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PROJECT ON

What kind of property may transfer

SUBMITTED
TO
Mr. shyamtanu paul
(FACULTY OF transfer of property act)

SUBMITTED BY vivek kumar sai


ROLL NO. 146
SEMESTER Iv
Submited on: 24.11.2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR.

ACKNOWLEDGMENT

I,

VIVEK KUMAR SAI,

feel myself highly elated, as it gives me tremendous pleasure to

come out with work on the topic WHAT KIND OF PROPERTY MAY TRANSFERED.
First and foremost, I take this opportunity to thank MR. SYAMTANU PAUL Faculty, transfer
of property act, HNLU, for allotting me such topic to work on. She has been very kind in
providing inputs for this work, by way of lectures and suggestions.
I would also like to thank my dear colleagues and friends in the University, who have
helped me with ideas about this work. Last, but not the least I thank the University
Administration for equipping the University with such good library and I.T. facilities, without
which, no doubt this work would not have taken this shape in correct time.

VIVEK KUMAR SAI

LIST OF ABBREVIATIONS

V.VERSUS
Sec..SECTION
In Re...IN REFRENCE
ClCLAUSE
AIR.ALL INDIA REPORT
AllALLAHABAD
Mad.MADRAS
SCSUPREME COURT
PC....PRIVY COUNSIL
Guj...GUJRAT
Pat.....PATNA
Bom..BOMBAY
LR.LAW REPORTER
Cal.CALCUTTA
NagNAGPUR
LJLAW JOURNAL

LIST OF CASES
Abbas Bandi Bibi v. Muhammad Raza

Ashrafi Devi v. Prem Chand

Atrabanessa Bibi v. Safutullaah Mia

Balkrishna v. Raghunath

Bansigopal v. V.K. Banerji

Bhupati Nath v. Ram Lal

Chanaderwati v. Lakhmi Chand

Gobinf v. Dwarkanath

11

Gurcharan Ram v. Tejwant Singh

Indoji Jethaji v. Kothapalli

Jones v. Skinner

Table of Contents
Topic Covered

Page Number

Case Table

Abbreviations

iii

The Transfer of Property Act, 1882: Bare Provision

Transfer of Property: An Introduction

Living Persons

In Present of In Future

To Himself

Family Settlement

Compromise

Partition

Surrender

Release

Relinquishment

10

Charge

11

Conclusion

13

Bibliography

14

RESEARCH METHODOLOGY:
The method of research adopted for the project was the analytical method based on secondary
sources. The texts that were used for the project include articles, books, news papers, research
papers, law journals and news given in various websites as well as online journals

The Transfer of Property Act, 1882


Bare Provision of the Act
Chapter II
Of Transfers of Property by Act of Parties
(A) Transfer of Property whether moveable or immovable
5. Transfer of property Defined. In the following sections transfer of property means an
act by which a living person conveys property, in present or in future, to one or more other living
persons, or to himself, or to himself1 and one or more living persons; and to transfer property is
to perform such act. In this section living person includes a company or association or body of
individuals, whether incorporated or not, but nothing herein contained shall affect any law for the
time being in force relating to transfer of property to or by companies, associations or bodies of
individuals1. Transfer of Property
An Introduction
The word transfer is defined with the reference to the word convey. This word in English
Law in its narrower and more usual sense refers to the transfer of an estate in land; but it is
sometimes used in a much wider sense to include any form of assurance inter vivos. The word
conveys in Section 5 of the Indian Act is used in the wider sense referred to above. Transferor
must have an interest in the property. He cannot sever himself from it and yet convey it.2 A lease
comes within the meaning of the word transfer. The words living person exclude transfers
by Wills and the Will only operates after the death of the testator. In Ma Kyin Hone v. Ong
Boon Hock, a single Judge of the Rangoon High Court said that the word transfer is a word of
very wide meaning and includes every transaction
whereby a party divests himself or is divested of a portion of his interest, that portion
subsequently vesting or being vested in another party. This meaning of transfer is supported by
the aforesaid definition in the Act. The Legislature has not attempted to define the word
property, but it is used in this Act in its widest and most generic legal sense. Section 6 says
that property of any kind may be transferred, etc. Thus an actionable claim is property;8 and so
is a right to a reconveyance

1 Ins. by Act 20 of 1929, sec. 6.


See Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p. 73.

of land.Property is not only the thing which is the subject matter of ownership, but includes the
dominium or the right or ownership or of partial ownership, and as Lord Langdale said it is the
most comprehensive of all terms which can be used inasmuch as it is indicative and descriptive
of every possible interest which the party can have.
It may be noted that property is essentially a bundle of rights and interests. When a property is
transferred, there may be transfer of all the rights in that property or only some of it. All the
rights in the property signify ownership or absolute interest. Only some rights or interests in a
property would mean partial or limited interest. In Sunil Sidharthbai v. Commissioner of
Income Tax,11 the Supreme Court rightly observed that in general, transfer of property means
passing of a right in the property from one person to another. In one case there may be passing of
entire bundle of rights from transferor to transferee, but in another case there may be transfer
only some of such rights. This, if A makes a gift of his house to B, there is transfer of absolute
interest of the house. It is a transfer of property. On the other hand, if A transfers the right of
enjoyment of his house to B for a certain period it is called a lease. It is transfer of only partial
interest in the house but it is also a transfer of

Living Persons
The words living person can only mean a human being, who is alive and conveys his property
to another person. A person, who disposes of his property by will, does not convey it as a living
person because the transfer takes effect after his death. There is no present transfer.

The words are use d as the transfer under the Act must be a deed intra vivos and not by will.
According to the Section, both the transferor and the transferee must be living, which includes
under Section 13 a person not in existence at the date of the transfer. The explanation to the
section further includes in the phrase a company or association or body or individuals whether
incorporated or not. So does also person according to the General Clauses Act, 1897. The
expression inter vivos refers to transfer or conveyance of the property from one living person
to another. Thus it is an act between two living persons who are parties to such transaction,
which takes place between two. That also is the trust of Section 5 of the Transfer of Property
Act. It is significantly more clear and explicit when it says that transfer of property means an
act by which is living person conveys property to one or more other living persons.

Where property was acquired by or transferred in favour of Secretary of unregistered Society or


Club, Secretary of unregistered Club or Society has no legal status to hold or acquire the
property in question because Secretary of unregistered Society or Club cannot come within the
definition of living person within the meaning of Section 5 of the Act. As such the application
by members of club claiming right of pre-emption on ground of transfer of adjoining land was
not maintainable.
A deity is not included in the definition of person in Section 5 of the Act. If a deity is not a
person, the provisions of the Act including Section 3 do not govern a transfer of property made
in favor of a deity.
An idol is a juristic person capable of holding property, but it is not a living person. An idol
not being a living person, a dedication of land to an idol does not fall within the terms of Section
122 and need not be made in writing or by a registered instrument under Section 123 of the Act.
It has also been said that an idol is only the symbol of the deity and that it would be contrary to
the Hindu religion that a deity make an acceptance of worldly goods as discussed in the case
below.
In Bhupati Nath v. Ram Lal,25 a full bench of the Calcutta High Court dealing with a Hindu
will, held that the principle of Hindu Law which invalidates a gift other than to a sentiment being
capable of accepting it does not apply to a bequest to the trustees for the establishment of an
image and the worship of a Hindu deity after the ancestors death nor does it make such a
bequest void. The Full Bench, after examining the Hindu texts and authorities observed that
according to the strict Hindu juridical notion there can be no gift in favour of the Gods for in the
case of deities there cannot be any acceptance and therefore necessarily any gift. Court has not
been regarded as living person therefore; transfer made by the order to the Court is not a
transfer of property within the meaning of Section 5 of the Transfer of Property Act. made
voluntarily and without consideration, by one person, called the donor, to another, and accepted
by or on the behalf of the done. Acceptance when to be made. Such acceptance must be
made during the lifetime of the donor and while he is still capable of giving. If the done dies
before acceptance, the gift is void. 22 Section 123 reads Transfer how effected. For the
purpose of making a gift of immovable property, the transfer must be effected by registered
instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the

purpose of making a gift of movable property, the transfer may be effected either by a registered
instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as
goods sold may be delivered.
In Present or in Future
The words In Present of in Future mean that the conveyance may be one which takes effect
immediately on execution or at some distant date, that is to say, the interest of the transferee
arises immediately on the execution of the document of at the date fixed by the parties. In Re
Mahomed Hasham & Co.,Martin, J., in holding that Section 5 did not apply to the Presidency
Town Insolvency Act, observed: I am not absolutely sure what the words in presenter in
future refer to. I should have thought grammatically they refer to property. In Shumsuddin v.
Abdul Husein, Jenkins, CJ., remarked, there is no definition in the Act of convey or of
property, but It is to be noticed that a transfer means a conveyance of property not only in
present but also in future.
A transfer of property may take place not only in present, but also in the future, but the property
must be in existence. The words in present or in future qualify the word conveys, and not the
word property.31 A transfer of property that is not in existence operates as a contract to be
performed in the future which may be specifically enforced as soon as the property comes into
existence. To sum it up a transfer of a property may be made so as to take place with immediate
effect or to take place on a future date. The transferor can make arrangement that the property
is vested or accrues to the transferee immediately after the completion of the transfer. He may
also make such arrangements in which the vesting of the interest of the property is postponed
to a future date. He is free to transfer a property also upon the fulfilment of certain conditions
Some illustrations are given below:
the property and
also does not law down any condition. The transfer is present and B gets the property with
immediate effect.
is present
(although he gets only life-interest) but the transfer in favor of C is future transfer.
examination.
Here, although the gift has been declared today but it shall take effect only if B gets first
division. Such transfers are called conditional transfers.

The conveyance may, therefore, be present, future or conditional. To Himself A transfer of


property under Section 5 of the Act requires two living persons, the transferor and the
transferee. One cannot transfer a property to himself. But, one can transfer a property to himself
in some other capacity. The words to himself were added to this section by the Amending Act,
1929 to include in the transfer of property also a case where a person makes any settlement of his
property in a trust and appoints himself as the sole trustee. Here, the transferor and the transferee
are physically the same person but as transferor he has the legal status of settlor whereas as
transferee his legal status is that of trustee.
Transfer of property as contemplated under this Act carries the same meaning throughout this
enactment as it has been defined in Section 5. This definition has limited the scope of the term
transfer of property. Unless the above mentioned essential elements are present in transaction,
it cannot be regarded as a transfer of property.
Family Settlement
Family settlement or family arrangement is not a transfer of property. In a joint family property
all the members have their specific shares but they are not separated and are held conjointly by
all of them. When a family settlement takes place, the already existing specific shares of the
members of the family are defined and separated in order to avoid any possible disputes. Thus, in
a family settlement there is a mutual agreement between the members of a family to hold their
respective shares separately. It simply acknowledges and defines the title for each member. In
Sadhu Madho Das v. Pandit Mukund Ram, the Supreme Court observed that family
arrangement is based on the assumption that there is an antecedent title of some sort in the
parties and the agreement acknowledges and defines what that title is. In Ramdeo Foods
Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, a memorandum of understanding was executed
to resolve the dispute between the members of a family. The Supreme Court held that such
memorandum agreed between the family members can be treated as family settlement and the
Court cannot interfere with this. The Court will not easily disturb it. Accordingly it was held as
family settlement and not as a transfer of property.
It is not necessary that a family settlement should be restricted to the members of the family
upon a particular degree. Such settlements can take place not only among the heirs of a particular
class, they can include persons outside the preview of succession.

In a family settlement since there is no creation of new title or interest in favor of any member,
there is no conveyance, therefore, it is not a transfer of property. Compromise A compromise of
doubtful rights is not a transfer but is based on the assumption that there was an antecedent title
of some kind in the parties which the agreement acknowledged and defined. The position would
be different if such a compromise also transferred properties to a person who has neither a pre
existing title nor a claim to such a title. In other words compromise is not a transfer of property.
Compromise means agreement for the settlement of doubtful claims between the parties in
respect of some property. Like family settlement, here too the titles or interests of the parties are
antecedent or already existing; the compromise deed simply defines them.Since there is no
conveyance in compromise it is not a transfer of property.
Partition
A partition of property is not a transfer of property, but is analogous to an exchange. In other
words partition means separating the parts of co-owned property. If in a property there are
several co-owners having, under the law, their respective interests but the whole property is
neither used nor enjoyed by them separately then, after the partition each member gets merely
the separate right of enjoyment46. Accordingly it has been held that partition is not really a
process by which a joint enjoyment is transformed into an enjoyment severally, and is involved
in the process as the conferment of a new title is notnecessary.It simply effects a change in the
mode of enjoyment of property but it is not anact of conveying property from one living person
to another. In Mohar Singh v. Devi Charan,the Supreme Court explained the legal nature of a
partition in the following words: Partition is not actually a transfer of property, but would only
signify the surrender of a partition of a joint right, in exchange for a similar right from the other
co-sharer or cosharers. Mookharjee, J., in Atrabanessa Bibi v. Safutullaah Mia, said that
partition signifies the surrender of a portion of a joint in exchange for a similar right from the co
sharer. In Sarin v. Poplai, Gajendragadkar, CJ., has observed that the true effect of partition is
that each coparcener gets specific property in lieu of his undivided right in respect of the totality
of the property of the family. For the purpose of determining whether the document is a
partition deed, it is the contents of the document that are to be taken in to consideration and not
the nomenclature alone. There is no recital in the whole order agreement to the effect that it was
recording the agreement of an earlier partition which had already taken place. The agreement in
question purported to create, declare, assign, limit and extinguish right and interest over

immovable properties. It was held that the document required to be duly stamped and properly
registered.
A father partitioned his property among his three sons. The agricultural land was given to one of
them, the plaintiff in the case. The pucca house was given to the two others. They were already
in possession of the property respectively as distributed under the partition and had been making
improvement in their respective shares. Thus they had been acting on the family settlement. They
had become bound by it. The Court said that it was immaterial that the mutation of the
agricultural land was in the name of all the three sons.
Surrender
Surrender is not a transfer of property as defined in the section.54 Surrender means merging of a
lesser interest with a greater interest in such a manner that the greater interest is not enlarged.
Surrender is therefore falling of lesser estate into greater. For example, A is landlord and B is his
tenant. A as landlord has ownership of the house. Ownership or absolute interest is a greater
interest. B as a tenant has also an interest in As house but Bs interest is lesser interest because
it is limited only to the right of enjoyment. Now, if B vacates the house before expiry of the term
of tenancy, it would amount surrendering of his right of residence. Here, the lesser interest,
namely the right of residence, which was away from the absolute interest of the landlord during
tenancy, comes back to ownership. There is no creation of any new title or interest in favor of the
landlord. Thus surrender by a tenant to the landlord or by a widow to the reversioners has not
been regarded as a transfer of property.
Release
Release is a transfer of property. Is a larger interest falls into a smaller interest in such a way that
smaller interest is enlarged then, for the holder of the smaller interest there is creation of a new
title or interest. Since some new titles or interest are added to transfer of property. Where a
person in whose favor the release is executed gets rights by virtue of the release, the deed
amounts to transfer. In Muniappa Pillai v. Periasami, after taking some money A executed a
deed transferring his right, title and interest in his half share of the property absolutely in favor of
B. the document, thus gave B absolute rights in the share which belonged to A and to which B
was not entitled. The Madras High Court held that this document clearly came under the
definition of deed of transfer within the meaning of Section 5. Since coparcenary property is a
joint property of all the coparceners therefore, a release in favor of only one or some of the

coparcener would be deemed to be a transfer in favor of all the coparceners. In M. Krishna Rao
v. M.L. Narasikha Rao, a release deed was executed in favor of some out of several coparceners.
The Andhra Pradesh High Court held that the release made in favor of some coparceners would
operate to the benefit of all the coparceners and not only in favor of those coparceners in whose
favor release was executed. The release in all the cases may be with or without consideration.
Relinquishment
Relinquishment is not alienation, unless intention to transfer is found to exist, as when it is in
favor of a person having no interest. A registered instrument styled as a release deed releasing
the right, title and interest of the executant in the proprietary in favor of the release for valuable
consideration may operate as a conveyance.
In other words, relinquishment means giving up of ones rights or interests. Its effect is
extinction of ones rights in a property; there is no intention that the person relinquishing his
interest is conveying that interest in favor of another person. Relinquishment is therefore, not a
transfer so that it may amount to a transfer of property as defined in Section 5 of the Act.64
Official Assignee, Madras v. Tehmina Dinshaw Tehrani, ,Charge is not a transfer of property.
Charge is created on a property for securing a payment out of that property. When the property
of a person is charged for securing certain payments e.g. maintenance, it is simply securing
personal obligation out of the property. A charge is, not transfer because the only right created
under it is a right to payment out of the property subjected to the charge.

1. Bibliography
2. Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004.
3. Nandi, N., The Transfer of Property Act, 1882, 2nd Ed., Dwivedi Law Agency,
4. Allahabad, 2010.
5. Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company
6. (P) Ltd., Allahabad, 1989.
7. Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency,
8. Allahabad, 2010.
9. Sohoni, Vishwas Shridhar, Transfer of Property Act, Premier Publishing Company,
10. Allahabad, 2008.
11. The Transfer of Property Act, 1882, Bare Act, Universal Law Publishing Co. Pvt.
12. Ltd., New Delhi, 2010.
13. Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2nd Ed., Wadhwa
14. and Company Nagpur, New Delhi, 2004.