A transfer refers to a conversion of a thing from one person to another person. Property may be defined as anything physical or a virtual entity owned by an individual or a group of people. A property can be transferred from one person to another person by transferring rights, or interest, or ownership, or possession the party can satisfy either or all the ingredients.
The transfer of property can be made in the two following ways:
First: act of the parties;
Second: by law.
Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It refers to an act done by a living person conveying property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individuals whether incorporated or not.
Important concepts highlighted in the Act
- Immovable property: According to the General Clauses Act, 1897 immovable property includes land, benefits arising out of the land, things that are attached to the land. Under transfer of property, the immovable property can be defined as all property are immovable property other than standing timber, growing crops, or grass.
In this case, large artillery was fixed for blowing liquor. The Court held that it would be considered as movable property if it was fixed in the land, not with an intention for beneficial enjoyment.
- Mortgage debt: After the amendment of 1900 mortgage debt was excluded from actionable claims. In Peruma animal vs. Peruma Naicker, Wallis C.J.held that before 1900 mortgage debts could be transferred as actionable claims, it was excluded from the actionable claims, the legislature intended that the mortgage debt must be transferred in mortgagee’s interest through a registered instrument.
- Instrument: According to the transfer of property Act, 1882 instrument refers to a non-testamentary instrument. It acts as evidence of the transfer of property between living parties. According to the legal dictionary, an instrument refers to a formal legal document.
- Attested: It refers to a formal document signed by a witness. The transferors of the property are known as the executant. The amendment act was introduced in 1926 which mentioned that there must be two or more witnesses who must sign the document in presence of the executant not necessarily at the same time but they shouldn’t be the party to the transfer.
- Registered: According to the transfer of property Act, 1882 registered refers to any property registered where the act is operative. One must comply with various procedures of registration.
- The description of the property should be mentioned.
- Avoid fraud.
- Deeds should be presented by a competent person.
- The property must be registered in the same territory where the registered office is situated.
- Actionable claims: A claim to any debt, other than the debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in a movable property or to any beneficial interest in movable property not in the possession, either actual, or constructive possession of the claimant which the civil courts recognize as affording grounded of relief, whether such debt or beneficial interest be existent, accusing, conditional or contingent.
Illustration: A has given his house to B for rent but B hasn’t paid the rent because this would amount to an actionable claim.
- Notice: Notice refers to knowledge of the fact. The person has knowledge of facts about various circumstances. According to the Transfer of Property Act, 1882 it prescribed two kinds of notices
Actual or implied notice: The person having actual knowledge about a particular fact.
Constructive notice: The knowledge of the fact is obtained through circumstances.
Kinds of transfer under the Transfer of Property Act, 1882
- Sale of immovable property: There is a transfer of ownership from the buyer to the seller in exchange for the price. Delivery of tangible property from the seller to the buyer.
- Mortgage of immovable property: The property gets transferred from the buyer to the seller in the form of a mortgage where the immovable property is mortgaged to secure a loan. The mortgagor has to pay the principal loan along with the interest to release the immovable property from the mortgage.
- Leases of immovable property: The possession of the property is being transferred from one person to another person for a fixed price in this scenario there is no transfer of ownership.
- Exchange of immovable property: When two persons mutually decide to transfer immovable property it would be referred to as an exchange of property.
- Gift of immovable property: According to the transfer of property Act, 1882, gift refers to a transfer of movable or immovable property violently or without the consideration, by one person that is donee, to donor transfer is accepted by and on behalf of the donee.
Features of Transfer of Property Act, 1882
- The preamble of the transfer of property Act lays down that it is related to the transfer of property by the act of the properties.
- The transfer of property act, 1882 provides a uniform and a clear law concerning the transfer of movable property from one living person to another living person by the act of parties.
- The Transfer of Property Act, 1882 is an extension of the Indian Contract Act,1872 because the contract act was recognized as an inexhaustive code.
- The transfer of property law is not a copy of the English transfer of property laws that was enacted based on socio-economic conditions of the country.
- The transfer of property Act, 1882 cannot be considered as totally exhaustive; it covers the transfer of immovable property from the act of parties.
- Transfer of property is subject to the concurrent list that provides power to both the state legislature and the parliament to pass laws related to the matter of transfer of property.
- The act covers five types of transfer of immovable property they are as follows: a) Mortgage b) gift c) sale d) actionable claims e) lease.
- The transfer of property Act, 1882 is a law that applies lex-loci to all people living in that jurisdiction, not like personal laws that differ from person to person.
- The transfer of property Act, 1882 is governed by various principles like justice, equity, and good conscience.
- Initially, at the time of implementation, the act didn’t apply to the State of Bombay, Punjab, and Delhi as because they had their own acts related to property matters. Currently, the transfer of property act doesn’t apply in Punjab; it complies with the rule of good conscience, equity, and justice.
- Transfer of property Act, 1882 highlights the provision of inter-vivos parallel to the existing laws relating to the testamentary and interstate transfer.
- The transfer of property act, 1882 is a general law and therefore it cannot prevail over the special laws passed by the parliament.
- Under the Transfer of Property Act, 1882 it mentions that absolute conditional restraint is void and partial conditional restraint on the transfer of property is valid.
The Act was introduced with an intention to create a comprehensive Act which provides information about the transfer in a very simple language during the time of introduction it was not complete and had various uncertainties. It has gone through various amendment processes and the act has proved it time and again about its effectiveness. In India, many more such acts like transfer of property Act, 1882 are still in need to be implemented.
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