On July 1st, 1882, the Transfer of Property Act went into effect. The country’s property transfers are governed by this law. Regarding the components and terms of a transfer, it provides particular provisions. This act’s main goal is to clarify and update the legislation governing the transfer of property via the actions of parties rather than through the operation of the law. The phrase “transfer of property” refers to a gesture in which an individual hands up his or her possessions to at least one other person or to himself. Any individual, group of individuals, association, or business is included under the word “person.” It is a transformation process that changes one item into another.
Essentials for Transfer
The term “transfer” has a very broad definition and refers to any transaction in which one person dismantles himself or is stripped of some of his interest, with that interest later vesting or becoming vested in another party. In the case of Ma Kyin Hone v. Ong Boon Hock, a Rangoon High Court judge defined the term “transfer” in this manner (1967). There are several requirements for a legitimate transfer, including the following:
- Transfer must be between two or more living persons
The first need for a lawful transfer is outlined in Section 5 of the Transfer of Property Act, 1882. A living person must transfer property to another living human either between two or more living people. The transferor, also known as the transferor, and the transferee, sometimes known as the transferee, must both be alive individuals on the day of the transfer. The deceased individual cannot get the assets in his or her name. Therefore, for there to be a transfer, there must be a conveyance act by a living person.
- Property must be transferable
The provision that “property must be transferable” also means that, according to Section 6 of the Act, some categories of properties are not deemed transferable. All the assets—with the exception of those listed in Section 6—are regarded as transferrable. In the statute, there are eight exceptions listed:
- An heir apparent: Any distant probability of a recipient inheriting an intestate’s property (Spes Successionis), a connection inheriting a legacy upon the death of a relative, or any other prospect of a comparable nature will be deemed untransferable.
- Easement : A rights to do or continuing doing anything, or to prohibit and continuing to prohibit anything from having done, in, upon, or in regard of certain other because that is not his own, that the owner of property of the land owns for the good use of the property is known as an easement. It cannot be passed on without the prevailing legacy. It was determined that the restriction doesn’t apply to the establishment of new easements in Narsingh Sahai v. Bhagwan Sahai (1909).
- Re-entry rights: Only the owner of the concerned property may transfer a simple right of re-entry for violation of a later condition. This right is a personal one that belongs to the people and cannot be transmitted; if it were, it would be null and invalid.
- Interest confined to personal enjoyment: If the landowner attempts to convey an interest in real estate that is just for his own enjoyment, the transfer will be void. A right to maintenance works cannot be transferred, regardless of how it arises, is secured, or is established. Whatever way emerging has a fairly broad definition and includes situations where the property was established by a will, agreement, or deed.
- Mere right to sue: A simple ability to sue is an individual level right that can only be used by the party who has been wronged and is therefore non-transferable. It cannot be delegated to anybody.
- Offices and Pay Scale: It is not possible to transfer a public officer or a public officer’s salary beforehand or after it becomes payable. The word “public office” is not defined by the act, but generally speaking, it refers to a person who is elected to carry out a public obligation in exchange for receiving a salary that is not transferable.
- Stipend: Government and political annuities, including those granted to retired navy, civil, military, and air force personnel, cannot be transferred. Only the honorarium is transferable; gifts or bonuses from the government, allowances granted in place of supposed land grants, and grants of land in place of pensions are all transferrable, according to how the judiciary has read these situations.
Persons Competent to Transfer
A lawful transfer of property cannot occur if the person making the transfer is ineligible or incompetent, as stated in Section 7 of the Transfer of Property Act, 1882. Consequently, if he is the legal owner or if he has legal power to transfer it, an individual who is competent to do so may do it in a valid manner. The word “authority” can refer to a person, a position within an organisation, a legal right, or the order or consent of a court.
In Raja Balwant Singh v. Rao Maharaj Singh (1920) case, it was decided that a transfer of property by a minor is void. One must also be of sane mind and also have reached an age of majority in sequence to be a competent candidate to transfer the property. Additionally, he must not be ineligible to transfer the property under any laws to which he is subordinate. A deed signed by a minor was void, according to the privy council in the Sadiq Ali Khan v. Jai Kishore case from 1928. Additionally, it was noted that although a minor is unable to transfer and cannot be held liable under the doctrine of estoppel, a transaction to a minor is nonetheless legal.
According to Section 11 of the Indian Contract Act, the competency requirements listed below must be satisfied in order to transfer the property. There is no legal requirement about competency that applies to the transferee. However, if the transfer is made to an unborn person, Section 13 of the Act stipulates that he must be alive at that point of the transaction and that prior interest must be created.
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