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Transfer Property
Completed by Vikas Deep Verma
(Research scholar of University of Lucknow)
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of e-learning by students and any commercial
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Transfer of Property Act 1882 General Introduction
- 17 Feb 1882
- Wef 1 July 1882
- No of sections 137
- No of Chapters 8
- It was Drafted in 1st^ law commission. Objective of this Act โ An act to the transfer of property by act of parties.
- General Rule of Transfer of Property (Section 1-35A)
- Special Rule of Transfer of Property (Section 54 - 137)
- Section 5-37 Applicable on Movable or immovable property.
- Section 38-53 Applicable on only immovable property.
Difference between them
- Movable property can easily be moved from one place to another without changing its shape. But the immovable property is not easy to transport from one place to another.
- Immovable property has no need to be registered under Indian registration act 1908. But whenever and immovable property is transferred. It is compulsory to get it registered if its value exceeds hundred rupees. Unit I Definition clause section 3 Immovable property section 3
- According to this section immovable property does not include standing Timber, growing crops or grasses.
- According to the section 3 sub section 25 of general clauses act 1897
- Immovable property includes land, benefits arising out of land and things attached to the earth. In the case of Marshal vs Green case It was held that generally fruit bearing trees are immovable property and they are not standing Timber but if parties intended to use it as timber after cutting it then it is called is standing timber or movable property. Attestation The TPA requires attestation in only two types of transfer
- Mortgage
- Gift Other documents affecting sale, lease, exchange etc. not be attested. According to Section 3 of this act attest means signature of two witnesses who testified that the executant has signed the document before them.
The attesting witnesses only testify that they have seen the transferor signature the document and they are not witness of contents of documents. How many witnesses required? At least two attesting witnesses are required. Notice ( Section 3) A person is said to have notice of a fact when he actually knows that fact or when what for wilful abstention from an enquiry or search which he ought to have made or gross negligence he would have known it. Kinds of notice Notice maybe the actual or constructive. Tilakdhari v khedan Lal In this case court held that registration of document does not amount to notice. Actionable claim (Section 3) Actionable claim means
- A claim to unsecured.
- A claim to any beneficial interest in movable property not in possession of claimant. Actionable claim is similar to what is known in England as choose - in - action. Any debt which is secured by mortgage or pledge is not actionable claim. Section 130 of this act list down the mode of transfer of actionable claim. It provides that the transfer can be made only by An instrument in writing signed by transferor or by his duly authorised agent. Definition of Transfer of Property Section 5 Transfer of Property means an act by which a living person conveys or transfer property in present or in future to one or more other living persons or to himself or to himself and one or more other living persons and to transfer property is to perform such act.
Where on a Transfer of Property an interest therein 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 or if there were no such direction. Exceptions -
- When gift is given to enjoy the benefits of property and complete ownership has not been transferred.
- Accumulation of income from the transferred property is valid to the extent of justified in section 17.
- Restriction imposed for the benefit of enjoyment of property transferred is valid section 11 para 2. Note - By tulk vs Maxhy case Para II was added in section 11. Condition making interest determinable on insolvency or attempted alienation section 12 According to section 12 where property is transferred subject to a conditions that on becoming the transfer the interest in property of transfer re shall cease such condition is void. Condition determining A lease in the event of the insolvency of the lessee is valid. Transfer of property for the benefit of unborn Child (Section 13) Section 13 lays down following rules for the transfer of interest to the unborn children
- No direct transfer to unknown person child in child in womb.
- Prior interest in favour of unborn person must always be preceded by prior interest in favour of living person or trust.
- Absolute interest the entire property must be transferred to unborn person, life interest in favour of unborn person is not permissible. Roman Maxim โ a child en venture de sa mere โ That means a child in mothers womb.
when child acquires his interest in property section 2 0 According to section 20 the child acquires his interest in the property upon his birth although he may not be entitled to the enjoyment thereof immediately on his birth. Where transfer cannot directly made to unknown person for the definition of Section 5 is limited to living person, such a transfer can only be made by the machinery of trust. Rule against double possibility under section 13 Before 1926 in England double possibility that is life interest to an one son watch aloud but life interest to grandson will not allow because it involves double possibility. In whitby v/s Michelle It has been held that single possibility is allowed but double possibility is not allowed so this case has given rule against double possibility. But after passing of English transfer of property act 1925 this rule of has been abolished now Indian rule of perpetuity and English rule is same no life interest to unborn person can be transferred but absolute interest can be given to unknown person. Rule against perpetuity section 14 The TPA is against perpetuity. no one can hold his property from his grave Perpetuity is of 2 kind
- By taking right off alienation of transferee section 10.
- By creating remote future interest section 14 Example โ Suppose A transfer his property to B for life time and then to C for his life time and then to D the unborn child of C when he becomes 18 years of age. So as per section 14 B and C must be in existence at time of transfer. Suppose in this problem B remains alive for 10 years and after his death C remains alive for 15 years and at time of death of C his Son D took birth then the maximum period of perpetuity 10+15+18=43 years Exceptions
we accept the benefits of the teeth he has to relinguish which property and if she rejects the benefits given in the dip that benefits return to transfer. When election is not necessary where particular benefit in the transfer deed is independent or indirect or not given in lieu of property to be transferred then owner is not bound to elect. If owner become disable for transfer then during the continuance of disability period he has not be elect. In case of government grants election is not necessary. Time period for election If the owner is enjoying the benefit conferred in the transfer deed for 2 year without denying the transfer the property it shall be presumed that he has elected to retain the benefits and transfers the property to the transferee. Unit 3 Definition of Sale Sale is the transfer of ownership in the exchange for a price paid or promised or part paid and part promised. Sale how made?
- Sale of immobile property of value rupees 100 or more can only be made by registered deed.
- The sale of immobile property of value less than 100 can be made by registered deed or by delivery of the property. Mortgage Definition of mortgage under section 58 Mortgage A mortgage is the transfer of an interest in specific immobile property for the purpose of promise.
Mortgagor The transferor is called the mortgagor. Mortgagee The transfer is called the mortgagee. Mortgage money Loan + interest are called mortgage money. Mortgage deed the instrument by which the transfer is effected is called mortgage deed. Essential element of mortgage (Section 58 (a))
- Transfer of an interest.
- Mortgagor, mortgagee, mortgage money, mortgage- deed.
- Specific immovable property.
- Transfer must be made to secure the loan or the performance of promise. Kinds of Mortgage Section 58 contemplates 6 type of mortgage-
- Simple mortgage
- Mortgage by conditional sale
- Usufructuary mortgage
- English mortgage
- Mortgage by deposit of title deeds ( Also Called Equitable Mortgage)
- Anomalous mortgage When mortgage to be assurance ( Section 159)
- Where the principal money secured is 100 rupees or up world a mortgage can be affected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Except - mortgage by deposit of title deeds.
- The principal money secured is less than 100 rupees a mortgage may be effected otherwise signed and attested as aforesaid or by delivery of the property.
- Where a lease of immovable property is made by a registered instrument such lease or instrument must be signed and executed by both the parties. Note section 107 shall not apply on agricultural land. Time period of lease (106)
- In the absence of a contract A lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from here to here and it can be terminated by either party by giving 6 months notice.
- A lease of any other property for any other purposes shall be deemed to be a lease from month to month and terminable by giving a 15 days notice. Termination of lease section 111
- By passing or completing the time period in lease deed.
- Where such time is limited conditionally on the happening of some event by the happening of such events.
- Where the interest of lease in the property terminates.
- In case of the interest of the lessee and lesser in the whole of the property become vested in person.
- By express surrender.
- By Implied surrender.
- By forfeiture of notice to determine the lease or quit. Note- Section 106 has been substituted by act number 2003 and enforcement date is 31st December 2002. Licence Section 52 of easement act when one person grants to another a right to do or continue to do in immovable property of grantor something which would in absence of such right be unlawful and such right does not amount to easement and then it is called licence. In the case of Associated hotel of India v/s R. N. Kapoor. Court has pointed out the distinction between lease and licence according to it..
- If document gives only a right to use the property in particular way while it remains under the control of owner there off it will be a licence.
- If document gives excusive possession to the person for certain time it is called lease. Gift Definition of Gift section 123
- Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donee and accepted by or on behalf of the donee.
- The person who made a gift is called the donor.
- To whom it is made is called the donee. Essential of valid gift
- Gift can be made only of existing property and not of future property.
- The gift to should be made voluntarily and without consideration
- Capacity of donor and donee. - Must be competent to make a contract so he must not be a minor unsound minded and barred by law the donee not competent to make a contract.
- Acceptance of Gift by donee. Accept the gift either himself or some other persons on behalf. Note- If donee dies before acceptance gift is void. Section 125 Gift is made to several persons and some of whom has given acceptance and other has not accepted it then such gift is wide to the person who has not accepted it. Gift how made section 123
- Gift of immovable property of any value can be made by registered deed signed by the donor and also attested by at least two witnesses.
- Gift of movable property can be made either by registered deed or by delivery of possession of property.
- Note This chapter does not apply to Muslims.
