On July 1st, 1882, the Transfer of Property Act became operative. It controls the laws governing the transfer of property between living individuals in accordance with the laws governing its devolution upon death. Additionally, it completes the code of contract law with regard to real estate. This Act only deals with the transfer of immovable property between living individuals; it does not address other aspects of property transfer.
Rules relating to transfer of Property
This Act’s Section 3 defines what is meant by “immovable property.” A piece of property is said to be immovable if it doesn’t have any standing trees, growing crops (i.e., vegetables with a separate existence aside from their produce), or grass. As a result, the definition of the meaning is exclusive.
The Transfer of Property Act of 1882 omits a definition for “movable property.” However, movable property is often defined as a piece of property that may be transported from one location to another without causing environmental damage. Movable property is defined by the General Clauses Act as all types of property other than immovable property.
2. To protect the properties from potential disputes and for their evidential value, some standards must be met in order for a property transfer to be effective. A legally binding document that is written, signed by the transferor, attested, and registered must be used to transfer property. Where the law does not expressly require writing, a property transfer can be carried out without it. Under the Act, certain instruments, including the sale of real estate with a value of at least 100 rupees, exchanges, gifts, and others, must be in writing even if they are not registered.
3. Transfer of Property is defined under Section 5 of the Act. A live person transfers their property by doing one of the following: giving it to one or more other living people, themselves, or both themselves and other living people in the present or in the future. The term “person” does not only refer to human beings; it can also refer to a business, an association of people, or a group of people. Consequently, a conveyance act by live individuals is required for a transfer to be legitimate. A partial or full interest in a piece of property may be transferred.
4. The Act recognises many types of property transfers. The transfer of ownership of a property in exchange for a price that has been paid in full or in part, pledged, or sold, is referred to as a sale. When two people trade the ownership of one item for the ownership of another item, whether one item or both items are made up entirely of money, the transaction is referred to as an exchange. The third type is a gift, which is defined as the voluntary and uncompensated transfer of specific existing moveable or immovable property from one person to another that is accepted by the donee. Such acceptance must be made when the donor is still alive and capable of giving, during his lifetime.
The second type is a mortgage, which is the transfer of an interest in a specific piece of real estate to guarantee the repayment of funds provided or to be advanced via loan, the payment of an existing or prospective debt, or the fulfilment of an obligation that could result in a financial liability. A lease is a transfer of movable property that allows the recipient to use it for a set period of time or indefinitely in exchange for payment of a price, a promise to pay a price, a sum of money, a share of crops, a service, or any other valuable thing, and acceptance of the transfer’s terms by the transferor.
5. Section 6 lists 13 categories of property that cannot be transferred; all other categories of property are transferable.
a. The possibility of an heir apparent inheriting an estate, also known as spes successionis. Such a chance is not property in the sense that the Act is intended. It suggests only a remote possibility of success.
b. The possibility of a relative receiving a legacy upon the passing of a kin cannot also be transferred.
c. Any other hypothetical possibility that is comparable to those stated above cannot be transferred.
d. Only the owner of the affected property is allowed to receive a right of re-entry.
e. A transfer of an easement that is not part of the dominant heritage is prohibited.
f. An interest in the property that may only be enjoyed by the owner personally, such as a raj, a religious position, or a service tenure, cannot be transferred.
g. Any future maintenance rights, regardless of how they were gained or established, cannot be transferred.
h. A simple legal right to sue cannot be transferred. Preemption, suing an agent for accounts, prior mesne earnings, and damages for contract breaches are all just rights to sue that cannot be transferred.
i. A public position or a public officer’s salary cannot be transferred, either before or after it becomes payable.
j. Political pensions as well as stipends permitted to government military, naval, air force, and civilian pensioners cannot be transferred.
k. No transfer may be conducted that is inconsistent with the type of interest that would be impacted. As a result, the Inamdar’s attempted “transfer” of a service inam or any alleged “transfer” of res nullius, such as air or water from a river, will be void.
l.No transfer of an illegal item or payment is permitted.
m.Finally, no transfer may be made to a person who is ineligible under the law to receive a transfer.
6. Transferable individualsThe transferor must be legally able to enter into contracts, have the right to transfer property, or have the right to dispose of another person’s transferable property. If a person satisfies the requirements under section 11 of the Indian Contract Act of 1872, they are qualified to transfer property under section 7 of the Act. According to Section 11, a person is competent to enter into a contract when they meet the requirements for being a major, which include being at least 18 years old, of sound mind (able to comprehend the terms of the contract and how they will affect them, and able to form a reasonable opinion), and not being legally barred .As a result, the individuals listed below will be qualified to transfer a property or be permitted to dispose of transferable property that is not his own, either entirely or partially, unconditionally or subject to conditions. A individual who has not reached the age of 18 is considered a minor. Although a minor is ineligible to be a transferee under the law, he cannot be a competent transferor.
7. Oral transmissionA property transfer that takes place orally does not need to be in writing. The execution of such a property transfer is not required by law to be done through the use of a written instrument. It must be specifically addressed in the law in order to count as an oral transfer. The law permits a transfer to be made without a written instrument if it is not specifically stated that one is required, and the opposite is also true.
8. How far is a transfer of future property valid? A transfer of property is defined in Section 5 of the Act. A live person transfers their property by doing one of the following: giving it to one or more other living people, themselves, or both themselves and other living people in the present or in the future. The transfer of property excludes the transfer of unrealized future gains. Therefore, in India, a transfer of future property is less legitimate. However, a conveyance of such property may be legal as an assignment contract before the property is created, equity is attached to the property, and the assignment contract is fully fulfilled.
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