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Transfer of property act

Section 1: short title, Commencement and extent:

This act may be called transfer of property act, 1882. It shall come into
force on the first day of July, 1882.

Section-2: interpretation clause:

Immoveable property: Section-3 defines that immovable property

does not include standing timber, growing crops or grass. Because the
purpose of these things is to cut off so after cutting it becomes movable.

In transfer of property act, the definition of immovable property is not

which is given in general clause act 1887.

In general clause 1887, the definition of immovable property is that

which is not movable.

It shall include lands, benefit arises from land, thing attached to the
earth weather rooted e.g.: trees or imbedded e.g. walls and buildings. So we
require intention while difference between movable and immovable thing
there are some formalities from valid transfer.

Instrument:

Instrument means a non-testamentary instrument.

Attested:

Attested means attestation of an instrument by two or more witnesses.

Each of the witnesses has seen the executants sign to the instrument or other
person signing in the presence of executants.

Each of the witness’s signs in the presence of executants, but it shall

not be necessary that more than one of such witness shall have been present
at the same time. And no particular form of attestation is necessary.

Registration:
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Registration means register in a province under the law for the time
being in force regulating the registration of document.

Attached to the earth:

Attached to the earth means:

 (1) Rooted in the earth, as in the case of trees and shrubs.

 (2) Imbedded in the earth as in the case of walls or buildings.
 (3) Attached to what is so imbedded for the permanent beneficial
enjoinment of that to which it is attached e.g. door, window etc.

Notice:

A person is said to have notice, when he actually known the fact.

Attesting witness:

Attesting witness is a person who, in presence of executants of

document, puts his signature of mark on it after seeing that executants or
some on by executants’ direction has signed or affixed his mark to it.

“The attestation ensures that there is no fraud or other vitiating

circumstances in the execution of the document.

Provisions:

There are two types of provisions:

 (1) Default provisions:

Default provision is a temporary provision. Those provisions which can

be changed are called default provisions. If no mandatory provisions exist
then default provision will be applied.

 (2) Mandatory provision:

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Mandatory provision is necessary provision. Those provisions which

can’t be changed, called mandatory provision.

Online registration and attestation:

Online registration and attestation is allowed but not through transfer of

property act. For online registration and attestation there is a separate
ordinance, called ETO (Electronic transaction ordinance).

Implementation of transfer of property act:

To implement transfer of property act there should be;

 Contract,
 Attestation and
 Registration.

Maximalist:

Maximalists are those who go for regularization of law.

Minimalist:

Minimalists are those who for de-regularization of law.

Section 5: Transfer of property act:

Def; According to this section transfer of property means an act by

which a living person conveys a property, in present or in future. To one or
more other living persons or to himself and one or more other living persons
and to transfer property is to per per such act.

In this section living persons means physical persons or living persons

includes a company or association or a body of individuals whether
incorporated or not. All living persons can transfer his property to another as
well as to himself.

The word present and future deals with the word convey not with
property, because future property can’t transfer.
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Common practice is that there s no house exists but it transfer to

another. This not the transfer of property it is called agreement to sell.

A person can only transfer legal not equitable title.

A present property can transfer in future because according to the

definition of transfer of property to convey property in present or in future.

Section 6: What may transfer?

Property of any kind may be transferred, except as otherwise provided

by this act or by any other law.

 When a heir are in hope or expectation of succeeding the property

due the death of his father or any other relatives or due to any
another natural way, so it can’t be transfer.

Setion-8: Operation of transfer:

When the property is transferring everything at the time of transfer will

also be transferred which are related to that property unless not specifically
not mention.

Generally a deed is written for transfer and everything were mentioned

in it and after that some disputes arise regarding this which is not mention so
section 8 will be applied and section 8 said;

 Where the property is land easement future rents, profits and all
things attached to earth will also be transfer.
 Where the property is machinery which attach to earth, all its
movable parts will transfer with it.
 Where the property is house, easement, future real, looks, doors,
windows and other things attach for permanent are also transfer
with house.
 Where the property is money but become actionable claim will be
transferred.
 Simply all the right will transfer to the buyer which was
previously available to the seller.
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Section 9: Oral transfer:

An oral transfer can be made in every case in which writing is not

expressly required by law.

Section-10. Condition restraining alienation:

Section 10 of the transfer of property act says, that where a property is

transferred subject to the condition absolutely restraining the transferee
from disposing of his interest, the condition is void.

Exception:- A lease is an exception to the rule against an absolute restraint

and alienation.

Explanation:

If any property is transferred there can be no condition restraining

alienation except in the case of lease, the condition or limitation is deemed
to be void

Section-11. Restriction repugnant to interest created:

According to section 11 “ where transfer creates an absolute interest in

the transferee, a direction that such interest shall be enjoyed by him in
particular manner is void.

Example:

Mr. A makes an absolute gift of house to Mr. B with a condition that B

shall reside in it. The direction is void.

Exception:- the transfer may impose conditions restraining the enjoinment

of land if restrictions are for the benefit of his adjoining land.

Section-12. Transfer making interest determinable on insolvency or

attempted alienation:

Section 12 lays down that a condition subsequent which terminates an

interest on insolvency or attempted alienation is void.
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Nothing in this section applies to a condition in a lease for the benefit of the
lesser those claiming under him.

Section-13. Transfer for the benefit of unborn child:

Section 13 deals with the transfer for the benefit of unborn person. 1) a
transfer can not be made directly to an unborn child. 2) such transfer can
only made by creation of a prior interest in favor of a living person. 3). The
entire property must be transferred to the unborn person. 4) the unborn
person must come into existence before termination of the last prior estate.

Section-14. Rules against perpetuity:

This section deals with perpetuity. The general rule is that property
cannot be tied or rendered inalienable for an indefinite period. The property
can however be tied up to the extend mentioned in this section. It can be tied
up in the hands of one or more living person plus the minority of some
person who must be born before the termination of the last prior estate.

For example, a property may be transferred to A for life and then to B for
life and then to C for life provided A B and C area all living person and then
on a trust for such son of C as shall first attain the age of 18.

Section 18 is the exception.

Section-16. If the prior transfer in favor of the class of persons fails by

reason of the provisions of section 13 and 14, the transfer overall also fails.
In other words it means, where prior interest is invalid subsequent interest
also fails.

Section-17. Direction of accumulation:

Section 17 relates to the rule against accumulation and provides how long
the income of any property transferred can be directed to be accumulated. So
as to prevent its being received and enjoyed by the transferee. This section
prescribes two periods during ehich accumulation can validly be directed.

1). The life of the transferee.

2). A period of 18 years from the date of the transfer, whichever is longer.
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Section-18. Transfer for the benefit of the public:

The rules against perpetuity and accumulation does not apply in the case
of a transfer for the benefit of the public in the advancement of religion,
knowledge, health, safety etc.

Section-21. Contingent interest:

An interest is contingent when the right to enjoyment depends upon the

happening of an uncertain events which may or may not happen.

Examples:

Mr. A gifts to B on the death of C creates a vested interest, but gifts on

the marriage of C creates only a contingent interest.

Distinction between vested and contingent interest:

Vested interest Contingent interest

Owner title is already perfect.
Owner right is absolute.
Investetive fact giving rights of
ownership complete.
Takes effect from the date of
Owner title is imperfect but capable
of being perfected on happening of
the specified contingency.
Owner holds rights merely
conditionally.
Such a fact is not yet complete.
Takes effect on the happening of
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transfer. contingency.

Section-23. Section says, that the contingent interest will fail unless the
event happen before or at the same time as the prior interest ceases.

Example:

There is gift for A for life and then to B in case B marries, the gift to B
fails unless he marries in the life time of A or at the same time A dies.

Section-25. Conditional transfer:

There as are four situation of conditional transfer:

i). if transfer valid and condition valid, then result of transfer will be valid.
For example transfer something with condition that payment will be made
within in one month.

ii). If transfer valid and condition is invalid but not from ab intio , then
transfer will be valid. For example transfer property to B with a condition
that B cannot further transfer the same property.

iii). If transfer valid and condition is invalid from ab intio, then transfer will
be invalid. For example transfer house to B with a condition that B murder
C.

iv). If transfer invalid and condition valid or not, then transfer will be
invalid. For example transfer public place with condition valid or not.

But section 25 deals with void condition precedent.

One can on making a transfer put conditions precedent i,e. conditions which
must be performed before the transferee can take the property. But such
conditional transfer must be impossible or forbidden by law or is fraudulent
or implies injury to the person or property of another or is immoral or
opposed to public policy.

Example:
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A transfer a property to B with a condition that he shall murder C.

transfer is void.

Section-26. Fulfillment of condition precedent:

A condition precedent is fulfilled if it is substantially carried out. The

reason is that the law favors the early vesting of estate, so a condition
precedent is fulfilled if it has been substantially complied with.

Example:

Mr. A transfer Rs. 500000 to B with the condition that he shall marry
with the consent of C D and E. E dies. B marries with the consent of C and
D, B is deemed to have fulfillment the condition.

Section-53(a):- part performance:

This section deals with doctrine of part performance. It lays down that
where any person contracts to transfer any immovable property and the
transferee has, in the part performance of the contract, taken possession of
the property, then, notwithstanding that the contract although required to be
registered, has not been registered such contract is valid.

Essentials:

i). The contract must be for consideration.

ii). It must be in writing.

iii). The transferee has taken possession or is already in possession.

iv). He has done some act in furtherance of the contract.

v). has performed or is willing to perform his part of the contract.

Related sections:

 Section 8, 19, 21, 33 and 34 deals with rules of interpretation.

 Section 10 to 12 and 25 to 32 deals with transfer made with condition.
 Section 13 to 18, 20 and 22 deal with future interest.
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