Introduction 

to TPA

A transfer refers to a conversion of a thing from one person to another person. Property
may be defined as anything physical or a virtual entity owned by an individual or a group
of people. A property can be transferred from one person to another person by
transferring rights, or interest, or ownership, or possession the party can satisfy either or
all the ingredients. 

The transfer of property can be made in the two following ways:

First: act of the parties; 
Second: by law. 
Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It
refers to an act done by a living person conveying property to one or more person or by
himself or by one or more living persons in the present or the future. Living people
include a company, an association, or body of individuals whether incorporated or not. 

Illustration
A is the grandson of G and A owns three estates of which he wanted to transfer one
estate to his grandpa D but he died two years ago the transfer won’t be held valid
because the transfer of property should happen between two living persons.

Sr. Transfer
Property  Act
No  between

Living to Transfer of property Act,

1 Immovable property
living 1882

Living to
2 Movable property Sale of goods Act, 1930
living 

Immovable property and Movable Indian Succession Act,

3 Dead to living
property 1925

Background of the Transfer of Property Act, 1882  

Before the advent of the British Raj system in India, Hindus, and Muslims were governed
by their personal laws for the transfer of property. When Britishers were actively
involved in the Indian Legal system they established informal Courts in which clear and
concrete law was absent as compared to the law that was prevailing in England. Various
High Court expressed the need for creating specific acts related to the transfer of
property. As the principle of a good conscience, equity, and justice was confusing and
created various uncertainties, the privy council noted the uncertainties and also told the
authorities to take immediate action.

So, the first commission was appointed by the British Queen Elizabeth II to remove
uncertainties. On matters related to the transfer of property. The draft was sent in India
after certain amendments were introduced in the legislative Council in 1877. It was then
sent to the selection committee but it was reversed due to the public criticism. The Bill
was redrafted by the Second law commission. Some of the provisions were borrowed
from English law on real property, the Law of Conveyancing and Property Act, 1881.
Mostly the law was shaped in such a manner that suits the Indian population and can be
easily understood by a non-professional judge. 

Despite various amendments made by the Second Commission, there was an

expansion of the law. Therefore, a special committee was appointed to make the

amendments in the prevailing act. So various amendments

Important concepts highlighted in the Act

 Immovable property: According to the General Clauses Act, 1897 immovable

property includes land, benefits arising out of the land, things that are attached
to the land. Under transfer of property, the immovable property can be defined
as all property are immovable property other than standing timber, growing
crops, or grass. 

Narayana Sa vs. Balaguruswami (1923) 

In this case, large artillery was fixed for blowing liquor. The Court held that it would be
considered as movable property if it was fixed in the land, not with an intention for
beneficial enjoyment. 

 Mortgage debt: After the amendment of 1900 mortgage debt was excluded

from actionable claims. In Peruma animal vs. Peruma Naicker, Wallis C.J.held
that before 1900 mortgage debts could be transferred as actionable claims, it
was excluded from the actionable claims, the legislature intended that the
mortgage debt must be transferred in mortgagee’s interest through a registered
instrument.
 Instrument: According to the transfer of property Act, 1882 instrument refers
to a non-testamentary instrument. It acts as evidence of the transfer of property
between living parties. According to the legal dictionary, an instrument refers to
a formal legal document. 
 Attested: It refers to a formal document signed by a witness. The transferors of
the property are known as the executant. The amendment act was introduced in
1926 which mentioned that there must be two or more witnesses who must sign
the document in presence of the executant not necessarily at the same time but
they shouldn’t be the party to the transfer. 
 Registered: According to the transfer of property Act, 1882 registered refers to
any property registered where the act is operative. One must comply with
various procedures of registration. 

1. The description of the property should be mentioned.

2. Avoid fraud. 
3. Deeds should be presented by a competent person. 
 4. The property must be registered in the same territory where the registered office
is situated. 

 Actionable claims: A claim to any debt, other than the debt secured by
mortgage of immovable property or by hypothecation or pledge of movable
property or to any beneficial interest in a movable property or to any beneficial
interest in movable property not in the possession, either actual, or constructive
possession of the claimant which the civil courts recognize as affording
grounded of relief, whether such debt or beneficial interest be existent,
accusing, conditional or contingent.

Illustration: A has given his house to B for rent but B hasn’t paid the rent because this
would amount to an actionable claim. 

 Notice: Notice refers to knowledge of the fact. The person has knowledge of

facts about various circumstances. According to the Transfer of Property Act,
1882 it prescribed two kinds of notices 

Actual or implied notice: The person having actual knowledge about a particular fact. 

Constructive notice: The knowledge of the fact is obtained through circumstances.  

Essential elements of the Transfer of Property Act, 1882

 To be a living or juristic person: For a transfer of property, there must be a

transfer between living or a juristic person. In Shiromanigurudwara Prabhakar
committee, Amritsar v. Sri Somnath Dass (2000) the court defines a juristic
person which can be an individual firm, corporate, company society,
association, but not a partnership. Anyone who can sue or can be sued would
satisfy this requirement. 
 Transfer through Conveyance: Conveyance of property can be either done in
the present or in the future. It is necessary to ensure nothing is transferred before
the title. 
 The Property must be transferable: According to Section 6 of transfer of
property Act, 1882 there are properties which cannot be transferred:

1. The chance of an heir-apparent succeeding to an estate, the chance of a relation

obtaining a legacy on the death of a kinsman, or any other mere possibility of a
like nature cannot be transferred. 
2. The mere right to re-entry for breach of a condition subsequent cannot be
transferred to anyone except the owner.
3. The easement right cannot be transferred. 
4. The interest of the property restricted in its enjoyment to the owner cannot be
transferred. 
5. Political pensions, public office, the salary of the public officer cannot be
transferred. 
6. The right to sue cannot be transferred. 
7. Stipends to military, navy or the airforce, political pensioners, and civil
pensioners cannot be transferred. 
 8. No transfer cannot be made as opposed to the natural interest or if the object or
the consideration is unlawful then the transfer cannot be held valid. 
9. The right to future maintenance cannot be transferred.
10.Tenants having an untransferable right to occupancy, the farmer of an estate in
respect of which default has been made in paying revenue or lessee of an estate
under the management of the court of wards, to assign his interest as the tenant,
farmer, or lessee.   

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

transfer, it is necessary that the property transferred 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. 
 The transfer should be made in a prescribed form: The transfer of property
need not be made in writing however certain property to transfer then it must be
in writing:

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

2. Sale of intangible must be in a written format. 
3. All mortgages which are more than a hundred rupees should be transferred in a
written form.  
4. The transfer of actionable claims must be in a written form. 
5. A gift in a form of immovable property. 
6. Lease of immovable property exceeding more than one year. 

 The rule against perpetually: It is necessary that the property must be

transferred during the lifetime of an individual perpetuity rule should not be
followed during the time of transfer of property. 
 Property cannot be transferred to an unborn child:  A property cannot be
transferred to an unborn child necessary to consider that while transferring the
interest of the property person should be above the age of 18 years.
 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. 

Kinds of transfer under the Transfer of Property Act, 1882

1. Sale of immovable property: There is a transfer of ownership from the buyer

to the seller in exchange for the price. Delivery of tangible property from the
seller to the buyer. 
2. Mortgage of immovable property: The property gets transferred from the
buyer to the seller 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. 
 3. Leases of immovable property: 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. 
4. Exchange of immovable property: When two persons mutually decide to
transfer immovable property, it would be referred to as an exchange of
property. 
5. Gift of immovable property:  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 donee, to donor transfer is accepted by
and on behalf of the donee.  

Features of Transfer of Property Act, 1882 

 The preamble of the transfer of property Act lays down that it is related to the
transfer of property by the act of the properties.
 The transfer of property act, 1882 provides a uniform and a clear law
concerning the transfer of movable property from one living person to another
living person by the act of parties. 
 The Transfer of Property Act, 1882 is an extension of the Indian Contract
Act,1872 because the contract act was recognized as an inexhaustive code. 
 The transfer of property law is not a copy of the English transfer of property
laws that was enacted based on socio-economic conditions of the country.  
 The transfer of property Act, 1882 cannot be considered as totally exhaustive; it
covers the transfer of immovable property from the act of parties. 
 Transfer of property is subject to the concurrent list that provides power to both
the state legislature and the parliament to pass laws related to the matter of
transfer of property.
 The act covers five types of transfer of immovable property they are as follows:
a) Mortgage b) gift c) sale d) actionable claims e) lease.
 The transfer of property Act, 1882 is a law that applies lex-loci to all people
living in that jurisdiction, not like personal laws that differ from person to
person. 
 The transfer of property Act, 1882 is governed by various principles like justice,
equity, and good conscience. 
 Initially, at the time of implementation, the act didn’t apply to the State of
Bombay, Punjab, and Delhi as because they had their own acts related to
property matters. Currently, the transfer of property act doesn’t apply in Punjab;
it complies with the rule of good conscience, equity, and justice. 
 Transfer of property Act, 1882 highlights the provision of inter-vivos parallel to
the existing laws relating to the testamentary and interstate transfer.
 The transfer of property act, 1882 is a general law and therefore it cannot
prevail over the special laws passed by the parliament. 
 Under the Transfer of Property Act, 1882 it mentions that absolute conditional
restraint is void and partial conditional restraint on the transfer of property is
valid.  
Conclusion 

The Act was introduced with an intention to create a comprehensive Act which provides
information about the transfer in a very simple language during the time of introduction it
was not complete and had various uncertainties. It has gone through various amendment
processes and the act has proved it time and again about its effectiveness. In India, many
more such acts like transfer of property Act, 1882 are still in need to be implemented.