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History of the Act, 1882. Scheme of the Act, 1882. Preamble of the Act, 1882.

Scope of the Act, 1882.

The draft bill of the present Act was prepared by the law commission consisted of Lord Romily, Sir Edward Rayn, Lord Sherbrook, Sir Robert Lush, Sir John Macleod. The draft bill was passed into law on 17th Feb., 1882.

Before 1882, when the present Act came into being, the transfer of immovable property in India were governed by the principles of equity. Most of the provisions of The Act, 1882 had been based on the decisions of the court of Equity before 1884. In the absence of any specific provision, the Anglo-Indian courts had to fall back on English law on real properties. Sometimes, the courts had to decide the case according to their own notion of justice and fair play. The result was that the case law became confused and conflicting.

To remedy this state of affairs, a law commission appointed in England to prepare a code of substantive law of transfer of properties in India. Since the passing of the transfer of property Act, 1882. Its provision were amended on 12th occasion but no general revision of the Act was undertaken or any new principles of importance or substance introduced.

Sec. 2[c]:Nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability. Thus the operation of the Act is prospective as an enactment pertaining to properties should not be given retrospective operation. A.Ammal v. Vellammal[1966 Mad]

Where it is expedient to define and amend certain parts of the law relating to the transfer of property by the act of

parties.
Preamble of the Act sets out the main objective which the legislation is intended to achieve. The significance of preamble in respect to interpretation of the Act: in case of ambiguity to explain and elucidate.

The Act regulates transfer by act of parties and not by operation of law. Transfer by act of parties: sale, exchange, lease, mortgage, actionable claim. Transfer by operation of law: under execution of a decree, auction sale under insolvency or liquidation proceedings forfeiture by the state etc. But even the Act is not exhaustive of regulate all transfer by act of parties: ex. Pledge of moveable property, govt. promissory notes, insurance policy etc.

The scope of the Act is limited not exhaustive. As there are following limitations to the applicability of the Act:

1. The Act regulates transfer by act of parties not by operation of law. 2. The Act deals with only transfer intervivos i.e. between living persons. Thus a transfer which takes effect under a will or through succession is not covered by the Act.

3. Sec. 2/sec. 129 saves the rules of Mohammedon law in so far as they are inconsistent with any of the provisions contained in Chapter 2 and Hiba. Thus a muslim may settle property in perpetuity for the benefit of his decedents, provided there is an ultimate gift in favour of charity. [ The Wakf Validation Act, 1913 ] 4. Territorial limits

Thus we can say that the Act is not exhaustive and it does not profess to be complete code. It does not contain complete law for all kind of transfer of property in India. It is evident from the omission of the term consolidate in the preamble. Thats why in case of lacuna found in the Act, such lacuna can be filled by the exercise of principles of equity, justice and good conscience if its application is found suited to Indian society and circumstances.

Scheme of the Act


1. Sec. 1-4: preliminary: definition clause, extent and scope of the Act. 2. Sec. 5-53A: General principles as to transfer of property. Definition of transfer of property What property may be transferred. Who can transfer. Conditional transfer Rule against perpetuity Rule of election Interest : vested and contingent. Transfer of Immovable property; Sec.38-53A: Transfer by ostensible owner, Rule of estoppel, Doctrine of lis pendense, fraudulent transfer and Part performance.

3.Sec. 54-57:Sale of Immovable Property. 4.Sec.58-104: Mortgage and charge. 5.Sec.105-117: Lease.

6.Sec. 118-121: Exchange.


7.Sec. 122-129: Gifts. 8.Sec. 130-137: Transfer of actionable claims.