ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW

‘‘TRANSFER OF PROPERTY”
1 GCT ASSIGNMENT

TOPIC: SECTION -5 TRANSFER OF PROPERTY

Submitted By: -

Name : HANZALA AHMED

th
Class : BALLB 4 Year Sec-B (7 Semester)

Faculty No : 17BALLB067

Enrolment No : GI1836

Submitted To: -
Dr I.A KHAN Sir

Professor, Faculty of Law

Aligarh Muslim University

 SYNOPSIS

TOPIC: SECTION 5 TRANSFER OF PROPERTY

1. INTRODUCTION

2. SECTION 5 OF THE TRANSFER OF PROPERTY ACT, 1882

3. CHARACTERISTICS OF TRANSFER OF PROPERTY

4. LIVING PERSON

5. IN PRESENT OR IN FUTURE

6. TO HIMSELF

7. FAMILY SETTLEMENT

8. NOT AMOUNTING TO TRANSFER OF PROPERTY

9. CONCLUSION

10. BIBLIOGRAPHY
INTRODUCTION OF TRANSFER OF PROPERTY

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According
to this section, 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 and other living persons.
The phrase “living person” includes a company or association or body of individuals, whether
incorporated or not, but nothing in this section shall affect any law for the time being in force
relating to or by companies, associations or bodies of individuals.

The word property in the Act has been used in one of the following senses:
(i) Tangible material things like house.
(ii) Rights which are exercised over material things like the right to sell or make a gift of things.
(iii) Rights which are not exercised over any material such as the right to repayment of a debt.

The expression transfer of property implies various meanings. One sense maybe transfers of
things such as the sale of a house. Another sense maybe transfer of one or more of the rights in a
thing such as mortgage of a house or transfer of a debt. Thus, if a new title has not been created
or some interest has not been transferred in favour of the Transferee, then the transfer of property
cannot take effect.

An analysis of section 5 helps us understand the meaning of the phrase, “transfer of property”.
Thus, transfer of property means an act which may take effect in the present or future. The property
in question must be in existence at the time the transfer takes place. Moreover, the conveyance of
the property must be from one living person to another.

SECTION 5 OF TRANSFER OF PROPERTY ACT

Section 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 himself 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 individuals.

The word ‘transfer’ has also very wide meaning. It may be either transfer of all the right and
interests in the property or transfer of one or more of subordinate right in the property.

The transfer of property as defined under Section 5, is an act between two living persons. Thus the
conveyance of the property must be from one living person to another living person. However
transferee need not be a competent person like transferor. A transferee may be a minor, insane or
child in mother’s womb.

The word “living person” includes corporations and other association of person. A transfer can be
made by a person to himself, as for instance when a person vests property in trust and himself
becomes the whole trustee.

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, 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 property.

CHARACTERISTICS OF TRANSFER OF PROPERTY

From above meaning and definition, we can find following characteristics of Transfer of
Property

• It is an act of conveyance.
 • Conveyance is inter-vivos means between living person.
• Property must be conveyed from one or more living person to Himself, or any another
living person.
• Property must be transferred in present or in future.
• The term “person” includes a company, an association, or body of an individuals,
whether incorporated or not.

For the transfer of property, the property must be conveyed from transferor to transferee

LIVING PERSON

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.

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.

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.
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.
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.” 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.
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.
Some illustrations are given below:

a-A makes a gift of his property to B. He does not mention to when B shall get the property and
also does not law down any condition. The transfer is present and B gets the property with
immediate effect.

b- A transfers his property to B for life and then to C. The transfer in favour of B is present
(although he gets only life-interest) but the transfer in favour of C is future transfer.

c-A makes a gift of his watch to B provided that B gets first division in the next 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.

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.

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.

TRANSFER OF PROPERTY ACT, 1882 NOT AMOUNTING TO

TRANSFER OF PROPERTY
As the transfer of property’ means ‘conveying of property’, i.e., creation of new title or interest
in the favour of the transferee, if new title or interest has not created in favour of transferee , the
property cannot be said to be conveyed, thus no transfer of property.

a- Partition- As nothing new is obtained by a co-sharer on partition, it is not a transfer of

property. His specific share, which vested in him earlier, is simply separated.

b- The only right created in a charge is a right to payment out of the property subjected to
charge, thus it is not a transfer.

c- Relinquishment- It is an extinction of a right and therefore, there is nothing left to transfer.

Thus, a relinquishment by a reversioner of his reversionary interest does not amount to transfer.
But if the person in whose favour the ‘release’ is executed, gets certain rights by virtue of such
release, the transaction may amount to a transfer.

d- Surrender- It is not a transfer as it is the manager of a lesser estate with a greater one.

e- Easement- The creation of an easement does not amount to a transfer.

f- Will- Because it operates from the death of the person making it, while the definition
contemplates a transfer by a living person, does not fall within the definition of transfer.

g- Compromise- It may or may not amount to transfer. It depends on the facts and
circumstances of each case. In Hussiaa Banu v. Shivanarayan, it was held that where one of
the parties to a settlement gives up a claim to receive a certain sum of money from the other, in
consideration of the latter’s given up the right to certain property claimed by him, it would
amount to a transfer.

h- Family arrangement/settlement- A family settlement entered into by the parties for the
purpose of putting an end to the disputes among family members does not amount to transfer, not
being an alienation, it does not amount to the creation of an interest.

CONCLUSION

Hence, it can now be clearly understood that the transfer of property is a multi-dimensional
concept. The person transferring the property and the person receiving the property become a part
of the transaction owing to their rights and legal obligations enshrined in the Transfer of Property
Act, 1882.

BIBLIOGRAPHY

1. https://blog.ipleaders.in/transfer-of-property/

2. https://www.legalbites.in/transfer-property-meaning-types/

3. Ankit Chaudhary, Transfer of Property, https://www.scribd.com/

4. Sinha, Dr.R.K., The Transfer of Property Act, 19th Ed., Central Law Agency,

Allahabad, 2019.