DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

FINAL PROJECT

Law of Property - I

Meaning of ‘living person’ as mentioned in Section 5 of Transfer of Property

Ac, 1885.

Submitted by- Submitted to-

Bharat Joshi Dr. Manish Singh

Roll no- 39 Associate Professor (Law)

Sem- V, Sec- A

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 ACKNOWLEDGEMENT

I am most profoundly grateful to my teachers Dr. Manish Singh for providing me this wonderful

opportunity to work upon this project after doing which I feel to have enlightened myself in this

regard and for the precious time they spent guiding us for the completion of this project.

I also thank the members of the library staff for their cooperation in making available the books

and magazines and allowing us to access the internet even during their free time and whenever

we required to do so.

Last but not the least I would also like to thank my friends. It was only because of their excellent

help that I have been able to complete my project.

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 Table of Contents
Introduction......................................................................................................................................3

SECTION 5 OVERVIEW...............................................................................................................5

Transfer of Property.....................................................................................................................5

Act of conveyance.........................................................................................................................6

Property.......................................................................................................................................7

MEANING OF LIVING PERSON UNDER S.5 OF TPA, 1885....................................................8

Status of a Hindu idol under S.5 of TPA:....................................................................................8

Status of Court under S.5 of TPA:...............................................................................................9

Status of Unincorporated Company under S.5 of TPA:...............................................................9

Other Views regarding “living person”.......................................................................................9

EXCEPTIONS:..............................................................................................................................11

CONCLUSION..............................................................................................................................13

BIBLIOGRAPHY..........................................................................................................................14

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 Introduction

Every person who is competent to contract is competent to transfer property. The transfer may be

in whole or in part. He should be entitled to the transferable property, or authorised to dispose off

a transferable property which is not his own. The right may be either absolute or conditional. The

property may be movable or immovable, present or future. Such transfer can be made orally,

unless a transfer in writing is specifically required under any law. A transfer of property passes

forthwith to the transferee, all the interest which the transferor is then capable of passing in the

property, unless a different intention is expressed or implied. The beginning of Section 5 of the

Transfer of Property Act (hereinafter, ‘TPA’) , 1885 states that ‘…transfer of property means an

act by which a living person conveys property…’. This implies that the property transferred

under the TPA must be by a “living person”. These words are used as the transfer under the Act

must be by a deed inter vivos and not by will. Both the transferor and the transferee must be

living, which include under Section 13 a person not in existence at the date of the transfer. Hence

it is important to understand what this term means and how it has been interpreted by jurists,

authors and like. A “person” is defined in the General Clauses Act,, 1897 as including “any

company or associate or body of individuals whether incorporated or not. Such company or

association or body of individuals will be a juristic person capable of holding property. A Joint

Hindu family, a Hindu math, a Hindu idol and the Almighty are all juristic capable of acquiring

and holding property and of vindicating legal rights. The section has been amended by the

Amending Act XX of 1929 by the insertion of a paragraph to the effect that living person

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includes a company or association or body of individuals whether incorporated or not. Company

is a “juristic person” and is also covered within the meaning of “living persons”.

SECTION 5 OVERVIEW
Transfer of Property
Transfer of Property means an act by which a living person conveys property, in present or in
future-

a) to one or more other living persons; or

b) to himself; or
c) to himself and one or more other living persons.1

The word 'transfer' is defined in Section 5 with reference to the word 'convey'. It conveys the
meaning that a right in property passes from one living person to another. Ordinarily it is not
understood to cover any testamentary disposition. Rather it is understood to convey transfer inter
vivos, i.e., as an act by which a living person gives away property in present or future to one or
more other living persons.2 The performance of such an act is to be regarded as transfer the
property. According to this section, "living person" includes a company or association or body of
individuals, whether incorporated or not. However, the general provisions of this Act will not
affect provisions of ay special law dealing with transfers of property by companies, associations
or body of individuals.

An analysis of this definition can be attempted under the following points:

i. The transfer of property is an act of conveyance.

ii. Conveyance is affected through living persons.
iii. Property may be conveyed either to one or more other living persons, or to himself, or to
himself with one or more other living persons.

1
Section 5, TPA, 1882.
2
Sanjiva Roy, Transfer of Property Act, 4th Ed., Vol. 1, The law Book Company (P) Ltd., Allahabad, 1989. P.77.

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 iv. Property may be transferred either in future or in present.3

The Supreme Court stated the factors to be taken into account for determining the nature of
transaction. The true nature of a document must be determined by having regard to the intention
of the parties as well as the circumstances surrounding the making of the transaction and the
wording of the document.4

Property from one person to another can be transferred in several ways, such as by way of
private or a court sale, gift, will, inheritance, relinquishment, dedication, etc., yet, all these kinds
of transfer are not subject to the application of TP Act. Under s.5 of the Act, the term 'transfer'
has been defined as an act of a living person whereby he conveys existing property to one or
more living persons, and only those transactions that are covered under the term 'transfer' are
subject to the application of this Act. Transfer of title that takes place in other ways are governed
by different enactments. For example, testamentary succession is regulated primarily by the
Indian Succession Act, 1925 and for Muslims by their Quranic law; and intestate succession is
subject to the rules laid down by the respective personal laws to which the deceased was subject
to. Similarly. dedication of property for religious and charitable purposes is governed by several
religious and charitable endowment Acts passed for this very purpose.5

Act of conveyance
The section shows that transfer of property is an act of conveyance of the property by a person to
one or some other living persons by the Amendment Act of 1929. The point to be considered is
what are the implications of this addition. In ordinary circumstances, a transfer implies the
change of ownership. This in its turn implies that the property belonging to one person changes
hands and therefore, the word 'transfer' implies the existence of two distinct persons, one called
the transferor and the other called the transferee. The identity of both the transferor and the
transferee should, therefore, be distinct.6 For transfer of property it is necessary that the property
must be conveyed i.e., it must be handed over to other person. The Act has nowhere indicated
that the owner of the property must handover the property. It is also not necessary that all the

3
Dr. Avatar Singh, Textbook on The Transfer of Property Act, Second Ed., Universal Law Publishing House, p.27.
4
Unnabai v Nilkanth Dhandiba Chavan (2005) 6 SCC 243.
5
Dr. Poonam Pradhan Saxena, Property Law, LexisNexis Gurgaon, 2nd edition, 60.
6
Sanjiva Roy, Transfer of Property Act, 4th Ed., Vol. 1, The law Book Company (P) Ltd., Allahabad, 1989. P.77.

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rights or interest in the property must be conveyed to another person. 7 It implies that the person
conveying property is entitled to the property sought to be conveyed and it is being conveyed to
a person who has no title to it otherwise.8 Conveying of property involves creation of new title or
interest in favour of the transferee.9In conveyance, through this instrument of transfer, the title or
rights are conveyed to the transferee, for the first time. The transferor in divested of the right
conveyed and the transferee acquires it for the first time under this instrument.10

Property
The legislature has not attempted to define the word 'property', but it is used in TP Act it its
widest and most generic legal sense.11 Property is the most comprehensive of all terms which can
be used, in as much as it is indicative and prescriptive of every possible interest which any
person can have, and it is generally understood as anything that is capable of being owned. Thus
it means not only the physical objects, but also includes rights and interests existing in, or
12
derived out of, the actual physical object. A property is a bundle of rights. When a property is
transferred, the rights along with property are transferred too. However an arrangement maybe
made by which some of the rights may be transferred but not all.

Some interests in property are future, and are called in English law reversions and remainders. A
reversion is the residue of an original estate which is left after the grantor has granted a smaller
estate. Thus, the interest of a lessor is a reversion, a future estate pending the termination of a
lease.13 It should be noted here that a transfer of future property is not valid in India but a
conveyance of such property may be valid as a contract to assign. When the property comes into
existence, equity festers upon the property and the contract to assign becomes a complete
assignment.14

7
Dr. Avatar Singh, Textbook on The Transfer of Property Act, Second Ed., Universal Law Publishing House, p.27.
8
Lion Edwards Ltd. v State of West Bengal, AIR 1967 CAL 191
9
Official Assignee Madras v Tehmina Dinshaw Tehrani, AIR 1972 Mad 187.
10
Dr. Poonam Pradhan Saxena, Property Law, LexisNexis Gurgaon, 2nd edition, 59.
11
Bansigopal v BK Bannerji AIR 1949 All 433
12
Dr. Poonam Pradhan Saxena, Property Law, LexisNexis Gurgaon, 2nd edition, 60.
13
Sanjiva Roy, the Transfer of Property Act, 4th Ed., Vol. 1, The law Book Company (P) Ltd., Allahabad, 1989.
P.71.
14
Purna v Beirma ILR (1939) 2 Cal 341

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 MEANING OF LIVING PERSON UNDER S.5 OF TPA, 1885.

One of the basic features of the definition under section 5 is that it governs transfers only
between living persons; or transfer inter vivos. The term includes a juristic person, a company, or
association or a body of individuals but does not include an idol of God.

Status of a Hindu idol under S.5 of TPA:

The Act has given right of conveying property to corporations, companies, firms, etc because
they have been created by fiction of law and are known as juristic persons. Similarly, an idol or a
deity, which has been recognized as a juristic person, is capable of holding property but it is not a
living person. A dedication of property to a deity does not come within the purview of this Act
(section 122). According to the High Court of Allahabad a gift to God Almighty is a transfer
governed by the provisions of the Act wherein the phrase “living person” within the meaning of
the Act simply means an entity which has a personality of its own, which exists and which has
the capacity of holding property. The High Court of Allahabad held that a juristic person is not
necessarily a living person and that the fact that for some purposes the law, by a fiction, invests
non-animate bodies with the rights of persons, would not make juristic persons living persons for
all purposes, Accordingly, it was held that Hindu idol, though it might be a juristic person, is not
a living person, and that in any view the Almighty is not a living person. 15 Further in the case of
Champa bibi v. Panchiram Nahata Siva Bugraha and anr., it was held that a gift to God
Almighty is not a gift to living person and does not require a registered instrument. A transfer of
property o an idol is not bad if it is not covered by section 5. Such a transfer will not be subject
to the provisions of the Act.16

15
Shyamal Ranjan Mukherjee v. Nirmal Ranjan Mukherjee A.I.R. 2008 (NOC) 568 (All) 63.
16
AIR 1963 Cal 551.

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Status of Court under S.5 of TPA:

Court is not a juridical person. It cannot take property and cannot assign property. 17 It is not a
“living person” and a court sale is not a “transfer of property” as defined in this section. 18 It has
been held that a sale deed executed by the direction of the Court in pursuance of decree for
specific performance is a transfer by a Court on behalf of the judgment debtor and the sale deed
so executed has got all the characteristics of a transfer inter vivos.

Status of Unincorporated Company under S.5 of TPA:

The words “whether incorporated or not” in the paragraph inserted in the section by the 1929
amendment, applies only to associations or body of individuals. Not to company. A company
before its incorporation is not a living person. The declaration of the promoter of the company
that the property is held by him for the company to be formed does not constitute either sale,
mortgage, lease, exchange, or gift.19 The expression ‘transfer of property’ means an act by which
a living person conveys property to one or more other living persons.

Other Views regarding “living person”.

A sale or transfer postulates two persons, namely, a vendor or transferor and a vendee or
transferee. There cannot be a transfer by a living or an existing person to a non-existed person.
Thus, there cannot be a transfer by an existing company of its assets to a new company effective
from a prior date on which date the new company was not in existence.20

The transfer by way of waqf has been recognized in State of UP and the right of the transferor
becomes extinguished and the right of transferor tenure-holder vests in God. Even though the

17
A.I.R. (1929) All 834.
18
A.I.R. 1929 S.C. 800.
19
A.I.R. 1984 Andhra Pradesh 176.
20
(1982) 137 I.T.R. 493.

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transfer of a property to deity is not between living persons yet it is a recognized mode of
transfer by which the transferor divests himself of a property and the same vests in the almighty.
Therefore, even if a transfer by way of endowment is not a recognized mode of transfer under
S.5 of TPA when a tenure-holder in UP, transfers his land by way of an endowment, his right in
that land becomes extinguished and it vests in God. Thus, the land so transferred, is to be
excluded in view of S.5 of UP Imposition of Ceiling on Land Holdings Act, 1961.21

The words “living person” can only mean a human being, who is alive and conveys his property
to another person. A person, who disposes of his property by will, does not convey it as a living
person because the transfer takes effect after his death. There is no present transfer.22

The words are used as the transfer under the Act must be a deed inter vivos and not by will.
According to the Section, both the transferor and the transferee must be living, which includes
Section 13 a person not in existence at the date of transfer. 23 The expression ‘inter vios’ refers to
transfer or conveyance of the property from one living person to another. Thus it is an act
between two living persons who are parties to such transaction, which takes place between two.

Where property was acquired by or transferred in favour of Secretary of unregistered Society or

Club, Secretary of unregistered club or society has no legal status to hold or acquire property in
question because the same cannot come within the definition of “living person” within the
meaning of section 5 of the Act.24 As such the application by members of club claiming right if
pre-emption on ground of transfer of adjoining land was not maintainable.25

In Bhupathi Nath v Ram Lal26, a full bench of the Calcutta High Court dealing with a Hindu will,
held that the principle of Hindu law which invalidates a gift other than to a sentient being
capable of accepting it does not apply to a bequest to the trustees for the establishment of an
image and the worship of a Hindu deity after the ancestor’s death not does it make such a
bequest void. The Full Bench, after examining the Hindu texts and authorities observed that

21
A.I.R. 1926 All 552.
22
Sanjiva Roy, the Transfer of Property Act, 4th Ed., Vol. 1, The law Book Company (P) Ltd., Allahabad, 1989.
P.113.
23
Section 13, TPA.
24
Usha Rani Kundu v. Agradut Sangha and other  AIR 2006 (NOC) 911 Cal.
25
Sohoni, Vishwas Shridhar, Transfer of Property Act, Premier Publishing Company, Allahabad, 2008. p. 66.
26
(1910) 37 Cal. 128.

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according to strict Hindu juridical notion there can be no gift in favor or Gods for in the case of
deities there cannot be any acceptance and therefore necessarily any gift.

EXCEPTIONS:

Section 13 and 14 are an exception to “living person” as defined under section 5 of the TPA.
Section 13 and 14 talk about transfer for the benefit of unborn persons and rule against
perpetuity. Section 13 lays down that where on a transfer of property , an interest therein is
created for the benefit of a person not in existence at the date of the transfer , subject to a prior
interest created by the same transfer , the interest created for the benefit of such person shall not
take effect , unless  it extends to the whole of the remaining interest of the transferor in the
property . Such an interest may be created for the benefit of an unborn person if  the following
conditions are fulfilled ---

 1) Interest of the unborn person must be preceded by a prior interest .

 2) When the prior interest comes to an end , the unborn person must be in existence and he must
have the interest at the latest when he attains majority.
 3) The whole of the remaining interest of the transferor in the property must be  comprised in
the interest created for the benefit of such unborn person .
 
Section 13 has further illustrated the matter in the like manner:

Where A transfers property , of which he is the owner , to B in trust for A and his intended wife ,
successively for their lives , and , after the death of the survivor , for the eldest son of the
intended marriage for life , and after his death for A’s second son , the interest so created for the
benefit of the eldest son does not take effect , because it does not extend to the whole of A’s
remaining interest in the property .

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Therefore , the effect of section 13 is that there cannot be a direct transfer to a person who is not
in existence , or unborn person , on the date of the transfer . It is for this   reason that the said
section uses the expression ‘for the benefit of’ and not ‘ transfer to an unborn person’.

Section 14 further provides that the unborn person, in whose favour the interest is created, must
have come into existence on or before the expiry of the life or lives of the person(s) in whose
favour the prior interest is created as required under section 13.

Therefore it can be concluded that:

 The effect of these Rules is that a transfer/ gift can be made to an unborn person subject to the
following conditions: (i) that the transfer/ gift shall be of the whole of the remaining interest of
the transferor/ testator in the thing transferred/ bequeathed and not of a limited interest; and (ii)
that the vesting is not postponed beyond the life in being and the minority of the unborn person.

 In simple terms, while section 13 of TOPA lays down the mechanism for transfer of property
for the benefit of unborn person and "what property" is required to be ultimately transferred in
favour of an unborn person in order to validate such transfer, section 14 of TOPA provides the
"maximum period as to when" such property can be vested upon such unborn person.

 Section 14 of TOPA supplements section 13 of TOPA and thus, it is pertinent to note that when
an interest in any property is intended to be transferred in favour of an unborn person, sections
13 and 14 of TOPA are required to be read together and the provisions contained there under are
required to be duly complied with, in order to give effect to the intended transfer in favour of
such unborn person.

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 CONCLUSION

One of the basic features of the definition under section 5 is that it governs transfers only

between living persons; or transfer inter vivos. The term includes a juristic person, a company, or

association or a body of individuals but does not include an idol of God. Hindu idols are not

“living person” within the meaning of Section 5 and neither is a Court nor an unincorporated

company a living person. Therefore, property under the Transfer of Property Act cannot be made

to these as they are not “living persons”. Yet, there exists an exception to this rule, the same

being mentioned under section 13 and 14 of the Act which talks about transfer for the benefit of

an unborn and that there exists a rule against perpetuity against the same. In simple terms, while

section 13 of TOPA lays down the mechanism for transfer of property for the benefit of unborn

person and "what property" is required to be ultimately transferred in favour of an unborn person

in order to validate such transfer, section 14 of TOPA provides the "maximum period as to

when" such property can be vested upon such unborn person.

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 BIBLIOGRAPHY

1. Sanjiva Roy, the Transfer of Property Act, 4 th Ed., Vol. 1, The law Book Company (P)

Ltd., Allahabad.

2. Dr. Avatar Singh, Textbook on The Transfer of Property Act, Second Ed., Universal Law

Publishing House, p.27.

3. Mulla on Property Law.

4. <http://www.mondaq.com/india/x/366482/wills+intestacy+estate+planning/A+Brief+Wri

teUp+On+Transfer+Of+Property+For+The+Benefit+Of> accessed on 10.10.2015.

5. <http://lawstudentshelpline.com/index.php/transfer-of-property-act/2-uncategorised/161-

q-when-property-can-be-transferred-for-the-benefit-of-unborn-person> accessed on

08.10.2015.

6. <http://www.lawctopus.com/academike/transfer-property-unborn/> accessed on

08.10.2015.

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