed.

(3) An implied warranty or condition as to quality or fitness for a particular purpose may be
annexed by the usage of trade.

(4) An express warranty or condition does not negative a warranty or condition implied by this
Act unless inconsistent therewith.

Sale by sample.—

(1) A contract of sale is a contract for sale by sample where there is a term in the contract,
express or implied, to that effect.

(2) In the case of a contract for sale by sample there is an implied condition—

(a) that the bulk shall correspond with the sample in quality;

(b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample;

(c) that the goods shall be free from any defect, rendering them unmerchantable, which would
not be apparent on reasonable examination of the sample.

Goods must be ascertained.—Where there is a contract for the sale of unascertained goods, no
property in the goods is transferred to the buyer unless and until the goods are ascertained.
Property passes when intended to pass.—

(1) Where there is a contract for the sale of specific or ascertained goods the property in them is
transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of
the contract, the conduct of the parties and the circumstances of the case.

(3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for
ascertaining the intention of the parties as to the time at which the property in the goods is to
pass to the buyer.

Specific goods in a deliverable state.— Where there is an unconditional contract for the sale of
specific goods in a deliverable state, the property in the goods passes to the buyer when the
contract is made, and it is immaterial whether the time of payment of the price or the time of
delivery of the goods, or both, is postponed.

Specific goods to be put into a deliverable state.— Where there is a contract for the sale of
specific goods and the seller is bound to do something to the goods for the purpose of putting
them into a deliverable state, the property does not pass until such thing is done and the buyer
has notice thereof.

Specific goods in a deliverable state, when the seller has to do anything thereto in order to
ascertain price.— Where there is a contract for the sale of specific goods in a deliverable state,
but the seller is bound to weigh, measure, test or do some other act or thing with reference to the
goods for the purpose of ascertaining the price, the property does not pass until such act or thing
is done and the buyer has notice thereof.

Sale of unascertained goods and appropriation.—

(1) Where there is a contract for the sale of unascertained or future goods by description and
goods of that description and in a deliverable state are unconditionally appropriated to the
contract, either by the seller with the assent of the buyer or by the buyer with the assent of the
seller, the property in the goods thereupon passes to the buyer. Such assent may be express or
implied, and may be given either before or after the appropriation is made.
(2) Delivery to carrier.—Where, in pursuance of the contract, the seller delivers the goods to
the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of
transmission to the buyer, and does not reserve the right of disposal, he is deemed to have
unconditionally appropriated the goods to the contract.
 BIBLIOGRAPHY

PRIMARY SOURCES

1. The Benami Transactions(Prohibition) Act, 1988.

2. The Prevention of Corruption Act, 1988.

3. The Transfer of Property Act, 1882.

SECONDARY SOURCES

BOOKS:

1. Rai,KaiIash-Taxation Laws,ALA,4th Ed.2000.

2. Paranjape,N.V.-Criminology&Penology,CLP,l 1th Ed(Reprinted)2003.

3. SiddiquejAhmad-CriminoIogyProblems&PerspectiveSjEBC^*11 Ed. 1997.

4. Bangia,R.K.-Law of Contract,ALA,Ed.2006.