Aligarh Muslim University

Malappuram Campus,
Kerala.
Session 2021-22

Project

On
Transfer Of Property

Submitted by: Submitted to:

Akshun Agrawal Dr. Naseema P.K.

Roll NO -18BALLB60 Assistant Professor

Enroll No - GL0743 AMU Malapuram Centre

VIIth Semester Department Of Law

…………………………
(Signatur

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 Declaration

I, Akshun Agrawal, hereby declare that this project titled “Transfer

Of Property” is based on the original research work carried out by me
under the guidance and supervision of Dr. Naseema P.K.

The interpretations put forth are based on my reading and

understanding of the original texts. The books, articles and websites etc.
which have been relied upon by me have been duly acknowledged at the
respective places in the text.

For the present project which I am submitting to the university, no

decree or diploma has been conferred on me before, either in this or in
any other university.

Date-27/10/2021

Signature
Akshun Agrawal
Semester VIIth

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 CERTIFICATE

Dr. Naseema P.K.,

Assistant Professor,
AMU MC,
Aligarh Muslim University,
Malappuram, Kerala.

This is certify that Akshun Agrawal student of Semester VIIth of AMU

MC, Aligarh Muslim University has carried out the project entitled “Transfer Of
Property” under my supervision and guidance. The student has completed
research work in my stipulated time and according to the norms prescribed for the
purpose.

[Supervisor]

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 Acknowledgement

I have written this project titled “Transfer Of Propery” under the

supervision of Dr. Naseema P.K., Faculty of AMU MC, Aligarh Muslim
University, Malappuram Centre, Kerala. Her valuable suggestions herein
have not only helped me immensely in making this work but also in
developing an analytical approach to this work.

I found no words to express my sense of gratitude for my Friends And

Parents especially Mother. Her constant encouragement at every step helped
me to complete my project.

I am extremely grateful to you for your Video Lectures to the support

and cooperation extended by you from time to time.

Akshun Agrawal

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 TABLE OF CONTENT

S No. Content Page No.

1. Title Page 1

2. Declaration 2

3. Certificate 3

4. Acknowledgement 4

5. Content Page 5

6. Introduction 6

7. Kind of Transfer 8

8. 10
What is Transferred

9. Operation Of Transfer 13

10. Transfer By an Unauthorized Person 21

11. Discussion & Conclusion 17

12. Bibliography & References 18

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 Introduction

Under the Indian legal system, properties are divided into two
categories – movable and immovable. The Transfer of Property Act
(ToPA), 1882, which came into force on July 1, 1882, deals with the
aspects of transfer of properties between living beings. One of the
oldest laws in the Indian legal system, the Transfer of Property Act is
an extension of the law of contracts and runs parallel to the succession
laws.
For those planning to transfer their immovable property, knowing
the key aspects of the Transfer of Property Act is quite important
Section 5 of the Transfer of Property Act, 1882 defines that, the
property will be delivered by a living person to one or more other
people in the present date or in future times or to himself only. The
expression mentioned above “in present or in future” is deriving the
meaning of the word ‘deliver’.
There will be no transfer of future property. The transferee
needn’t be a competent person like a transferor. A transferee can also
be a minor, insane or child in a mother’s womb. Property has a very
wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right
considered as a source or element of income or wealth.
The right and interest which a man has in lands and chattels to the
exclusion of others. It is the right to enjoy and to dispose of certain
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 things in the most absolute manner as he pleases, provided he makes no
use of them prohibited by law.
The sea, the air, and the like, cannot be appropriated; every one
may enjoy them, but no one has any exclusive right in them. When
things are fully our own, or when all others are excluded from meddling
with them, or from interfering about them, it is plain that no person
besides the proprietor, who has this exclusive right, can have any claim
either to use them, or to hinder him from disposing of them as he
pleases; so that property, considered as an exclusive right to things,
contains not only a right to use those things, but a right to dispose of
them, either by exchanging them for other things, or by giving them
away to any other person, without any consideration, or even throwing
them away.
Basically Property is divided into real property, and personal
property. Property is also divided, into absolute and qualified, when it
consists of goods and chattels.
Absolute property is that which is our own, without any
qualification whatever; as when a man is the owner of a watch, a book,
or other inanimate thing: or of a horse, a sheep, or other animal, which
never had its natural liberty in a wild state.
Qualified property consists in the right which men have over wild
animals which they have reduced to their own possession, and which
are kept subject to their power; as a deer, a buffalo, and the like, which
are his own while he has possession of them, but as soon as his

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 possession is lost, his property is gone, unless the animals, go animo
revertendi.
Property is again divided into corporeal and incorporeal. The
former comprehends such property as is perceptible to the senses, as
lands, houses, goods, merchandise and the like; the latter consists in
legal rights, as chooses in action, easements, and the like.
It is proper to observe that in some cases, the moment that the
owner loses his possession, he also loses his property or right in the
thing: animals ferae naturae, as mentioned above, belong to the owner
only while he retains the possession of them. But, in general,' the loss
of possession does not impair the right of property, for the owner may
recover it within a certain time allowed by law.

Kinds Of Transfer
Subsequent forms of transfer under the Act are:
• Sale– It’s an out-and-out transfer of property And also the
consideration is money.
• Mortgage– It’s a transfer of a limited interest during a property.
• Lease– A lease may be a transfer of a right to enjoy the
immovable property for a particular time.
• Exchange– It’s the same as sale, but differ in consideration.
Here the consideration is another thing not money.
• Gift– Here, there’s no consideration.

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 Which Is Not Amounting To The Transfer Of Property?
Another meaning of transfer of property is “Conveying the
property”. A fresh interest within the mind of the transferee, if new
interest has not been created in mind of the transferee, the property can
not be said to be conveyed, thus no transfer of property is finished.
• Partition- When two blood relatives like brother and brother
dividing their property between themselves is called partition. And it
can’t be transfer of property because that property was already in their
own possession and no new property is created.new is formed by co-
sharer on the partition, it’s not a transfer of property. His specific share,
which settled in him earlier, is just separated.
• Relinquishment (sacrifice)- Here, there is nothing to transfer,
because in this, the successor who was the owner of that property, he
sacrificed that property to his/her closet person, the transferee may be
one or more then one. Therefore, those who got the profitable property
they can enjoy over that.
• Surrender- A transferor has a contract to transfer some property
with a minor. But, if the guardian of the minor has a condition with
another person then it will not be a transfer of property.
• Easement- The creation of an easement doesn’t amount to a
transfer.
• Will- Because it comes from the death of the person making it,
while the definition of transfer is for the future by a living person, it
doesn’t come under the definition of transfer.

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 • Compromise- It depends on the facts and circumstances of every
case. It may or might not amount to transfer.
• Family arrangement/settlement- Any family problem arises
about their property, then if a third person came and solved that
problem and put an end to the disputes is not amounting to transfer of
property.

What Is Transferred?
Section 6– “ Any types of property which can be additionally
transferred, except provided by this act or by any other law for
nowadays in effect”.
This section specifies different types of property which can not be
transferred (Exception to Section 6)-
Spes Successionis [Section 6(a)]- “The possibility that an heir
apparent is clearly unsuccessful in a certain situation, that the
possibility in a relationship, receiving an ancestral property by the death
of an ancestor or in another natural event, then the transfer can not be
performed.”
• Any opportunity for the heir apparent to succeed under certain
conditions is not included in the category of assets that can be
transferred.
• For e.g, ‘X’ a Hindu, dies and leaves his wife with ‘C’. ‘C’ has
only a spes succession, his succession depends upon two factors, that
the surviving of the X’s wife and the property which was left by ‘X’.

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 • Right of Re-entry [Section 6(b)]- “A simple right of re-entry for
breach of a condition following can not be transferred to anyone except
the owner of the property.”
• Easement [Section 6(c)]- “An easement can not be transferred
except from the dominant heritage.”
• An easement right to use, or restrict the utilization of land of
another in their way, for example- the right of way, right of water or
light, etc. (Section 3 Easement Act).
• Restricted Interest [Section 6(d)]- “A right of the owner is
strictly prohibited in its enjoyment to him or her personally can not be
transferred to any other.”
• E.g- A man can not transfer the right of enjoyment of the home
to any different person. If the home is lent to the man for his personal
use.
• Maintenance [Section 6(d)]– “A right of a person to his future
maintenance, in whatever manner it would arise, that should be secured
or determined, and can not be transferred to anyone.”
• Mere right to sue [Section 6(e)]- “A mere right to sue can not be
transferred to anyone.”
• A right to sue is a personal possibility for the injured..
• Public office [Section 6 (f)]- “A public office cannot be
transferred to anyone because, it’s a public property and the person who
has the qualities, they should only enjoy the rights of the office not all.
And always changes and pays for work not for the office.”

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 • Pensions [Section 6(g)]- “Stipends are allowed only for the
military, air force, naval and civil pensioners of the govt. and political
pensions that can not be transferred to anyone, pension means a
periodical allowance or stipend which they will get after their job is
over.
• Nature of Interests [Section 6(h)]- “There is no transfer on this
point because it against the nature of the interest affected thereby, or as
far as unlawful object or consideration within the meaning of Section
23 of the Indian Contract Act, 1872, or to someone who is legally
disqualified to be a transferee.”
• This clause restricts the transfer with anyone which is in nature
and isn’t transferable, e.g- res communes (things are also utilized by all
men, which nobody specifically is the owner), res nullius (things
belonging to nobody).
• Untransferable interests [Section 6(i)]- “In this section it is not
mentioned that, to authorize a tenant it is compulsory to have an non-
transferable right of occupancy, like the farmer has a condition to pay
the revenue, in which there are some conditions are also on the lessee,
under the supervision of a Court’s department”.

When A Person Competent To Transfer?

Section 7 of the Act provides that, “the person who is allowed to sign
a contract is also allowed to transfer a property and then he will be allowed

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 to enjoy the property wholly after it takes place. Legally permitted and
determined for the time being in force.”
These are some persons can be competent to transfer:
• Competent to contract, sound mind, the transferor must be entitled to
transferable property.

Operation Of Transfer
Section 8 of the Transfer of Property Act provides transfer of various
types of property and their legal incidents. It means that “A transfer of
property passes to the transferee with all the interest which the transferee is
then capable of using the property in his/her future within the all legal
incident.”In any situation, where the property is related to land or the
property is rented, then the transferor and transferee should make a plan
about the outcomes of the property which will be generated after the transfer
takes place. After that, there will be no problem arising in the future and if
the property generates money, then the income can be calculated after the
transfer takes place.

Section 6(a) of the Act provides certain rules which are non-
transferable (spes succession). These are as follows-
• The possibility of a person who is most likely to get the
ancestral property after his or her ancestor’s death under certain
situations.
• The probability of a relationship obtaining a legacy(gift) on the
death of a blood relative.
• Another mere possibility from nature.
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 • Chance of an Heir Apparent
The expectation forbids both Hindu Law and Muslim Law. A
mere possibility of an heir succeeding to a condition is eliminated
from the class of transferable property. A Hindu successor has no
right. In presents within the property which the female owner holds
forever for her life.
• Chance of Legacy(gift)
The chance of getting a gift has more possibility of being
non-transferable than getting the ancestor’s property as a legal
heir.
• Chance of nature
This rule has more possibilities of being non-transferable
than the other two, which are mentioned above.
E.g- The chance of winning a prize from a certain
competition, which cannot be transferred in the property.

Transfer By An Unauthorised Person

A person, who has no right to transfer any immovable property, cannot
transfer that property. Transfer by such person will be called the transfer by
an unauthorized person.
• Section 43– Transfer by unauthorized persons means, where
someone fraudulently shows that he’s authorized for the transfer of certain
immovable property and declares to transfer such property for consideration
such transfer shall at the choice of the transferee.E.g,- ‘X’, the son of ‘Y’.
‘X’ has separated from his father. ‘X’ sells 4 fields to ‘Z’ that ‘A’, ‘B’, ‘C’,
‘D’, representing that he is authorized to transfer the same. From these fields
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 ‘C’ does not belong to ‘X’, it has been retained by ‘Y’ on the partition. But
on Y’s dying ‘X’ as heir obtains ‘C’. ‘Z’, not having revoked the contract of
sale, may require ‘X’ to deliver ‘C’ to him.
The general rule of Nemo dat quod non-habet (no one can give to
different person, what he himself doesn’t have the rights)has been relaxed
through this section,
For the applying of this section following must be satisfied:
• There must be a fraudulent representation of ownership by the
transferor.
• Transfer must be by the incorrect owner.
• The transferee must act on it false representation in good faith.
• The transfer is for consideration.
• The property which someone professed to transfer subsequently
acquires some interest in that property.
• The contract of transfer still subsists.
• Subsequently acquired interest doesn’t pass automatically to
transferee but only if he claims right in such property.
• The exception to the present section protects the rights of the record
transferee in good faith and also the consideration who has no notice of the
choice in favour of the primary transferee.
A legal question on Transfer of Property Act, 1882

Can You Transfer A Property You Are Going To Inherit?

Legally, a son, who is hoping to inherit the property of his father can
not transfer his rights of this property to any other person, till his father is
alive. If a person promises to transfer his right over his future property to
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 someone else when he will get the ownership, the contract between those
two parties will be void. However, you can never make a contract to gift a
property which you are hoping to get in future. Transfer of your future
property as a gift without receiving any consideration will be void.

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 Conclusion
Section 6(a) and Section 43 have some problems with each

other. Where Section 6(a) deals with spes successionis and

defined that which property are untransferable property and which

are not, whereas Section 43 deals with the unauthorized transfer

of property, in such transfer very big problem will arose on behalf

of transferee because the transferee had no idea that the property

is unauthorized and the transferee will take that property in good

faith which is wrong. In this Act, if a transferor wants to transfer

anything then he or she has to think clearly about the possibility

of doing something which he has to sought to be conveyed to the

transferee about the property.

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 Bibliography & References:

a) Books:

i. V.P. Sarathi's Law of Transfer of Property Including

Easements, Trusts andWills by Mallika Tal
ii. Dr. R.K. Sinha's The Transfer Of Property Act - Twenty
First edition(2021) published by Central Law Agency
Paperback

b) Websites:

i. www.westlawindia.com
ii. www.advocatekhoj.com
iii. www.lexology.com
iv. www.manupatra.com
v. www.indiakanoon.com

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