Competence, Operation and Restraint against property, THE TRANSFER OF PROPERTY ACT,1882

SECTION 7: PERSONS COMPETENT TO TRANSFER

• Here, person must be-
  • Competent to contract , means have:
    • Attained the age of majority,
    • Soundness of mind and
    • Not been disqualification of law.
  • Entitled to property, as
    • Entitlement of transferable property or
    • Authority to dispose of transferable property, not being his own property.
• Property, transferred by above mentioned people must be-
  • Either, whole or in part,
  • Either absolute or conditional; where conditional :
    • To circumstantial extent and
    • In the manner, which is being allowed and prescribed by any law for the time being in force
• Based upon, Latin maxim-
  • “Nemo dat quod non habet”, means:
    • No one gives what they do not have, which states that the purchase of a possession from someone who has no ownership right to , it also denies the purchaser any ownership title.

SECTION 8: OPERATION OF TRANSFER

• Transfer of property leads to, transfer interest from transferor to transferee, which-
  • Transferee is then capable of passing and
  • In the legal incidents thereof.
• Exception-
  • Any of the different intention:
    • Expressed or
    • Necessarily implied.
• Legal incidents (above mentioned), under which interest is being transferred from transferor to transferee are-
  • Where, property is land:
    • Easements annexes thereto,
    • Rents, profits accruing after transfer
  • Where, property is a house:
    • Easement annexed thereto,
    • Rent accruing after transfer thereof,
    • Locks, keys, bars, doors, windows and all other things provided for permanent use therewith.
  • Where, property is machine, attached to the earth:
    • Movable parts of the machine.
  • Where, property is a debt or other actionable claim:
    • Security( except, where they are also for other debts or claims not transferred to the transferee)
    • No arrears of interest accrued before property yielding is transferred
  • Where, property is money or other property yielding income:
    • Interest or income thereof accruing after the transfer takes effect.

SECTION 10: CONDITION RESTRAINING ALIENATION

• Concept-
  • Transfer is void when a transferor transfers a property, subject to conditions or limitations, which lead to absolute restrain.
  • “Absolute Restraint”, means a condition that attempts to take away either totally or substantially the power of alienation, and restraint on alienation is said to be absolute when it totally takes the right of disposal from the transferee.
  • In words of Justice Fry, “from the earliest times, the courts have always learnt against any devise to render an estate inalienable”.
• Ingredients-
  • Conditions which absolutely restraint the alienation.
  • Partial restrain is valid and enforceable.
  • This section applies only when there is transfer of ownership like:
    • Sale,
    • Gift, and
    • Actionable claim.
  • This section does applies on:
    • Mortgage or
    • Lease.
• Object-
  • Right of disposal is one of the essential features of ownership, and it is the right of owner.
  • Clarifies that the transfer would not be void but the condition would be.
• Exceptions-
  • Lease:
    • It applies to permanent or temporary lease.
    • Where, condition is beneficial for lessor or other claiming under him.
  • Married women:
    • To safeguard the right of married women.
    • So that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
• Excludes: Compromise-

Compromise is outside the preview of section 5, transfer of property. So section 10 does not apply on compromise.

Case 1: Mata Parsad V Nageshar Sahai

Dispute over succeeding the properties of the deceased between his widow and nephew. It was compromise between them that widow shall hold the possession of the property for her life while admitting the title of the nephew but nephew was restrained from transferring the property during the life of the widow.

Case 2: Laxmama V State of Karnataka

Court, held grant by government does not fall within the meaning of section 5 so it can be restraint.