Property can be transferred through different modes, that is through sale, mortgage, lease, gift, exchange etc. Under the Transfer of Property Act 1882, Section 54 states that sale is defined as the transfer of ownership of a property in exchange for a price paid or promised or partly paid or part promised. Generally speaking, in a sale of immovable property, the three requirements of law are that transfer of property by sale must take place with the help of a validly executed sale deed, by the transferor in writing, is properly attested, and registered.
Section 54 further lays down the manner in which a sale of immovable property should be effected. In case of tangible immovable property of value Rupees hundred and upwards or in case of reversion or any other intangible thing, a sale can be made only by a registered instrument. When the tangible immovable property is of value less than rupees hundred the sale can be made by a registered instrument or by the delivery of the property.
Essential Elements of Sale of Immovable Property
The transferor of the immovable property executing the sale is known as the seller. The person who receives the property sold to him for a consideration that is the transferee is known as the buyer. The transferor or the seller must be competent to contract and entitled to the transferable property. This means both parties should not be minors or be of unsound mind. A minor can be a mortgagee provided there is no covenant for him to perform or a minor can be a purchaser when the sale does not impose any obligation upon him and lastly a minor can also be a donee of a gift provided the gift is onerous.
- Subject matter of the transfer:
When a property is transferred with an intention to sell the property to the buyer for a consideration, the transfer of property includes the delivery of the property along with the ownership rights of that property. Immovable property includes the benefits arising out of the land and the things attached to the earth except for standing timber, growing crops and grass. Under section 6 a property of any kind may be transferred except the following-
1. A transfer of spes (expected) succession
2. The right of re-entry
4. Restricted interest which could be right to future maintenance
5. A right to sue
6. Public office
7. Pension or stipends allowed to the military, air force, naval and civil pensioners of the government
8. A transfer for an unlawful purpose or consideration
9. Statutory prohibitions on transfer of interest
A transfer is not a sale if no price is paid or promised or partly paid or promised. The transaction under sale without consideration will not amount to gift unless evidence is adduced for it nor can it be an exchange if the transferor does not transfer ownership of the property. It may be paid in a lump sum or in instalments as agreed between the parties. There is nothing illegal, or contrary to public policy if the parties agree that the payment of the consideration shall be postponed in certain events, or that it shall not be paid at all if the property is lost.
In conclusion, a sale of an immovable property between competent parties is executed by a registered instrument for a consideration in the form of money which is paid, part paid, promised or partly promised.
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