Meaning of Property
Property in India is classified into two categories: moveable and immovable property. The Transfer of Property Act, 1882, is an ancient piece of legislation that governs the transfer of property between living individuals. It went into effect on July 1, 1882. The act is viewed as an extension of the Contract Law and runs concurrently with the succession laws.
The Transfer of Property Act of 1882 governs both specific immovable property transfers and basic rules governing both movable and immovable property transfers.
Property is defined as a physical or virtual item that an individual or group of people possesses, and transfer refers to things being transferred from one person to another.
Background of Transfer Of Property Act, 1882
Hindus and Muslims in India were regulated by their own rules when it came to transferring property before to the British Era.
When Britishers arrived in India, however, they became active participants in the Indian legal system. Initially, they established informal courts that lacked clear and tangible laws in comparison to English law. As a result, the High Court recommended enacting property transfer laws.
The privy council also warned the authorities that the principles of good conscience, equity, and natural justice were fraught with dangers, and that quick action was necessary.
The First Commission was created by Queen Elizabeth II at the time to address the issues. The panel created a draught and presented it to the legislative council in 1877 after some revisions were forwarded to India. It was sent to the selection committee, but due to public outcry, it was rejected.
The bill was redrafted by the Second Law Commission, with some provisions taken from English real estate law, such as The Law of Conveyancing and Property Act, 1881. This time, the law was designed to suit the Indian population and to be easily understood by Indian non-professional judges.
Despite the Second Commission’s multiple changes, the legislation continued to expand. As a result, a special committee was formed to revise the statute. Various changes were made to broaden the scope and eliminate or correct existing faults.
Nature of Transfer Of Property Act, 1882
Because the Act is civil in nature, a person who commits a wrong under it will be held civilly accountable and will be required to compensate the party who has been injured.
Scope of Transfer Of Property Act, 1882
The Transfer of Property Act is largely concerned with the transfer of movable property from one person to another. It also covers the transfer of property by individuals and businesses.
The act only applies to activities of parties, such as sales, leases, or mortgages, exchanges, gifts, or actionable claims, and not to legal transfers of property, such as inheritance, wills, forfeiture, insolvency, or decree execution.
The following are the points that define the Act’s scope:
• Live Persons: In order for a conveyance to be a transfer as defined in this section, the transferor and transferee must both be living people. A transfer to a living person is not a dedication to God or an idol. This also applies to businesses.
• Applicability: “It extends in the first instance to the entire of India,” reads Section 1 of the Act, “excluding the areas which, immediately before November 1, 1956, were comprised in Part B States or in the States of Bombay, Punjab, and Delhi.” This means that it applies to the whole country of India, with the exception of the part-B territories of Bombay, Punjab, and Delhi. As a result, we might conclude that its scope is restricted.
• Not Exhaustive: As stated in the preface, TOPA is not exhaustive. The phrase ‘consolidate’ is not contained in the preamble, and there are a variety of properties that are not covered by the Act and whose transfer is not governed by it.
• Immovable Property: This Act primarily deals with the transfer of immovable property; nonetheless, it only covers immovable property to a limited extent. The Sale of Goods Act of 1930 deals mostly with movable goods. Furthermore, the TOPA does not apply to Muslim law.
As a result, if a property dispute arises, Muslim Personal Law will take precedence over the Act.
Feature of Transfer Of Property Act, 1882
• It specifies that the act is concerned with the transfer of property through the parties’ act.
• It establishes standard and transparent legislation governing the transfer of immovable property.
• It extends the Indian Contract Act, 1872, because the Contract Act was thought to be insufficient.
• The transfer of property law is not a carbon duplicate of English law, but rather an enactment based on the socioeconomic situation of the country.
• The concurrent list provided in the Indian Constitution includes the issue of property transfer. As a result, both the State and the Parliament have the authority to enact legislation relating to the transfer of property.
• The transfer of property statute applies to all people living in the jurisdiction of the lex loci, rather than to personal laws that vary from person to person.
• The act is governed by several principles, including justice, equity, and good conscience.
• It emphasises the inter-vivos provisions in relation to the current rules on testamentary and intestate succession.
• The act will not be able to override any specific laws relating to property laws.
Essential elements of Transfer Of Property Act, 1882
• Person who is alive or a jurist.
The party transferring property under the above-mentioned Act must be a living or juristic person. A juristic person can be a sole proprietorship, a corporation, or an association, but not a partnership.
• Conveyance is a method of transferring.
Any property conveyance can take place in the present or in the future, as long as nothing is transferred before the title is issued.
• Property must be transferred by a competent person.
The property that is transferred must be documents transferred by a person of sound mind who is not intoxicated and is a major; the law must not exclude him.
• Property cannot be passed down to an unborn child.
Property cannot be transferred to an unborn child, and the person transferring the property’s interest must be at least 18 years old.
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