TRANSFER OF

PROPERTY
TRANSFER OF PROPERTY ACT, 1882
• The Transfer of Property Act, 1882 (hereinafter, the Act) is a
civil legislation of immense importance owing to the vast
number of property related transactions taking place
throughout the country. A uniform legislation was the need of
the hour considering this factor, and this act was drafted to
serve the self-same purpose.
• In the Transfer of Property Act, 1882 - transfer is defined as an act by which a
living person conveys 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 perform such act. In this section ‘living person’ includes a
company or association or body of individuals, whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force relating
to transfer of property to or by companies, associations or bodies of individuals.
• It is important to note the meaning of the word property as applied in the act.
Property has been given a rather wide spectrum covering both tangible material
things, e.g., land and houses as well as rights which are not exercised over any
material, e.g., a right to repayment of a debt. The word ‘transfer’ in the Act has also
been used in a wide sense. It may mean either transfer of all the rights and interests
in the property or transfer of one or more of subordinate rights in the property.
Thus, the expression ‘transfer of property’ may, therefore, imply either transfer of
things, transfer of one or more of the rights in a thing, or transfer of a debt
• From the above discussion, it is clear that, the expression transfer of
property as defined in section 5 is wide enough to cover any transaction
which has the effect of conveying property from one living person to
another. Since conveying of the property involves the creation of new title
or interests in favour of the transferee. That is to say, if new title or
interest has not been created in favour of the transferee, the property is
not conveyed, hence no transfer of property. 
SECTION 6 OF THE ACT EXPLAINS THE NATURE OF THE
PROPERTY LIABLE TO BE TRANSFERRED UNDER THE SAID
PROVISION.

• In general “property of any kind may be transferred’. There is however, a series of exceptions to this,

as enumerated under sub-sections (a) to (i), explained hereafter. It is interesting to note the distinct

similarity between these sections and those made by Section 60 of the Civil Procedure Code as to the

property which cannot be attached in the execution of a decree. Although there is this similarity yet

there is a difference between the exceptions made in this section and exceptions made in Section 60.

• Certain things such as tools of artisans and necessary cooking vessels can be transferred, yet they,

under Section 60 of the Code cannot be attached. Apart from the exceptions made by the present

section there are certain restrictions imposed by other laws on the power of transfer. For e.g.,

restrictions in Hindu law against the transfer of coparcenary property. 

DEFINITION

• Transfer of Property means an act by which a living person can conveys property, in

present or in future, to one or more other living persons, or to himself, or to himself and

one or more or other living persons,  and to transfer property is to perform such act.

• The object of the Transfer of Property Act is to define and amend law relating to

Transfer of Property by act of parties and not to transfer by operation of law. A Transfer

of Property is a contract hence all necessary requirements to constitute valid contract are

to be fulfilled
ESSENTIALS OF TRANSFER OF
PROPERTY
1) Transfer must be between two or more living Persons (Section.5)

2) The property must be transferable (Section. 6)

3) The Transfer must not be - opposed to the nature of interest affected thereby
Section.6 (h).

4) Persons competent to transfer (Section.7)

5) The Transfer must be made in the mode prescribed by the Act, under section 9.

6) If on transfer an interest in created in favour of an Unborn person - under

section 13

7) The Transfer must not be contrary to the rule against perpetuity (section 14)
1) TRANSFER MUST BE BETWEEN TWO OR MORE LIVING
PERSONS (SECTION.5)

• The Transfer must be inter-vivos. Therefore there cannot be a

transfer to person not in existence at the time of transfer. The
living person including company or Association or body of
individuals whether incorporated or not.
2) THE PROPERTY MUST BE TRANSFERABLE (SECTION. 6)

• Property of any kind of may be transferred, excepts as

otherwise mentioned in S.6(a) to (I) cannot be transferred.
Therefore those properties described in the clauses (a) to(I) of
Section.6 cannot be transferred. These are  restrictions on the
Transfer of Property and any transfer in contravention of any of
the clauses given in Section 6(a) to (I) is null and void.
3) THE TRANSFER MUST NOT BE - OPPOSED TO THE
NATURE OF INTEREST AFFECTED THEREBY SECTION.6 (H).

1) opposed to the nature of interest affected thereby Section.6 (h)

2) For unlawful object and consideration as per provision of Section 23 of the

Indian Contract Act 1872 which provides a consideration or object is unlawful

if -
a. It is Forbidden by law, or it is of such a nature that it defeats the provision of any law, or

b. is fraudulent,  or 

c. it involves or implies injury to the person or property of another or

d. the court regards it as immoral or opposed to public policy.

3) To a person legally disqualified to be a transferee. As per
Section 136. of Transfer of Property Act, a Judge, a legal
practitioner are an office are connected with Court of Justice are
disqualified from purchasing in actionable claim. This
prohibition is only with respect to actionable claim. It does not
apply to any other kind of property.
4) PERSONS COMPETENT TO TRANSFER (SECTION.7)

• Every person is competent to contract and entitle to transferable

property, or authorised to dispose off Transferable property not
his own, is competent to transfer such a property either wholly
or in part,  and either absolutely or conditionally,  in the
circumstances to the extent and in the manner,  allowed and
prescribed by any law for the time being in force.
5) THE TRANSFER MUST BE MADE IN THE MODE PRESCRIBED
BY THE ACT, UNDER SECTION 9.

• Section 9 of Transfer of property provides that for oral transfer, A Transfer of

Property may be made without writing in every case in which a writing is not

expressly required by law. Writing is necessary in case of following instruments -

• 1) sale of immovable property of the value of  rupees hundred or upwards (S.54),

• 2) leases of immovable property from year to year for a term exceeding one year

or reserving a yearly rent (Section 107)

• 3) simple mortgage irrespective of amount secured (Section 59 ),

• 4) All other mortgages securing Rs100 or upwards (section 59)

• 5) Exchange ( section 108)

• 6) Gift of immovable property (section 123)

• 7) Transfer of actionable claim (section 130)

6) IF ON TRANSFER AN INTEREST IN CREATED IN FAVOUR
OF AN UNBORN PERSON - UNDER SECTION 13

a) limited interest to be created in favour of living person,

b) Unborn person shall be born before expiry of Limited interest,

c) Once the Unborn person is born, he shall be given absolute

interest on attending the age of majority.
7) THE TRANSFER MUST NOT BE CONTRARY TO THE RULE AGAINST
PERPETUITY (SECTION 14)

• S.14 provides that vesting cannot be postponed beyond the life of living
person or minority of unborn person. Such transfer if made is void.

H ) Conditional transfer 

If transfer is conditional, the condition must not be illegal, impossible,

immoral or  opposed to public policies
 RELEVANT CASE LAW
1) Sadiq Ali Khan Vs. Jai kishore,1928.

Privy Council observed that a deed executed by a minor was nullity. Principle of estoppel cannot be

applied to a minor. A minor is not competent to transfer yet a transfer to a minor is valid .

2)  Amina Bibi vs Saiyid Yousuf 1922.All. 449.

A contract made by lunatic is void under section 11 of the Indian Contract Act, and so also, transfer by

him of his property is void.

3) K Kamama Vs. Appana

U/s. 11 of Hindu minority and guardianship Act, 1956 a defacto guardian is merely a manager and

cannot dispose off minor's property. In this case a defacto guardian sold property of a minor, the court

declared the sale invalid.
WHO IS COMPETENT TO TRANSFER ?
THE TRANSFERRER MUST BE
….
1) Competent to contract –

According to Section 11 of the Indian Contract Act,  every person is competent to contract who is

the age of majority. under section.3 of the Indian majority Act,1875 a person attains majority at

the age of 18 years and if a Guardian is appointed, he would attend majority at the age of 21.

2) Sound mind -

Under section 12 of the Indian Contract Act, a person is of sound mind of the purpose of making

contract if he is capable of understandings it and of forming a rational judgement as to its effect

upon his interest. A contract made by a person of unsound mind is void

3) Disqualified person -

An insolvent and alien enemy are disqualified from contracting. A transfer by a De facto
Guardian of minors' property is invalid and will be hit by section 11 of  Hindu minority and
guardianship Act, 1956.

4) Transferor must be entitled to transferable property - or authorised to dispose off

Transferable property not his own. One who is absolute owner of the property and property
is free from encumbrances is capable to transfer the same. An owner of the property May
authorise  his power of attorney holder to transfer the property for him and on his behalf.
PROPERTY OF ‘ANY KIND’ MAY BE TRANSFERRED
SUB-SECTION (A): SPES SUCCESSIONS:

• Spes successionis within the meaning of Section 6 of the Act: The

things referred to in this Sub-section as non-transferable are the
chance of an heir succeeding to an estate, the chance of a
relation obtaining a legacy (a gift by will) on the death of a
kinsman, and any other mere possibility of a like nature.
SUB-SECTION (B): RIGHT OF RE-
ENTRY
• By a mere right of re-entry is meant a right to resume possession of land which has been given to

another person for a certain time. This right of re-entry is’ usually inserted in leases empowering the

lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a

breach of covenants in the lease. This Sub-section lies down that the right of re-entry cannot be

transferred by itself apart from the land.

• Example. A grants a lease of a plot of land to B with a condition that if B shall build upon it, he would

re-enter. A transfers to C his right of recentring in case of breach of the covenant not to build. The

transfer is invalid for two reasons, one, the right is a personal licence and not transferable, second, the

transferee could only use it for the purposes of a suit to enforce the right without acquiring any right

in the property. But if A transfers the whole of his interest in the property, i.e., ownership along with

the right of re-entry to C, the transfer shall be valid being a legal incident of the property.
SUB-SECTION (C): EASEMENT
• An easement is a right to use or restrict the use of land of another in some way. Examples of
easements are rights of way, rights of light and rights of water. An easement involves the
existence of a dominant heritage and a servient heritage. That is, there must be two parcels of
land, one (the dominant heritage) to which the benefit of the easement attaches, and another (the
servient heritage) which bears the burden of the easement. But technically an easement cannot
exist in gross (independently of the ownership of land but only as appurtenant) attached to a
dominant heritage. It follows therefore that an easement cannot be transferred without the
property which has the benefit of it.

• Example. A, the owner of a house X, has a right of way over an adjoining plot of land belonging
to B. A transfers this right of way to C. The transfer is a transfer of easement and therefore
invalid. But if A transfers the house itself, the easement passes on to C on such transfer.
SUB-SECTION (D): RESTRICTED
INTERESTS
• This clause states, a person cannot transfer an interest restricted in its enjoyment of him. A transfer of

such interest would defeat the object of the restriction. As an example, if a house is lent to a man for

his personal use, he cannot transfer his right of enjoyment to another. Under this clause, the following

kinds of interest have been held not to be transferable:—

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings made at a

temple is independent of an obligation to perform services involving qualifications of a personal

nature, the right is transferable.6

(c) A right of pre-emption.

(d) Service tenures.

SUB-SECTION (DD): MAINTENANCE
• A right to future maintenance is solely for the personal benefit of the person to
whom it is granted and, therefore, cannot be transferred. Before the insertion of
this Sub-section in 1929, there was a conflict of opinion whether the right to
future maintenance when it was fixed by a decree was transferable. It was held
in Madras that it was, and in Calcutta that it was not. The amendment
supersedes the Madras decision. The result is that the assignment of a decree for
maintenance is valid if the maintenance has already become due but as to future
maintenance it is not valid. Arrears of maintenance, therefore, can be assigned.
SUB-SECTION (E): MERE RIGHT TO
SUE
• A mere right to sue, as for instance, in respect of damages for breach
of contract, or for tort, cannot be transferred. The object of the
prohibition is to prevent gambling in litigation. Moreover, a right to
sue is personal to the party aggrieved.

• Example. A contracts to buy goods from B. On due date A fails to take

delivery and B sells the goods in the market at a loss of Rs.10000. B
transfers the right to recover the damages to C. The transfer is invalid.
SUB-SECTION (F): PUBLIC OFFICE

• According this section, a public office cannot be transferred. The

prohibition is based on the grounds of public policy. A public
office is held for qualities personal to the incumbent, and
obviously it would be against public interest to permit
alienations of public officer.
SUB-SECTION (G): PENSIONS

• Under this clause, stipends allowed to military and civil pensioners of

Government and political pensions cannot be transferred. The term ‘pension’
means a periodical allowance or stipend granted not in respect of any right of
office but on account of past services of particular merits or as compensation
to dethroned princes, their families and dependants. Accordingly, a reward is
not a pension. Section 60 of the Civil Procedure Code also exempts a pension
from attachment in execution of a decree against the pension holder.
SUB-SECTION (H): NATURE OF
INTEREST
• This sub-section forbids transfer (1) in so far as such transfer
would be opposed to the interests affected thereby, (2) for
unlawful object or consideration, and (3) to a person legally
disqualified to be a transferee.
SUB-SECTION (I):UNTRANSFERABLE
INTERESTS
• In general leaseholds are transferable but this sub-section makes an
exception of this rule and declares certain interest immutable. Thus,
under this rule, a tenant having an untransferable right of occupancy
cannot alienate or assign his interests in the occupancy. Similarly, a
farmer of an estate, in respect of which default has been made in paying
revenue, cannot assign his interest in the holding. The same remarks
apply to a lessee of an estate under the management of a Court of Wards.