You are on page 1of 29

Sr. No. Topics Page No.

1. Basic Concept of Law of Property 03-06

2. The Transfer of Property Act, 1882 07-10

3. Transfer of Property By Act of Parties 11-14

4. Sales of Immovable Property 15-21

5. Exchange of Property and Money 22-23

6. Gifts of Immovable Property 24-29

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 2
Basic Concept of Law of Property

 Concept of Property
 Kinds of Property
 Introduction of Law of Property
 Pakistani Statutes and Constitutional Provisions regarding Law of
Property

-------------------------------------------------------------------------------------------------------------- 

1. Concept of Property:

Property means the thing in respect of which a right of proprietorship may


be asserted. Property includes both movable and immovable and every
possible interest which a party may have in property, including abstract
and concrete.1 Therefore, a decree of a court is property.2

In simple words, property means (i) the thing itself, or (ii) some or all the
rights in a thing.

2. Kinds of Property:

There are following different kinds of Property:

I. Tangible, Visible and Corporeal Property.

Tangible property means such property which can be perceived and has
physical existence. E.g. Book, Computer, Mobile and Pen are the
examples of tangible property.

II. Intangible, Invisible and Incorporeal Property:

1
PLD 2011 SC 44; PLD 1958 Lahore 706
2
AIR 1951 Hyd. 1

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 3
Intangible property means such property which has no physical existence.
So, it cannot be perceived. E.g. Good will, Patent right, Literacy copy right
and Musical copy right.

III. Movable Property:

Movable property is such property which can be moved or displaced from


one place to another. E.g. Pen, Book, Bicycle, Car and Cell phone.

IV. Immovable Property:

Immovable property is such property that cannot be moved or displaced


from one place to another. E.g. land, things attached to earth, permanently
fastened to anything attached to the earth, building, right to way etc.

Salmond says immoveable property must have following elements:

i. It must have some portion of earth’s surface.

ii. The ground beneath the surface down to the center of the earth.

iii. The space above the earth.

iv. All objects attached to the earth whether natural or unnatural.

v. All objects permanently attached to piece of earth e.g. walls, doors,


bricks etc.

V. Absolute Property:

When a person has full and complete title and control over a property, it is
known as “Absolute Property”.

VI. Lost Property:

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 4
When a property does not longer remain in the possession of a person due
to accident, negligence or carelessness and that property cannot be located
by any ordinary and diligent search.

VII. Sole Property:

When a property is held by one person, it is called “Sole Property”.

VIII. Joint Property:

When a property is held by two or more persons, it is called “Joint


Property”.

3. Introduction of Law of Property:

Law of Property means such principles, policies, and rules by which


disputes regarding property are to be resolved and by which property
transactions may be structured.

What distinguishes property law from other kinds of law is that property
law deals with the relationships between and among members of a society
with respect to “things.”

4. Pakistani Legal Enactments and Constitutional Provisions


regarding Law of Property:

There are following legal enactments regarding Law of Property:

I. The Transfer of Property Act, 1882:

The Transfer of Property Act, 1882 provides a clear, systematic and


uniform law for the transfer of immovable property between living

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 5
persons. This Act is an extension to the Contract Act 1872, since it is an
enacted law for transfers that take place in the consequence of a contract.

II. The Land Acquisition Act, 1894

The main objectives of this Act are to ascertain landowners and other
affected families have to go through minimal disturbance, the process to
acquire land can only be undertaken in contemplation with the local
government and to ensure that compensation offered to the affected
families is adequate.

III. The Registration Act, 1908

The object of The Registration Act, 1908 and registering a document is,
firstly, to give discipline and public notice to the world that such a
document has been executed, secondly, to prevent fraud and forgery and,
thirdly, to secure that every person dealing with property, where such
dealings require registration, may rely with confidence upon the
statements contained.

Constitutional Provisions about Law of Property are as under:

I. Article No. 23 of the Constitution of Islamic Republic of


Pakistan, 1973.
II. Article No. 24 of the Constitution of Islamic Republic of
Pakistan, 1973.



This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 6
The Transfer of Property Act, 1882

 Basic Introduction of TPA 1882


 Salient Features of TPA, 1882

-------------------------------------------------------------------------------------------------------------- 

5. Basic Introduction of TPA 1882:

The Transfer of Property Act, 1882 provides a clear, systematic and


uniform law for the transfer of immovable property between living
persons. This Act is an extension to the Contract Act 1872, since it is an
enacted law for transfers that take place in the consequence of a contract.

6. Salient Features of TPA, 1882:

Important Salient features of The Transfer of Property Act, 1882 are as


under:

I. Scope

Scope of TPA is limited to law relating to transfer of property by act of the


parties from one living person to another. It does not deal law relating to
inheritance and other transfers by operation of law.

II. Parties of Transfer of Property:

Transfer of property must be done by a competent person: For a valid


transfer, it is necessary that the person should be of a sound mind, should
not be intoxicated, must be a major or he is not a person disqualified by
law cannot enter into a contract of transfer of property with another
person.

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 7
For a transfer of property, there must be a transfer between living or a
juristic person. Therefore, a property may not be transferred to a dead
person or unborn child.

III. Transferable Property:

The Property must be transferable; otherwise act of transfer of property


will be void. Following properties cannot be transferred in the light of
TPA, 1882:

i. Right of Easement
ii. Such interest of property which enjoyment is restricted to the owner.
iii. Political pension, public office and the salary of the public officer.
iv. Right to Sue
v. Stipends to military, navy or the airforce, political pensioners and
civil pensioners
vi. Against the natural interest
IV. Prescribed Form:

The transfer of following property must be in writing:

i. Sale of movable property value more than a hundred rupees.

ii. Sale of intangible property

iii. All mortgages which are more than a hundred rupees

iv. The transfer of actionable claims

v. A gift in a form of immovable property.

vi. Lease of immovable property exceeding more than one year.

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 8
V. Conditional Transfer of Property:

Under Section 25 of the transfer of property Act, 1882, the property can
be transferred complying to the condition mentioned. If the condition
becomes impossible, forbidden by law, opposed to public policy, or is
immoral the transfer would be held void.
Illustration: A is interested in purchasing B’s property but B sets a
condition that A in order to purchase B’s property has to kill C here the
transfer is through unlawful act, therefore, the transfer would be held
void.

VI. Kinds of Transfer:

Different kinds of transfer of property are as under:

i. Sale:

There is a transfer of ownership from the seller to the purchaser in


exchange for the price. Delivery of tangible property from the seller to the
buyer is the example of this kind of Transfer.

ii. Mortgage:

The property transferred from mortgagor to the mortgagee in the form of a


mortgage where the immovable property is mortgaged to secure a loan.
The mortgagor has to pay the principal loan along with the interest to
release the immovable property from the mortgage.

iii. Leases:

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 9
The possession of the property is being transferred from one person to
another person for a fixed price in this scenario there is no transfer of
ownership.

iv. Exchange:

When two persons mutually decide to transfer immovable property it


would be referred to as an exchange of property.

v. Gift:

According to the transfer of property Act, 1882, gift refers to a transfer of


movable or immovable property violently or without the consideration, by
one person that is donor. Transfer is accepted by and on behalf of the
donee.



This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 10
Transfer of Property By Act of Parties

 Definition of Transfer of Property


 Non-transferable Property
 Persons Competent to Transfer
 Operation and Effects of Transfer
 Oral Transfer of Property

------------------------------------------------------------------

7. Definition of Transfer of Property:


“Transfer of Property” is defined in the following words in Section 5 of
The Transfer of Property Act, 1882:

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 other
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 both in
herein contained shall affect any law for the time being in force
relating to transfer of property to or by companies, associations
or besides of individuals.

Definition of “Transfer of Property” in simple words is as under:

“Transfer of property” means an act by which a living person conveys


property to one or more other living the persons. “Living Person” includes
a juristic person such as a corporation.

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 11
8. Non-transferable Property:
Property of any kind, movable or immovable, tangible or intangible, may
be transferred, except as otherwise provided by this Act or by any other
law for the time being enforce. Section 6 of TPA 1882 enumerates the
following to be non-transferable:

i. Chance of succeeding to an estate cannot be transferred unless the


right has not actually come into existence by the death of the present
owner.
ii. A mere right of easement apart from the dominant heritage
(principal subject).
iii. An interest in property restricted its enjoyment to the owner
personally. So, personal Inaam is non-transferable3.
iv. A right to future maintenance.
v. A mere right to sue for damages, for breach of contract or tort.
vi. A public office or the salary of a public officer
vii. Stipends allowed to military, naval , air-force, political pensioners
and civil pensioners
viii. Transfer of property for unlawful object or consideration.
ix. Right of Tenancy cannot be transferred by the tenant.
9. Persons Competent to Transfer:
The transferor must be:

i. Competent to Contract, i.e., must be major and sound mind.


ii. Full owner of the property or legally authorized to transfer it on
behalf of the person having title to the property.4

3
AIR 1922 Mad. 197.
4
Section 7 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 12
10. Operation and Effects of Transfer:

Unless a different intention is expressed or necessarily implied, a transfer


of property passes forthwith to the transferee all the interest in the property
which the transferor is at the time of the transfer capable of passing and
the accessories or legal incidents which follow the said property shall also
be passed on along with the principal property.

For instance, if a house is sold, following interests shall also stand


transferred.

i. the easements annexed thereto


ii. the rents and profit thereof accruing after the transfer, and
iii. all things attached to the earth5
11. Oral Transfer of Property:

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


writing is not expressly required by law.6

The transfer of following property must be in writing:

vii. Sale of tangible immovable property of the value of Rs. 100 or


upwards7

viii. Sale of intangible property8

ix. All mortgages for the security of Rs. 100 or upwards9

5
Section 8 of The Transfer of Property Act, 1882
6
Section 9 of The Transfer of Property Act, 1882
7
Section 54 of The Transfer of Property Act, 1882
8
Section 54 of The Transfer of Property Act, 1882
9
Section 59 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 13
x. Lease of immovable property from year to year or, for any term
exceeding one year10
xi. Exchange of immovable property of the value of Rs. 100 or
upwards11

xii. Gift of immovable property12

xiii. The transfer of actionable claim13



10
Section 107 of The Transfer of Property Act, 1882
11
Section 118 of The Transfer of Property Act, 1882
12
Section 123 of The Transfer of Property Act, 1882
13
Section 131 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 14
Sales of Immovable Property

 Definition and Basic Ingredients of Sale


 Sale How Made
 Contract for Sale
 Difference Between Sale and Contract of Sale
 Rights and Liabilities of Seller
 Rights and Liabilities of Buyer
 Marshalling

------------------------------------------------------------------

12. Definition and Basic Ingredients of Sale


In the light of The Transfer of Property Act, 1882 “Sale” is a transfer of
ownership in exchange for a price paid or promised or part-paid and
part-promised.14
The essential ingredients of Sale are as under:

i. Competence of Parties to enter the transaction


ii. Transferability of the Subject-matter
iii. Transfer of the property
iv. Payment of price or consideration

In simple words we can say that “Sale” is the transfer of ownership from
seller to purchaser in exchange for the price.

13. Sale How Made:

14
Section 54 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 15
Such transfer, in the case of tangible immovable property of the value of
one hundred rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one


hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller


places the buyer or such person as he directs, in possession of the
property.15

14. Contract for Sale:

A contract for the sale of immovable property is a contract that a sale of


such property shall take place on terms settled between the parties. It does
not, of itself, create any interest in or charge on such property.16

In easy words it also can be said that; A contract for the sale of
immoveable property is a contract that a sale of such property shall take
place on terms settled between the parties. It does not, of itself, create any
interest in or charge on such property. Thus the title in the property passes
only upon the delivery of possession or registration of the document. In a
contract for sale, some equities do arise in favor of the transferee.

15. Difference between Sale and Contract of Sale:

Important points of difference between Sale and Contract of Sale are as


under:

15
Section 54 of The Transfer of Property Act, 1882
16
Section 54 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 16
i. A sale under TPA of immovable property is a transfer of ownership.
A contract for the sale of immovable property is a mere agreement
that a sale of the property is to take place in the future on terms
settled between the parties
ii. A sale under TPA creates a right in rem. A contract for sale creates a
right in personam.
16. Rights and Liabilities of Seller:

In the absence of a contract to the contrary, the buyer and the seller of the
immovable property respectively are subject to the liabilities, and have the
rights, mentioned in the rules next following or such of them as are
applicable to the property sold.

5.1. Liabilities of Seller:

Different liabilities and duties of Seller are as under:

The seller is bound

i. To Disclosure Material Defects:

The seller is bound to disclose to the buyer any material defect in the
property or in the seller’s title thereto of which the seller is, and the buyer
is not, aware, and which the buyer could not with ordinary care discover;

ii. To Produce Title-Deeds:

The seller is bound to produce to the buyer on his request for examination
all documents of title relating to the property which are in the seller’s
possession or power;

iii. To Answer Questions Regarding Title:

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 17
The seller is bound to answer to the best of his information all relevant
questions put to him by the buyer with respect to the property or the title
thereto;

iv. To Execute Conveyance:

On payment or tender of the amount due in respect of the price, to execute


a proper conveyance of the property when the buyer tenders it to him for
execution at a proper time and place;

v. To take Care the property Till Delivery:

Between the date of the contract of sale and the delivery of the property, to
take as much care of the property and all documents of title relating thereto
which are in his possession as an owner of ordinary prudence would take
of such property and documents;

vi. Possession of The Property:

The seller is bound to give, on being so required, the buyer, or such person
as he directs, such possession of the property as its nature admits;

vii. To Pay Public Charges and Rent up to Completion of Sale:

The seller is bound to pay all public charges and rent accrued due in
respect of the property up to the date of the sale, the interest on all
encumbrances on such property due on such date, and,except where the
property is sold subject to encumbrances, to discharge all encumbrances
on the property then existing.

5.2. Rights of Seller:

Basic rights of Seller are as under:


This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 18
5.2.1. Rents and Profits:

The Seller is entitles to the rents and profits of the property till the
ownership thereof passes to the buyer.

5.2.2. Charge on Property:


where the ownership of the property has passed to the buyer before
payment of the whole of the purchase-money, to a charge upon the
property in the hands of the buyer, any transferee without consideration or
any transferee with notice of the non-payment, for the amount of the
purchase money, or any part thereof remaining unpaid, and for interest on
such amount or part from the date on which possession has been delivered.

17. Rights and Liabilities of Buyer:


a. Liabilities of Buyer:

Basic liabilities and duties of buyer are as under:

i. Disclosure of Defects:

The buyer is bound to disclose to the seller any fact as to nature or extent
of the seller’s interest in the property of which the buyer is aware, but of
which he has reason to believe that the seller is not aware, and which
materially increases the value of such interest.

ii. Payment of Price:

The buyer is bound to pay or tender, at the time and place of completing
the sale, the purchase-money to the seller or such person as he directs.
Provided that, where the property is sold free from encumbrances, the
buyer may retain out of the purchase money the amount of any

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 19
encumbrances on the property existing at the date of the sale, and shall pay
the amount so retained to the persons entitled thereto.

iii. To Bear any Loss:

The buyer is bound to bear any loss arising from the destruction, injury or
decrease in value of the property not caused by the seller, Where the
ownership of the property has passed to the buyer.

iv. Payment of The Public Charges:

The buyer is bound to pay all public charges and rent which may become
payable in respect of the property, the principal money due on any
encumbrances subject to which the property is sold, and the interest
thereon afterwards accruing due, where the ownership of the property has
passed to the buyer, as between himself and the seller.

b. Rights of Buyer:
i. Right to the Benefit of any Improvement:

The buyer is entitled to the benefit of any improvement in, or increase in


the value of, the property, and to the rents and profits thereof, where the
ownership of the property has passed to the buyer.

ii. Right to Perform the Contract:

The buyer is entitled to compel the seller to perform the contract and
deliver the subject-matter to buyer.

18. Marshalling:

If the owner of two or more properties mortgages them to one person and
then sells one or more of the properties to another person, the buyer is, in
This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 20
the absence of a contract to the contrary, entitled to have the mortgaged-
debt satisfied out of the property or properties not sold to him, so far as the
same will extend, but not so as to prejudice the rights of the mortgagee or
persons claiming under him or of any another person who has for
consideration acquired an interest in any of the properties.17 This process is
known as Marshalling by the subsequent purchaser.

It is important to note that Transfer of Property by “auction Sale” is not


governed by The Transfer of Property Act, 1882 because it governs only
transfer by act of parties.



17
Section 56 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 21
Exchange of Property and Money

 Introduction of Exchange
 Definition of Exchange
 Rights of Party Deprived of Thing Received In Exchange
 Rights and Liabilities of Parties
 Exchange of Money

------------------------------------------------------------------

19. Introduction of Exchange:


When two persons mutually decide to transfer immovable property or
movable property, it would be referred to as an exchange of property.

Exchange is an act of giving one thing and receiving another (especially of


the same kind) in return. In simple words, give something and receive
something of the same kind in return. The changing of money to its
equivalent in the currency of another country is also exchange.

20. Definition of Exchange:


According to the Transfer of Property Act 1882, when two persons
mutually transfer the ownership of one thing for the ownership of another,
neither thing or both things, being money only, the transaction is called an
“exchange”.18

A transfer of property in completion of an exchange can be made only in


manner provided for the transfer of such property by sale. 19

If a part of the consideration is land and part cash, the transaction is not
one of sale but is one of exchange.20
18
Section 118 of The Transfer of Property Act, 1882
19
Section 118 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 22
21. Rights of Party Deprived of Thing Received In Exchange:

if any party to an exchange or any person claiming through or under such


party is by reason of any defect in the title of the other party deprived of
the thing or any part of the thing received by him in exchange, then, unless
a contrary intention appears from the terms of the exchange, such other
party is liable to him or any person claiming through or under him for loss
caused thereby, or at the option of the person so deprived, for the return of
the thing transferred, if still in the possession of such other party or his
legal representative or a transferee from him without consideration.21

22. Rights and Liabilities of Parties:

According to section 120 of the transfer of property Act, each party has the
rights and is subject to the liabilities of a seller as to that which he gives,
and has the rights and is subject to the liabilities of a buyer as to that which
he takes.22

23. Exchange of Money:

On an exchange of money, each party thereby warrants the genuineness of


the money given by him.23



20
ILR 1957 Mys. 157.
21
Section 119 of The Transfer of Property Act, 1882
22
Section 120 of The Transfer of Property Act, 1882; For detail read the Rights, and Liabilities of Buyer and
Seller
23
Section 121 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 23
Gifts of Immovable Property

 Definition of Gift
 Acceptance When To Be Made
 Essential Elements of Gift
 Transfer How Effected
4.1. In the Case of Immovable Property
4.2. In the Case of Movable Property
 Gift of Existing and Future Property
 Gift To Several of Whom One Does Not Accept
 When Gift May Be Suspended Or Revoked
 Onerous Gift
 Universal Donee
10.Gift Under Islamic Law

------------------------------------------------------------------

24. Definition and Basic Ingredients of Gifts:


According to the transfer of property Act, 1882, “Gift” is the transfer of
certain existing moveable or immoveable property made voluntarily and
without consideration, by one person, called the donor, to another, called
the donee, and accepted by or on behalf of the donee.24

25. 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 donee dies before acceptance, the gift is
void.25

24
Section 122 of The Transfer of Property Act, 1882
25
Section 122 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 24
26. Essential Elements of Gift:

There are the following five essentials of a valid Gift:

a. Parties of Gift:

There are two parties in Gift. One is known as Donor and the other is
called Donee.

b. Subject Matter:

The subject-matter of Gift must be a certain existing property and it may


be movable or immovable.

c. Transfer of Ownership:

For the completion of a valid Gift, ownership must be transferred from


doner to donee.

d. Transfer of Property:

There must be a transfer on the part of the doner and acceptance by or on


behalf of the done, and such acceptance must be made during the life-time
of the doner and while he is still capable of giving.

e. Without Consideration:

The Gift must be voluntarily and without consideration.

27. Transfer How Effected:

a. In the Case of Immovable Property:

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 25
For the purpose of making a gift of immovable property, the transfer must
be effected by a registered instrument signed by or on behalf of the donor,
and attested by at least two witnesses.26

b. In the Case of Movable Property:

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.27

28. Gift of Existing and Future Property:

A gift comprising both existing and future property is void as to the


latter.28

6. Gift To Several of Whom One Does Not Accept:

A gift of a thing to two or more donees, of whom one does not accept it, is
void as to the interest which he would have taken had he accepted.29

7. When Gift May Be Suspended Or Revoked:

The donor and donee may agree that on the happening of any specified
event which does not depend on the will of the donor a gift shall be
suspended or revoked; but a gift which the parties agree shall be revocable
wholly or in part, at the mere will of the donor, is void wholly or in part, as
the case may be.

26
Section 123 of The Transfer of Property Act, 1882
27
Section 123 of The Transfer of Property Act, 1882
28
Section 124 of The Transfer of Property Act, 1882
29
Section 125 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 26
A gift may also be revoked in any of the cases (save want or failure of
consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid a gift cannot be revoked. Nothing contained in this


section shall be deemed to affect the rights of transferees for consideration
without notice.30

Illustrations

(a) A gives a field to B, reserving to himself, with B's assent, the right to
take back the field incase B and his descendants dies before A. B dies
without descendants in A's lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the
right to take back at pleasure Rs. 10,000 out of the

lakh. The gift holds good as to Rs. 90, 000, but is void as to Rs. 10,000,
which continue to belong to A.

8. Onerous Gift:

Where a gift is in the form of a single transfer to the same person of


several things of which one is, and the others are not, burden by an
obligation, die donee can take nothing by the gift unless he accepts it fully.

Where a gift is in the form of two or more separate and independent


transfers to the same person of several things, the donee is at liberty to
accept one of them and refuse the others, although the former may be
beneficial and the latter onerous.

30
Section 126 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 27
Onerous gift to disqualified person. A donee not competent to contract and
accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware
of the obligation, he retains the property given, he becomes so bound.31

Illustrations

(a) A has shares in, X, a properous joint stock company, and also shares in
Y A joint stock company, in difficulties. Heavy calls are expected in
respect of the shares in Y. A gives B all his shares in joint stock
companies. B refuses to accept the shares in Y. He cannot take the shares
in X.

(b) A having a lease for term of years of a house at a rent which he and his
representatives are bound to pay during the term, and which is more than
the house can be let for, gives to B the lease, and also, as a separate and
independent transaction a sum of money. B refuses to accept the lease. He
does not by this refusal forfeit the money.

9. Universal Donee:

Subject to the provisions of section 127, where a gift consists of the


donor’s whole property, the donee is personally liable for all the debts due
by and liabilities of the donor at the time of the gift to the extent of the
property comprised therein.32

31
Section 127 of The Transfer of Property Act, 1882
32
Section 128 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 28
10.Gift Under Islamic Law:

Principles of The Transfer of property Act, 1882 shall not affect any rule
of Islamic Law regarding Gift.33



33
Section 129 of The Transfer of Property Act, 1882

This material is prepared for LLB 5 Years (5th Semester), The Department of Law, (IUB) Page 29

You might also like