TRANSFER OF

PROPERTY ACT,
1882
-EKTA ROSE
ASSITANT PROSFESSOR (ALS)
 THE TRANSFER OF PROPERTY ACT, 1882
INTRODUCTION
Before the Transfer of Property Act came into existence in 1882, the transfers of immoveable
properties in India were governed by the principles of English law and equity. In the absence to
any specific statutory provisions the courts had to fall back upon English law on real properties,
sometimes forcing the courts to decide the disputes according to their own notions of justice
and fair play, resulting in confused and conflicting case laws.
To remedy these confusions and conflicts a Law Commission was appointed in England to
prepare a Code of Substantive Law of Transfer of Properties in India. A draft Bill was prepared
by this Commission and was sent to India by Secretary of State for India. The Bill was
introduced in the Legislative Council in 1877. The Bill was then referred to a Select Committee
and it was also sent to the Local Governments for their comments. The Bill was re drafted on
many points and referred to a Third Law Commission. Incorporating the recommendations of
the Third Law Commission the Transfer of Property Bill was re-introduced in the Legislative
Council.
ACT 4 OF 1882
The Transfer of Property Bill having been passed by the Legislative Council received its assent
on 17th February, 1882. It came on Statute Book as THETRANSFER OF PROPERTY ACT, 1882
(4 of 1882) (Came into force on 1-7-1882).
 THE TRANSFER OF PROPERTY ACT,
1882
(4 OF 1882)
[17TH FEBRUARY 1882]

An Act to amend the law relating to the Transfer of Property by act of Parties
Preamble – WHEREAS it is expedient to define and amend certain parts of the law
relating to the transfer of property by act of parties; it is hereby enacted as follows: -
 OBJECT OF THE ACT
• The object of the Transfer of Property Act, 1882, is given in its preamble. In the beginning of
almost every Act, there is a preamble which briefly gives the objects or purposes of the enactment.
• The preamble to the Transfer of Property Act, 1882, lays down that the Act has been enacted
because it was ‘expedient to define and amend certain parts of the law relating to the transfer of
property by act of parties’.
• This Act was, therefore, enacted because it was necessary to give a definite meaning and make
changes in some or the rules which at that time regulated the transfer of properties by act of
parties.
• Transfer ‘by act of parties’ is a transfer which takes place between two living persons. Such
transfers are also called ‘transfer inter vivos’. For example, sale or gift is a transfer of property by
act of parties because transferor and transferee both must be living persons on the date of sale
or gift.
• Transfer of Property under will, inheritance or by an order of the Court is a transfer by operation of
law. It is not a transfer by act of parties because in such transfers the transferor is not a living
person and the transfer takes place automatically under the given law.
• Transfer of properties by operation of law are governed by personal laws. Hindu and Muslim
law of wills and inheritance or by order of the Court under the Civil Procedure Code.
• Transfer of movable properties by act of parties was regulated by Chapter VII (Sections 76 to
123) of the Indian Contract Act,1872.
Chapter VII of the Indian Contract Act, 1872 was taken out from this Act, in 1930 and since then there is
a separate enactment, the Sale of Goods Act, 1930 which contains rules for the transfer (Sale) of
movable properties. Movable properties are commonly known as goods'.
• Thus, before 1882, although there were specific provisions for the transfers by operation of
law under the personal laws and there was also law for the transfer (sale) of movables by act
of parties, but there was no definite law for transfer of immovable properties by act of parties.
• In the absence of any specific enacted law for the transfers of immovable properties by act of
parties, the Anglo-Indian Courts used to decide the cases by applying the principles of equity,
justice and good conscience as it prevailed in England.
• There were certain Regulations which also contained rules for the transfer immovable
properties. For example, the Madras Regulation of 1802, Bombay Regulation of 1827, Bengal
Regulations of 1798 and 1806 etc., had laid down some of the basic rules for the transfer of
immovable properties. But these Regulations were not exhaustive.
• There were no sufficient provisions in these Regulations for all types of transfers. The result
was that in most of the cases the courts had to apply the rules of English law on the basis of
equity, justice and good-conscience.
• The principles of equity are such fundamental principles of Justice which the courts apply in
the absence of any specific law on a point so as to do justice with the case.
• The Anglo-Indian Courts, in which the Judges were mostly British people who used to apply
the principles of equity as was known in England.
• But the application of English equity to Indian cases was doing less than justice because the
socio-economic conditions in India were altogether different from those of England.
• Moreover, while applying the rules of equity, the Judges were free to give their own
interpretations and explanations of English rules.
• Therefore, their decisions were not uniform and the case-law had become conflicting and
confusing. A clear, certain and uniform law for the transfer of immovable properties by act of
parties was, therefore, urgently required in India.
Drafting
• The task of drafting a definite and uniform law suitable for this country was taken up by the
First Law Commission.
• After suitable modifications made several times, the draft-bill was referred to the Second
Law Commission.
• Finally, the bill was passed by the Legislative Council and became law on 17thFebruary, 1882.
Thus came into existence a clear, certain and uniform enacted law relating to transfer of
property by 'act of parties in the name of the Transfer of Property Act, 1882. The Act was
enforced with effect from 1st July,1882.
• Besides providing a uniform enacted law on transfer of immovable properties, this Act also
fulfils the requirement of completing the ‘Code of Contract (the Indian Contract Act, 1872).
• It may be noted that contract is a legal agreement between two parties, with some object or
purpose. No contract is made only for the sake of making. It is made for something to be
done or not to be done. In contracts relating to properties, the purpose is to get the property
or Property rights transferred. The purpose of such contracts cannot be fulfilled unless the
property concerned is transferred. Although for a contract there was already the Indian
Contract Act, 1872 but for the transfer of property, there was no enacted law.
• Therefore, before 1882, the Code (enacted law) of contract was not complete. The
Transfer of Property Act, 1882, completed the Code of Contract.
That this Act completes the Code of Contract 1s evident from Section 4 of the Act. According
to Section 4, those chapters and sections or the transfer of Property Act, 1882, which relate to
contract should be taken as part of the Indian Contract Act, 1872.
• Moreover, as stated earlier before 1882 there were well established personal laws for
regulating testamentary (wills) and intestate (inheritance)successions but no parallel
laws were in existence for dealing with transfers inter vivos (transfer between living
persons). The Transfer of Property Act, l882 makes the law of transfer of property
between living persons parallel to the law governing transfer oft property by operation
of law. And in this manner after the commencement of the Transfer of Property Act,
the law for both the kinds of transfer, testamentary and inter vivos was completed in
India.
• The areas of the subject in which the Act is applicable, it overrides personal laws
relating to transfer of property. And therefore unless the title to the suit property has
passed in accordance with the provisions of the Act, no right arises to claim
enforcement of the right of pre-emption. A mere agreement to sell does not have the
effect of transferring property, pre-emption could not be claimed.
Kumar Gonsusab V. Mohd. Miyan, (2008) 10 SCC 153.
• The object of the Transfer of property Act may be summarised as under:
1. The Transfer of Property Act, 1882 provides a definite, clear and uniform law for
transfer of immovable property by act of parties1.e., transfer between living persons.
2. The Act has modified and made changes in some of the rules which existed before
its enactment. The changes were made so that the laws may be made suitable to
the socio-economic conditions of India.
3. The Transfer of Property Act completed the Code of Law of Contract. Before this Act,
although there was Code (enacted law)for Contracts, but there was no enacted law
for transfers which used to take place in furtherance of a contract.
During the period or ten years that is to say, between 1872 when Contract Act was passed and1882
when the Transfer of Property Act was enacted, the transfer of property under contracts was
regulated by principles or equity, Justice and good conscience. But, the case-law was not uniform.
4. By making provisions for inter vivos transfers, the Transfer of Property Act has
enacted a law parallel to the already existing laws of testamentary and intestate
transfers i.e., transfer of property under wills and under the law of inheritance.
 HISTORY

• Before 1882 the transfers of immovable properties in India were governed by the
principles of English law and equity and by the Regulations and Acts passed by the
Governor- General-in-Council.
• That time, law was quite confusing.
• This Act may be called the Transfer of Property Act, 1882. It shall come into force on
the first day of July1882.
 OBJECT OF THE ACT
PREAMBLE: an Act to amend the law relating to the Transfer of Property by act of parties.
• Object 1- to bring the rules which regulate the transmission of property between living
person into harmony with the rules affecting its devolution upon death and thus to the
complement the work that commenced with framing of the law of intestate and
testamentary succession and
• Object 2- to complete the code of law of contract, so far as relates to immovable
property.
 SCOPE OF THE ACT.-
• The scope of the Transfer of Property Act is limited. It is not a complete code of
transfer of property. The limitations to the applicability of this Act are there in many
respects. It covers only a specific mode, namely, transfer of property between living
Persons. The limitation is also with regard to the territorial jurisdiction of the Act; it
has no uniform application in all the parts of the country. Moreover, certain rights and
incidents of property have specifically been saved from the operation of this
enactment. The scope of the Transfer of Property Act may briefly be stated as under:
1. Not Exhaustive.
2. Transfers by Operation of Law Excluded.
3. Transfers Mainly of Immovable Properties.
4. Muslim Laws.
5. Saving of certain Incidents and Rights.
6. Territorial Linitations.
 NOT EXHAUSTIVE
• The Act is not exhaustive. It does not contain complete law for all kinds of transfers in
India. There are several modes or methods of transfer. There are also several kinds of
properties. The Act does not incorporate rules for all the modes of transfers of property of
every kind.
• The Preamble to the Act itself makes it clear that the main purpose of the Act is to define
and amend parts of the pre-existing law of transfer of property by act of parties. The Act
does not say that its object is to collect and consolidate all the laws of transfer of
properties in India. Even with regard to transfers by act of parties, the Act is not exhaustive
because in this kind of transfer too, there are several allied or correlated matters tor which
there is only a passing reference; detailed rules on such allied matters are not available.
• For example, the Act deals with mortgages and charges but with respect to these
transactions, the Act has not been regarded to be exhaustive. Similarly, although the
easementary rights are proprietary rights but the Transfer of Property Act is not applicable
to easements.
TRANSFERS BY OPERATION OF LAW EXCLUDED.
• The Act does not apply to transfers by operation of law. Transfer of properties may take place
either by act of parties or, by operation or law. Transfer by act of parties is a transfer between living
persons which takes place by express or implied agreement between such living persons.
• On the other hand, in the transfer by operation of law the property is transferred even though the
transferor is not a living person on the date of the transfer. In such transfers, the property is
transterred automatically by the process of law; the transferor has to do nothing.
• For example, in the case of inheritance or under wills the devolution of property upon the legal
heirs or legatees, is a transfer by operation of law. These transfers take place by operation or
working of the law of inheritance or the law of wills. The propositus (deceased) or the legator has
to do nothing after his death the transmission of property is automatically done under the law of
inheritance or law of wills.
• Similarly, transfers by orders of Court are also
• Transfers by operation of law because they are made not by owners of the property but by Court of
law. Transfers by operation of law have been held to include action sales confirmed by the court.
Thus, transmission of property in the cases of insolvency, forfeiture or sale in execution of Court's
decree, are transfers by operation of law. The Transfer of Property Act is applicable only to
transfers by act of parties; it does not apply to transfers under Court orders.
 TRANSFERS MAINLY OF IMMOVABLE
PROPERTIES
• The Act deals mainly with transfer of immovable properties. Transfers of movable properties are
regulated by the Sales of Goods Act, 1930.
• However, it may be noted that transfer of Property Act, 1882 incorporates certain basic rules of
transfer of properties irrespective of their kind. These fundamental principles relate to the nature of
transfers in general.
• The provisions of the Transfer of Property Act which deal with such principles, are applicable also
to transfer of movable properties.
• Sections 5 to 37 of Chapter II are applicable also to the transfer of both kinds of property, movable
as well as immovable.
• The remaining sections (38 to 53-A) of this Chapter contain rules for the transfer of only
immovable properties.
• In so far as specific transfers are concerned, the definitions of gifts and exchange in the Act are
not limited to immovable properties; they include the gift and exchange also of the movables.
• On the other hand, provisions regarding sale, lease, mortgage and charges are applicable to
transfers of only immovable properties,
 MUSLIM LAW
• According to Section 2 of the Act, provisions of Chapter of this Act do not affect any
inconsistent rule of Muslim Personal Law.
• Chapter II of this Act deals with concept and principles of transfers generally. Accordingly, if
there is any provision in the Transfer of Property Act which is against any rule of Muslim Law,
the rule of Muslim Law would prevail over the conflicting provisions of this Act.
• For example, provision of Section 14 dealing with the rule against perpetuity would not be
applicable to family-waqfs (Waqf-alal-aulad) create Muslims because rules of the family-
waqfs under Muslim Law are inconsistent with the provisions of Section 14.
• Moreover, gifts made by Muslims are governed by the Muslim Law of Hiba. Section 129 of the
Transfer of Property Act specifically provides that provisions of Chapter VII (on Gifts) would
not be made applicable to gifts made by Muslims.
• However, it may be noted that exemption from the operation of this Act is with respect to only
such rules of Muslim Law which are in conflict with any provision of the Act dealing the
transfers in general (given in Chapter II of this Act). Except gifts, provisions of the Act dealing
with specific transfers such as, sale, lease, mortgage etc., are applicable to transfers made by
any person, including Muslim, irrespective of religion, caste and creed.
SAVING OF CERTAIN INCIDENTS AND RIGHTS
• Section 2 of the Act exempts certain incidents of a contract or constitution of property
from the operation of this Act.
• Constitution of property means essential nature of property. Thus, the provisions of
this Act cannot be applied so as to change or affect the basic nature of the property
itself.
• The Act also saves certain property rights from the mischief of this enactment. For
example, rights to Partition of immovable Properties is an incident of property, but this
right is not affected by the provisions of the Act and a valid partition may be made
orally
– Section 2 of the Transfer of Property Act, 1882.
 TERRITORIAL LIMITATIONS

• The Transfer or property Act has territorial limitations as well.

• The Act is not applicable to certain territories included in the State of Punjab. In other
parts of the country where the Act is now applicable, it was not enforced at one
stretch.
• The Act was made applicable to different territories in India on different occasions.
– Section 1 of TPA
• It may be stated, therefore, that the scope of the Act is limited in many respects. Its
applicability is limited from the point of view or the mode of transfer, the kind of
property and also with regard to its territorial jurisdiction.
 NOT A COMPLETE CODE
• The Transfer of Property Act is not a complete code.
• It is not exhaustive.
• It is not applicable to all types of transfer of property.
– Major sections of the Act deal with immovable property (basically deals with both
movable and immovable)
– Sale of Goods Act regulate Transfer of movable property.
– Chapter II which contains General Provisions does not affect transfer by Muslims
i.e.
If there is any provision in TPA against Muslim Law – then Muslim law will prevail
(Personal law)
– Gifts in Muslim Law is governed by HIBA
• It is applicable for transfer inter vivos. (b/w 2 living Persons)
• Some of provisions of Mortgage (charges) and Easement is out of purview of this Act.
• There are other laws like Contract, Intellectual Property, Registration etc.