Table of Contents;

ACKNOWLEDGEMENT………………………………………………………………………………………………………….

ABSTRACTS....................................................................................................................................
INTRODUCTION;............................................................................................................................
HISTORY AND THE DEVELOPMENAT OF ORAL PROPERTY ACT......................................
UNDERSTANDING THE PROVISION THE TRANSFERV OF PROPERTY ACT;...................
ORAL TRANSFER OF PROPERTY UNDER THE TRANSFER PROPERTY ACT 1882...........
ANALYSIS OF TRANSFER OF PROPERTY ACT 1882(under section 9)...................................
Provision of Oral Transfer of property at the time of the marriage...................................................
MODE OF ORAL TRANSFER OF PROPERTY.............................................................................
ILLUSTRATION AND FEW LANDMARK JUDICIAL PRONOUNCIATION...........................
Coming to oral gifts.......................................................................................................................
Oral Family arrangements.............................................................................................................
ORAL AGREEMENT TO TRANSFER SAHARE IS ENFROCEABLE;.......................................

CONCLUSION..................................................................................................................................
ABSTRACTS

Going back in time before passing of the transfer of property act,writing was not
essential ingredient for transfer of property from one entity to another,

After the passing the act ,certain transaction are required to be in writing,transfer of
property act contains specific provisions regarding what constitutes a transfer and
discuss different condition attached to it.The act,came into force on 1 st july 1882
here I am merely focusing on Section 9 which talk about oral transfer of property

This termpaper is based on armchair research.

INTRODUCTION;

A transfer of property may be made without writing in every case in which a

writing is not expressly required by a law.This section provides that transfer may
be made without writing in every case in which writing is not expressly required
by law.it is general principle of law that every thing is to be taken as permissible
unless there is a prohibition against it.thus where a transaction is not required by
law to be in writing it may be brought about orally and writing shall not be
necessary.the object of writing is simply to preserve what the contracting parties
have prescribed for themselves.the writing preserves the intention of the parties in
their very words.1

1
Section 9, The Transfer of Property Act, 1882 56, (Bare Act)
HISTORY AND THE DEVELOPMENAT OF ORAL PROPERTY ACT
Going back in time before passing of the Transfer of Property Act, writing was not
an essential ingredient for Transfer of Property from one entity to another.(1) After
the passing of the Act, now certain specified transactions are required to be in
writing.(2) For example, if the statute requires a deed for transfer of Title of the
land, then the same cannot be passed by mere admission. Transfer of Property Act
contains specific provisions regarding what constitutes a transfer and discusses
different conditions attached to it. The Act, came into force on 1st July, 1882.

UNDERSTANDING THE PROVISION THE TRANSFERV OF PROPERTY

ACT;

Before coming to oral transfer of property, the researcher would like to throw some
light on what transfer of property means. Section 5 of T.P. Act{3} defines Transfer
of Property and by bare reading of the section it can be understood that the same
means an act by which a living person conveys property in present or in future to
one or more living persons, (including/excluding) himself. Here living person
according to Section 5 includes any person or a company or an association or a
body of individuals, which may or may not be incorporated. Now, the question that
arises in that what kind of properties can or cannot be transferred. (4) The Act does
not specify or has no exhaustive list to answer the same but section 6 of T.P.
Act{5} states that property of any kind may be transferred, except if states
otherwise in the act which essentially makes an exhaustive list of things which
cannot be called property and which cannot be transferred.2
2
Sumeetmalik,property law manualhard bound 2014 edition23 (eastern book company)
ORAL TRANSFER OF PROPERTY UNDER THE TRANSFER
PROPERTY ACT 1882
Definition
Section 9 of the Act talks about oral transfer of property. It states that,

This section essentially mandates that a transfer of property may be made without
writing in every case in which writing in not expressly mentioned/required by law
but it is also essential to note here that the act is not exhaustive of such kinds of
transfers.

In a very famous case of Sarandaya Pillay v Sankarlinga Pillai, Ramaswami J., of

Madras High Court observed “the test, therefore in this country to determine
whether a transaction (be it a transfer or not) can be made without writing is to see
if it is expressly required by law to be in writing. If the transaction is a transfer of
property and there is no express provisions of law requiring it to be in writing,
section 9 will enable it to be made without writing and vice versa” through which
an essential inference can be drawn and it can be said that if the transaction is a
transfer of property and there is no express provision of law requiring it to be in
writing then the general principle referred above will enable it to be validly made
without writing.

The reasoning of Section 9 underlines the general principles that everything is to

be taken permissible unless there is a prohibition against it and has been inserted in
the statute ex abdundanti cautela3

3
Ibid,25
ANALYSIS OF TRANSFER OF PROPERTY ACT 1882(under section 9)
As already mentioned in the introduction, this section talks about oral transfer of
property and has mentioned that transfer of property can be made without writing
in every case where writing is not expressly required by the statute.  Now, the next
question that arises is that when does the statute mandate the transactions to be in
writing. . Also under Section 5 of the Indian Trusts Act, II of 1882, transfers
which parties desire to register must be in writing. Gift of immovable property at
the time of marriage must also be registered and be in writing.

Provision of Oral Transfer of property at the time of the marriage.

It is also necessary to note here that Section 9 of T.P. Act would not apply to a case
of transfer of immovable property made at the time of marriage by a Hindu. It is
essential to note here that Transfer of Property Act clearly recognizes oral
transfers. Hence a simple deduction can be done here that an oral transfer of
property is a rule unless there is a law which expressly requires that the transfer
should be in writing. Now, movable property is not defined under Transfer of
Property Act but according to the interpretation clause that is section 3 of the
Transfer of Property Act, 1882, immovable property does not include standing
timber, growing crops or grass. Now the General Clauses Act, 1897 defines the
term movable property as property of every description, except immovable
property. Immovable property has been defined to include land, benefits arising out
of land or things attached to the earth or permanently fastened to anything attached
to the earth. Hence anything it can easily be inferred because the exhaustiveness of
the definition of immovable property that anything which is not covered under the
definition of it is a movable property including computer programs and other
intellectual property4

4
Ibid 27
MODE OF ORAL TRANSFER OF PROPERTY

 Under section 54, a sale of tangible immovable property of value more than
hundred Rupees (Rs 100/-) is required to be made, only by a registered
instrument.
 In Section 59 of the T.P. Act, a writing is necessary in the case of simple
mortgage or in case of all other mortgages except a mortgage by title-deed
deposit where the principal amount or sum secured in more than hundred
rupees (Rs 100/-).
 Also, in section 107, a lease of immovable property from year to year, or for
any term exceeding one year, or reserving a yearly rent, is required to be
made in writing.
 Section 130 mandates that all transfers of actionable claims have to be made
by writing and under section 118, all exchanges are subject to the same rules
as are applicable to sales.
 Gift of movable property.under section 123

Hence it can be deducted that when the law requires that there should be an
instrument in writing and the said instrument should be registered then the
ownership can only be transferred by that method. But, where no writing is
required by the Transfer of Property Act or any other law, the transfer may be
made orally.such transaction which do not involve strictly speaking a conveyance
viz.partition of joint family properly,family settlement release,a grant of land for
life in discharge of a claim for maintanence and surrender,delivery of a property to
a private limited company held by the company predecessor firm and acquired by a
promoter of the company on behalf the company to be floated can be effected
orally.5

5
Immudiapattam v. Periya Dorasami (1901) 24 Mad 377; Bishan Dial v Ghazi-ud-din. (1901) 23 All 175
In case imperial bank of India v.bengal national bank, CJ,rankin observed that
partition release and surrender are all form of transfer but so far as the transfer of
property concerned they come under no restriction.A property may be relinquished
orally,writing in immaterial.an easement can be created without writing either
under this section or under general principle of law because grant of an easemwnt
is not a transfer of ownership in immovable property.

A gift to a hindu idol is not a transfer to a living person and is not a transfer within
the meaning of section 5 of the act. Therefore,gift to an idol may be made orally
but property must be completely given away,similarly a wakf under muslim law
need not be in writing.6

ILLUSTRATION AND FEW LANDMARK JUDICIAL

PRONOUNCIATION
The section provides for oral transfer. Transactions which are not required by law
to be in writing can be made orally under this section without any writing. Writing
is necessary for the following transactions:

1. Sale of immovable property of value of Rs. 100 or upwards.

2. Simple mortgage of specific immovable property of any value.
3. Lease from year to year or for any term exceeding one year or reserving a
yearly rental.
4. Exchange of the value of Rs. 100 or upwards.
5. Transfer of actionable claim.

6
Section 5, The Transfer of Property Act, 1882
 6. Notice of transfer of actionable claim.

In the famous case of Narsinghdas v. Radhakisan it was held that a test to find out
whether a transaction can be made without writing is to see whether it is expressly
required by law to be in writing, which further substantiates our hypothesis and our
illustration of Section 9 of Transfer of Property Act, 1882.

Coming to oral gifts

In the case of Keshri Mull v Sukan Ram it was held that oral gift though
permissible under the section is not valid without delivery of possession. Validity
of oral partition was challenged in the case of Peddu Reddiar v. Kothanda Reddi
and the judgment finally upheld the validity of oral partition of property.
Subsequently, there have been various cases which established the fact that when
writing is not required by Act, transfer can be madeOral Family settlements

It has also been established by a three judge’s bench of the Supreme Court in a
case of allegations of fraud and undue influence, that family settlements can be
oral and there is no need to keep it in writing.7

Oral Family arrangements

The high court of Jammu & Kashmir has already substantiated that a family
arrangement need not be written and it can be oral too. A relinquishment by the
mother of her interest in the joint family property, even when the property consists

7
H N tiwari,transfer of property act 81( allahabad law agency )
of immovable property and the value of the share therein exceeds Rs. 100/-, can be
made without writing, and registered instrument is not required

A skimmed reading of the judgment in the case of Bhuta Singh v Mangu and Ram
Sarupv. Ram Dei also suggests that alienation needs no written instrument. It is
sufficient if the person entitled to the property does an act which necessarily results
in its transfer. All that the act provides for is that certain specified transfers shall
only be made in writing duly registered. An award relating to immovable property
need not be in 8

ORAL AGREEMENT TO TRANSFER SAHARE IS ENFROCEABLE;

The prior owner of a woman-owned business will be required to pay upwards of

$500,000 to an oppressed shareholder after a trial court found — and the Appellate
Division confirmed — that she had entered into a valid agreement to transfer her
shares in return for an agreement that allowed her to continue collecting her
husband’s salary while he was in prison.

Oppressed Shareholder Sues to Enforce Transfer AgreementThe unreported

decision in Dilworth v. Di Salvatore, Docket No. A-4492-14T2 (N.J. App. Div.
March 16, 2017) is interesting in a number of respects.  First, it presents a
case in which we see the results of failing to commit agreements among
the owners of a closely held business to writing.  It’s great for the litigators
but no so fortunate for the owners that failed to get it in writing.

8
Ibid,82
The opinion also rejects outright the concept that the Defendants in an oppressed
shareholder litigation are prohibited from using corporate funds to pay for for
defense counsel.  The corporation has a right and obligation to be represented by
counsel, the Appellate Division held, although there may ultimately be an
allocation between the corporation and the individual defendants.9

 Limited Liability Company Owners Seek to Preserve Status as Female-Owned Business.;

At issue in the litigation was Municipal Codes Inspections, Inc. (MCI), a business
that contracted to provide building inspections to municipalities.  Because of the
competitive advantages that may be available to a business in which the majority
owners are women, the corporation was owned by Debra DiSalvatore, while her
husband Louis provided the inspections.  Debra was officially the president, but
earned a modest income of just more than $10,000.

The Defendants (the legal owner and her husband) wanted to hire the another
building inspector who was already contracting with a half-dozen municipalities.
The inspector, Jay Dilworth, wanted equity.  To keep the business’ status as
woman-owned, however, a 50 percent interest was transferred to Dilworth’s wife,
Debra, in his place.

Louis and Jay continued to provide the inspection services and Marie earned a bit
more than $10,000 as the office manager.  The business was quite successful,
having sales of $1.2 million in 2010.  Until, that is, Louis was convicted of tax
evasion and sentenced to prison

The Dilworths agreed that because of Louis conviction, he would pay his salary to
his wife Marie for a period of two years after which Marie would transfer her

9
Mohamed Musa v Aghore Kumar Ganguli, (1915) 42 Cal
shares to Debra and the DiSalvatore family would be out of the business. As a
result, Marie’s salary jumped from about $10,000 to $180,000.

When the two years was up, however, the DiSalvatores declined to transfer the
shares, and Marie denied that any such agreement was every made. Jay Dilworth
quit and the revenue of the business dropped by 75 percent.  Debra and Jay filed
suit alleging several theories, including that Debra was an oppressed minority
shareholder

 Fifty Percent Owner is Minority Shareholder;

The appellate division left undisturbed the trial court’s holding that Debra, as a 50
percent shareholder, was a minority because she lacked a controlling interest and
that the behavior that followed the oral agreement was oppressive.  Debra had a
reasonable expectation after that agreement was made to receive financial
information, to receive dividend income and to not have Marie misapply corporate
funds.The Court affirmed an award of $410,469 to Debra in compensatory
damages and $12,508 to jay.10

10
Ibid,
CONCLUSION

The Transfer of property Act, 1882 is an Indian legislation which regulates the
transfer of Property in India. Through numerous case laws and illustrations, the
researcher has consolidated the fact that Section 9 of the said Act deals with oral
transfer of property and has also discussed what can or cannot be transferred
orally. It is further notified to the readers that there is no law which says that the
seller must sell the property at market rate. He can always sell at any rate of his
choice. The only constraint that is imposed on him would be to pay the stamp duty
required to be paid on the prices fixed by the Ready Reckon of the Government so
that there could be no loss of Government Revenue. The sale deed cannot become
void for inadequacy of prices after the parties have mutually accepted the prices as
the correct Also it is important to note here that every person, who is
competent to contract , is competent to transfer the property either in whole or in
part. The right of the person can be absolute or conditional or can be immovable or
movable depending upon the nature of the property. But, there are certain
conditions that must be satisfied for a transfer of Property. There must be a
representation by the one who is transferring (the Transferor) that he has the
applied authority to transfer the immovable property. The representation should not
either be fraudulent or erroneous. The transferee must act in good faith and the
property should be transferred with some consideration which is valid in the eyes
of law which essentially will vest the transferee’s interest in the property and the
transferor should have interest in the property which he had agreed to transfer