THE TRANSFER OF PROPERTY ACT, 1882

INTRODUCTION

Subject, herein being the “Transfer of Property”, so the act revolves around every possible transfer of immovable property between two living persons (doctrine of Inter vivos). Where it was enforced on 01-07-1882, it got enacted on 02-17-1882.This legislature is headed by the “Department of Legislative” under the “Ministry of Law and Justice”. It consists of 137 sections in 8 chapters.

“Life, liberty and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place.”

–Frederic Bastiat

PREAMBLE

Whereas it is expedient to define and amend certain parts of law relating to the transfer of property by act of parties.

(Certifying, this legislature to be a convenient means to explain and change the portions of statute dealing with transfer of property between two living parties).

SCENARIO OF TRANSFER

• Transfer could be done by two means- Through parties act or through Laws operation.
• Then, transfer through parties act could be done by two means- Through Inter vivos or through testamentary (will, taking effect after death).
• When Inter vivos is done with immovable property, it could be any among-sale, mortgage, charge, lease, exchange, gift or actionable claims.

TRANSFER

The term “Transfer” is defined in reference to the word “convey’ means a process or an act by which something is handed over to another.

This word in English law is narrower and in more usual sense refers to transfer of an estate in land, but it is sometimes used in much wider sense to include any form of an assurance Inter vivos.

The word “convey” in section 5 of The Transfer of Property Act, 1882 is used in the wider sense as referred to above.

CATEGORISED TRANSFERS

The Sale of Goods Act, 1930– Movable property is transferred inter vivos.

The Transfer of Property Act, 1882– Immovable property is transferred inter vivos. 

Law of succession– Property is transferred from dead person to living person, followed by categories where person dies leaving will or without will, there testamentary succession and intestate succession will be applicable respectively.

PROPERTY

This legislature deals only with transfer of Immovable property. Difference between movable and immovable property:

MOVABLE PROPERTY:

• Movement- It can be easily transported from one place to another without changing it’s shape, capacity, quality or quantity.
• Transfer- Mere delivery with intention to transfer the movable property completes the transfer.
• Registration- It’s registration is optional under The Registration Act, 1908.
• Illustration- Mongo tree, if cut and sold for timber purpose.

IMMOVABLE PROPERTY

• Movement- It cannot be easily transported from one place to another, if transported it will lose it’s original shape, capacity, quantity or quality.
• Transfer-Mere delivery is not sufficient for a transfer to be valid, the property must be registered in the name of the transferee.
• Registration- It requires compulsory registration under The Indian Registration Act, 1908, subject to condition that it’s value if exceeds rupees100.
• Illustration- Mango tree if sold for fruits and nourishment.

ESSENTIALS

Transfer-

Here transfer may be a gift, sale, mortgage, pledge, charge, lease, actionable claims.

Legal rules for valid transfer-

• Property must be transferable.
• Transferor and transferee must be competent.
• Consideration and object of transfer must be lawful.
• Transfer must take place as per method prescribed under law.

Meaning (section 5)-

Transfer of property means an act by which a living person, convey property in present or in future to one or more other living person or to himself and one or more other living person: and to transfer property is to perform such act.

“Living person” includes a company or associate or body of individuals whether incorporated or not.

Subject matter of transfer (section 6)-

Every kind of property can be transferred except the following:

• Chance of an heir apparent.
• Right of re-entry.
• Transfer of easement.
• Restricted interest.
• Right to future maintenance.
• Right to sue.
• Transfer of public office, salary and pension.

Who may transfer property (section 7)-

• Every person, competent to contract and having ownership can transfer property.
• A minor can be transferee but a minor is not competent to be a transferor.
• Persons who are authorized to transfer property can also transfer property validly.

Formalities for transfer (section 54)-

Movable property:

• Oral (by delivery of possession)
• Writing (by executive agreement)

Immovable property:

• Tangible –Registration mandatory(property value of rupees 100 or above)

                             Registration optional (property value of less than rupees 100)

• Intangible-Registration compulsory.

SYNOPSIS

Chapter I- Preliminary (section1- 4)

 This chapter is a brief prelude to this legislature, involving title, some important elucidations and specifying this legislature’s dependency of other (Contract  Act) and this legislature’s capability to upgrade other(Registration Act).

Chapter II- Transfer of property by act of parties (section 5- 53A)

It talks about-

• some definitions,
• what may be transferred and by whom,
• types of interests involved,
• different transfers made to and by people or situations,
• rights and obligations arose from such transfers and
• some crucial concepts like Rule of perpetuity and doctrine of election.

Chapter III-Sale (section 54- 57)

Chapter IV- Mortgage and Charge (section58- 104)

Chapter V- Lease (section105- 117)

Chapter VI- Exchange (section118- 121)

Chapter VII- Gift (section122- 129)

Chapter VIII- Actionable Claim (section130- 137)

(NOTE: Content of unexplained synopsis will be given in the introduction of my chapter wise upcoming blogs)