Concept of Transfer of Property | Civil Law for Judiciary Exams PDF Download

Transfer of Property Act 1882

• Definition of Transfer of Property: The act defines transfer of property as the act by which a living person conveys property to one or more living persons, including themselves, either presently or in the future.
• Scope of the Act: The Transfer of Property Act 1882 regulates the transfer of movable and immovable, tangible and intangible assets such as copyrights, trademarks, and patents in the Indian subcontinent.
• Types of Property Covered: The Act governs various kinds of transfers, including sale, mortgage, lease, exchange, and gift.
• Effective Date of the Act: Enacted on February 17, 1882, the act officially came into force on July 1, 1882.

Introduction to Transfer of Property

• Definition of Transfer of Property: Transfer of property involves the conveyance of property by a living individual to others, including themselves, either immediately or at a later date.
• Enactment and Enforcement of the Act: The Transfer of Property Act 1882 was passed to govern and oversee property transfers in the Indian subcontinent.
• Coverage of Assets: The act extends its jurisdiction over movable and immovable, tangible and intangible assets, including copyrights, trademarks, and patents.

Kinds of Transfers

• Sale: In a sale, ownership of property is transferred from the seller to the buyer in exchange for a consideration, usually money.
• Mortgage: A mortgage involves the transfer of an interest in property to a lender as security for a loan.
• Lease: A lease grants the right to use a property for a specified period in exchange for rent.
• Exchange: Exchange refers to the mutual transfer of properties between parties.
• Gift: A gift is a voluntary transfer of property from one party to another without any consideration.

Essentials of a valid transfer

It must be inter-vivos

• The transfer must be made between living persons according to Section 5 of the act. This means that both the transferrer and the transferee must be alive at the time of the transfer. Living persons also include companies, corporations, or associations.

The property must be transferable

Section 6 specifies certain transfers that are considered invalid, such as:

• The chance of an heir-apparent succeeding to an estate or obtaining a legacy.
• A mere right of re-entry for breach of a condition subsequent.
• An easement cannot be transferred apart from the dominant heritage.
• An interest in property restricted to the owner personally.
• A right to future maintenance.
• A mere right to sue.
• A public office or the salary of a public officer.
• Stipends for certain government pensioners.
• No transfer can be made if it is opposed to the nature of the interest affected, for an unlawful object or consideration, or to a legally disqualified transferee.
• Exceptions for certain tenants, farmers, or lessees under specific conditions.

No transfer can be made

• In cases where it is opposed to the nature of the interest affected, for an unlawful object or consideration, or to a legally disqualified transferee.
• A provision regarding tenants with untransferable occupancy rights or certain farmers or lessees.

Persons competent to transfer under Section 7

• Every person competent to contract under Section 11 of the Indian Contract Act.
• Examples of competency issues involving minors, lunatics, and guardianship issues.
• Criteria for a person to be considered competent to transfer property.
• Explanation of how a transfer of property passes the interest from the transferor to the transferee.