Professional Documents
Culture Documents
TRANSFER OF PROPERTY
[PROJECT WORK]
SECTION 5 OF TPA
HARDIK ANAND
Table of Contents
Living Persons 3
In Present of In Future 5
To Himself 6
Family Settlement 6
Compromise 7
Partition 8
Surrender 9
Release 9
Relinquishment 10
Charge 11
Bibliography 12
The Transfer of Property Act, 1882
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.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
The Legislature has not attempted to define the word „property‟, but it is used in this
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Act in its widest and most generic legal sense. Section 6 says that „property of any kind may
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be transferred‟, etc. Thus an actionable claim is property; and so is a right to a reconveyance
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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
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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.
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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
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„property‟.
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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
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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
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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
15
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.‟
13 Usha Rani Kundu v. Agradut Sangha and other, AIR 2006 (NOC) 911 Cal.
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18
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
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property made in favor of a deity.
20
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
21
the terms of Section 122 and need not be made in writing or by a registered instrument
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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
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worldly goods as discussed in the case below.
25
In Bhupati Nath v. Ram Lal, 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 ancestor‟s 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
favor 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
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Property Act.
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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
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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.
28
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.
30
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.
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.
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
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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
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present in transaction, it cannot be regarded as a transfer of property.
Family Settlement
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37 38
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
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of some sort in the parties and the agreement acknowledges and defines what that title is.
40
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
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a particular class, they can include persons outside the preview of succession.
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
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and defined. The position would be different if such a compromise also transferred
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properties to a person who has neither a pre-existing title nor a claim to such a title.
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Partition
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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
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separate right of enjoyment . Accordingly it has been held that partition is not really a process by
which a joint enjoyment is transformed into an enjoyment severally, and no conveyance is
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involved in the process as the conferment of a new title is not necessary. It simply effects a
change in the mode of enjoyment of property but it is not an act of conveying property from one
48 49
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 co-
sharers.”
50
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.
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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
th
45 Mulla, The Transfer of Property Act, 9 Ed., LexisNexis Butterworths, 2004, p. 76.
th
46 Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 56.
47 Chanaderwati v. Lakhmi Chand, AIR 1988 Delhi 13.
48 Indoji Jethaji v. Kothapalli, (1919) 54 IC 146.
49 AIR 1988 SC 1365.
50 (1916) 43 Cal. 504, 509.
51 (1966) SCR 349; AIR 1966 SC 432.
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properties. It was held that the document required to be duly stamped and properly
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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
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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. 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 A‟s house but B‟s 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
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property.Where a person in whose favor the “release” is executed gets rights by virtue of the
release, the deed amounts to “transfer.”
59
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.
Relinquishment
In other words, relinquishment means giving up of one‟s rights or interests. Its effect
is extinction of one‟s 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.
57 Official Assignee, Madras v. Tehmina Dinshaw Tehrani, AIR 1972 Mad. 187.
58 Kuppuswami Chettiar v. Arumugam, (1967) 1 SCR 275, AIR 1967 SC 1395.
59 Thayyil Mammo & Another v. Ramunniram & Another, AIR 1966 SC 337.
60 See supra 62.
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Charge
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Bibliography
Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004.
Nandi, N., The Transfer of Property Act, 1882, 2nd Ed., Dwivedi Law Agency,
Allahabad, 2010.
Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company
(P) Ltd., Allahabad, 1989.
Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency,
Allahabad, 2010.
The Transfer of Property Act, 1882, Bare Act, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2010.
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2nd Ed., Wadhwa
and Company Nagpur, New Delhi, 2004.
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