RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PROPERTY LAW ASSIGNMENT

ON

Transfer of Property Act, 1882: Object and Scope

SUBMITTED TO SUBMITTED BY

Dr. JASWINDER KAUR HARSH MANGAL

ASST. PROFESSOR OF LAW ROLL NO.: 18008

RGNUL, PATIALA SECTION: A

GROUP: 2

1
 Contents

INTRODUCTION.......................................................................................................................................4

BACKGROUND OF TRANSFER OF PROPERTY ACT, 1882................................................................6

OBJECT OF TRANSFER OF PROPERTY ACT.......................................................................................9

SCOPE......................................................................................................................................................10

Different Ways in Which Property Can Be Transferred........................................................................11

Sale of immovable property:..............................................................................................................11

Mortgage of immovable property:.....................................................................................................11

Leases of immovable property...........................................................................................................11

Exchange of property:........................................................................................................................11

Gift of Immovable Property:..............................................................................................................11

Property that Can or Cannot be Transferred..........................................................................................12

Muslim Laws.........................................................................................................................................13

CONCLUSION.........................................................................................................................................14

BIBLIOGRAPHY.....................................................................................................................................15
 ACKNOWLEDGEMENT
On completion of this project it is my present privilege to acknowledge my heartfelt gratitude
and indebtedness towards my teacher for her valuable suggestion and constructive criticism.
Their precious guidance and unrelenting support kept me on the right path throughout the whole
project and very much thankful to my teacher in charge and project coordinators for giving me
this relevant and knowledgeable topic.
 INTRODUCTION
Importance and relevance of property in today„s materialistic world is undeniable. Property
related disputes dominate the courts among strangers, former friends and relations who fight
tooth and nail with fret and flume wasting several precious years. It is also true that relevance of
property in the socio–economic life of an individual is relatable more with respect to its
disposition rather than its abstract content which indicates the inherent necessity of awareness of
the basic concepts with respect to transfer of property. Fighting immense battles and losing
precious lives and time can be avoided to a large extent with right guidance at the initial level of
its transfer.1

Property can be transferred in several ways, and conveyance of title in India is not subject to one
single piece of legislative enactment. Thus different legislations exist that govern the transfer of
title from one person to another with respect to the property depending upon the mode of
conveyance. One of the basic features of the Transfer of Property Act, 1882 is that it governs
transfer of property inter vivos or between living persons only. It does not apply to acquisition of
title through inheritance and succession which are subject to distinct religious specific personal
laws, including the Indian Succession Act, 1925. It is also inapplicable to dedication of property
to God or where the transfer is subject to the relevant religious and Charitable Endowment Acts.

The Transfer of Property Act primarily deals with transfer of immovable property and interests
in immovable property. However, some of its provisions also apply and govern transfer of
movable property. It provides a specific method of transfer of immovable property and one of the
very important features of the Act is that barring few exceptions, transfer of immovable property
is no longer a private affair as it requires compulsory registration of the transfer document.

With the exception of certain instances, the Act does not govern the transfer of property by
operation of law, such as sale by the order of court, auction or forfeiture as well as transmission
of title under other laws like Hindu Succession Act. As such, transfers by will and inheritance are
not governed by the Act. Section 5, under Chapter II of the Act, defines transfer of property as
“an act by which a living person conveys property, in present or in future, to one or more other

1
Dr. Poonam Pradhan Saxena, The Transfer of Property Act, 2nd Edition, 2011, Lexis Nexis Butter Worths,
Introduction, p. XIII.
living persons, or to him and one or more other living persons; and „to transfer property‟ is to
perform such act”. Living person includes a company or association or body of individuals,
whether incorporated or not.

The person transferring the property is referred to as the transferors while the person to which the
property is being transferred, is referred to as the transferee. Where property is transferred
subject to a condition or limitation absolutely restraining the transferee or any person claiming
under him from parting with or disposing of his interest in the property, the condition or
limitation is void, except in the case of lease, under Section 10 of the Act. Also, where, on a
transfer of property, under Section 11, an interest is created absolutely in favor of any person, but
the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular
manner; he shall be entitled to receive and dispose of such interest as if there were no such
direction.
 BACKGROUND OF TRANSFER OF PROPERTY ACT, 1882

Prior to 1882, the transactions with regard to immovable property were governed by a few
regulations and principles of justice, equity and good conscience as these prevailed in England.
Realizing that the existing regulations covered very few points regarding transfer of property and
the equity principles could not always be applied to the peculiar social conditions in this country,
a draft bill was sent by the Secretary of State tor India to the Governor General's Council in
1877. After some criticism and by making relevant modifications, it was passed into law in 1882.

However, it came to be realised sooner than later that the Act has failed to bring certainty
regarding the branch of law covered by it. Conflicting decisions were available from different
high courts regarding most of the provisions of the Act within a short span of thirty years. The
exercise to examine the conflicting decisions and resolutions thereof was started in 1927 and
completed in 1929 through the Transfer of Property (Amendment) Act. Although titled as the
amending Act, it was an exercise to overhaul the provisions of the Act. The Transfer of Property
Act is not an exhaustive piece of legislation. It does not take into its fold the entire gamut of
property law. This is evident from the preamble to the Act, which put the object of the Act as to
define and amend (not consolidate) certain parts of law relating to transfer by act of parties. The
Act is not an exhaustive code in property matters can be seen from the following facts:

(a) The Act is essentially applicable only to those transactions wherein the subject matter of the
transfer is immovable property;

(b) The Act applies only to transfers by act of parties and not the ones by operation of law;

(c) The Act applies only to transfers inter-vivos and not to transfers resulting from testamentary
instrument;

(d) The Act does not apply to government grants;

(e) The Act does not apply to transfers made by or on behalf of the government;

(f) Chapter II of the Act will not affect any rule of Mohammedan law;
The above identified factors restrict the scope of the Act from being labelled as a complete code
on property matters. But the significance of the Act is not diluted thereby. The Act remains
crucial in property matters as it takes within its fold the entire lot of transactions relating to
immoveable property. These transactions may be few in one's lifetime but they could make or
mar not only the party to the transaction but his future generation as well.

Accordingly in 1927, a Special Committee,6 was appointed to examine the provisions of a Bill
prepared by the Legislative Department of the Government of the India for the purpose of
making a general amendment of the Act. The Bill which was the result of their labor was, after a
slight amendment in Select Committee, enacted in the Transfer of Property (Amendment) Act
No. 20 of 1929. The Act as amended sets at rest points on which decisions have been conflicting,
and make several changes in the law, of which the most important are:

 Registration amounts to notice, (Section 3).

 Constructive notice to an agent is notice to his principal, (Section 3).
 Validation of transfers to a class of some members as regards which fails, (Section 15).
 Statutory recognition of the doctrine of part performance, (Section 53A).
 In a mortgage by conditional sale, the condition must be embodied in the same deed,
(Section 58).
 A mortgagor entitled to redeem may require the mortgagees to transfer the mortgage debt
to a third party, (Section 60A).
 Statutory recognition of the mortgagor„s right of inspection of title deeds, (Section 60B).
 Mortgagor„s right to redeem several mortgages to the same mortgagee separately, or
simultaneously, (Section 61).
 Statutory recognition of the mortgagee„s right to compensation for necessary
improvements, (Section 63A).
 Statutory recognition of the mortgagor„s power to lease, (Section 65A).
 Abolition of the remedy of foreclosure in certain mortgages, (Section 67).
 Mortgagee„s obligation to enforce several mortgages by the same mortgagor
simultaneously, (Section 67A).
 Provision for appointment of a receiver by a mortgagee exercising power of sale without
the intervention of the court, (Section 69A).
 An extension of the principle of subrogation, (Section 92).
 A modification of the law of merger, (Section 101).
 Provision requiring registered leases to be executed by both parties, (Section 107).
 OBJECT OF TRANSFER OF PROPERTY ACT

The Act defines certain expressions used in relation to transfer of property and amends the (then)
prevailing rules governing the same. It does not purport to introduce any new principle of law. 2
One of the basic objectives of the Act was to bring in harmony the rules relating to transfer of
property between living persons and those applicable in case of the devolution of the same, in the
event of the death of a person, through intestate and testamentary succession. The Act also seeks
to complete the law of contract, as most of the transfers primarily arise out of a contract between
the parties. The Act has also, by providing for the compulsory registration of the transfers,
changed the nature of a transfer of property from a private to a public affair.

The Transfer of Property Act, 1882 was intended to define and amend the existing law, and not
to introduce any new principle.3 It embodies principles of equity, justice and good conscience.
The chief objects of Transfer of Property Act were first to bring the rules which regulate the
transmission of property between living persons into harmony with the rules affecting its
devolution on death and thus, to furnish and complement the work commenced in framing the
law of testamentary and intestate succession; and secondly, to complete the code of contract law
so far as it relates to immovable property.4

The Act is not exhaustive, and it does not profess to be a complete code.5 This is apparent from
the omission of the word consolidate, which occurs, for instance, in the preamble to the Indian
Evidence Act, 1872.6 The preamble to the Indian Contract Act, 1872 is worded in terms similar
to the preamble of Transfer of Property Act. In Irrawaddi Flotilla Co. v. Bhugwandas,7 which
was a case under the Contract Act, the Privy Council observed that the said Act did not profess
to be a complete code dealing with the law relating to contracts, that is purported to do no more
than to define and amend certain parts of that law, and that the legislature did not intend to deal
exhaustively with the law relating to contracts.

2
Tajjo Bibi v. Bhagwan, (1899) 16 All 295
3
Nalakath Suinuddin v. Kooridakan Sulaiman (2002) 6 SCC 1, para 21.
4
Whitley stokes, Anglo-Indian Codes, vol. I, p 726.
5
HV. Low & Co. Ltd. v. Pulin Beharilal Sinha (1933) ILR 59 Cat 1372
6
Collector of Gorakhpur v. Palakdhari (1890) ILR 12 All 1, p 35.
7
(1891) ILR 18 Cal 620, p 628
 SCOPE

This Act defines and amends certain parts of the law relating to transfer of property by act of
parties. The important words used in the Act are „by act of parties‟, and therefore, it applies and
governs the transfers by act of parties only and does not govern transfers that take place due to
operation of law. Accordingly, it does not govern transfers of property through court auction, 8
forfeiture, acquisition or due to insolvency proceedings or government grants. 9 It also does not
govern transfers of property through intestate10 or testamentary succession11.

It is important to note the meaning of the word property as applied in the act. Property has been
given a rather wide spectrum covering both tangible material things, e.g., land and houses as well
as rights which are not exercised over any material, e.g., a right to repayment of a debt. The word
„transfer‟ in the Act has also been used in a wide sense. It may mean either transfer of all the
rights and interests in the property or transfer of one or more of subordinate rights in the
property. Thus, the expression „transfer of property‟ may, therefore, imply either transfer of
things, transfer of one or more of the rights in a thing, or transfer of a debt.

From the above discussion, it is clear that, the expression transfer of property as defined in
section 5 is wide enough to cover any transaction which has the effect of conveying property
from one living person to another. Since conveying of the property involves the creation of new
title or interests in favour of the transferee. That is to say, if new title or interest has not been
created in favor of the transferee, the property is not conveyed, hence no transfer of property.

In this paper, the researcher seeks to differentiate between the types of property that may be
transferred from the non-transferable type. Also, in the opinion of the researcher, it is essential to
understand the connection that exists between the transfer of property on one hand, and the S. 60
of the Civil Procedure Code, 1908 (hereinafter, the Code) in this regard. The focus of this paper
would be on the provisions of the Act, with close reference to the relevant section of the Code, in
trying to understand the nature of property in general, thereby trying to answer the specific
question of whether or not all property is transferable.

8
The Act does not apply to a sale in execution, Dinendronath Sanyal v. Ramcoomar Ghose, (1881) ILR7 Cal 107
9
Dwarkaprasad v. Kathlen, (1955) ILR 1955 Nag 538.
10
Kishori Lal v. Krishna Kamini, (1910) ILR CaI 377
11
Rajaparthasartbi v. Raja Venkatadesi, AIR 1922 Med. 457.
The Act, the transfer of property passes forthwith to the transferee all the interest which the
transferor is capable of passing and the legal incidents thereof. The Act also allows for oral
transfer except in cases where writing is expressly required by law.

Different Ways in Which Property Can Be Transferred

Sale of immovable property:

Chapter III of the Act, treats transfer of ownership in exchange for a price paid or promised or
part-paid and part-promised as sale of immovable property. A contract for the sale of immovable
property is a contract stating that a sale of such property will take place on terms settled between
the parties. Delivery of tangible immovable property takes place when the seller places the
buyer, or such person as he directs, in possession of the property.

Mortgage of immovable property:

Mortgage, defined by Section 58 in Chapter IV, is an instrument to secure a loan. The transferor
is called a mortgagor, the transferee a mortgagee. The principal money and interest on which
payment is secured for the time being are called the mortgage-money, and the instrument (if any)
by which the transfer is effected is called a mortgage-deed.

Leases of immovable property:

Chapter V also states that a lease of immovable property is a transfer of a right to enjoy such
property for a certain time, in consideration of a price paid or promised, or of money or service
or a share of crop or any other thing of value, that is rendered periodically or as specified by the
agreement between the transferor and the transferee.

Exchange of property:
As per Chapter VI, when two persons mutually transfer the ownership of one thing for the
ownership of another, neither things or both things being money only, the transaction is called an
“exchange”. A transfer of property in completion of an exchange can be made only in manner
provided for the transfer of such property by sale.

Gift of Immovable Property:

Chapter VII of the Act covers the transfer of property by gift. Accordingly, a gift is the transfer
of existing movable or immovable property made voluntarily and without consideration, by one
person, called the donor, to another, called the donee, and accepted by, or on behalf of the
donee.9 The Act states that State Governments, through notification in the official gazette, may
exempt provisions under Section 54, paragraph 2 and 3, 107 and 123, but any district or tract of
country excluded from the operation of the Indian Registration Act, 1908, cannot be covered by
this exemption.

The Act specifically deals with priority of rights created by transfers. It lays down that where a
person purports to create by transfer at different times rights in or over the same immovable
property, each later created right shall, in the absence of a special contract or reservation binding
the earlier transferees, be subject to the rights previously created.

When the property is in dispute and in which any right to immovable property is in question, the
property cannot be transferred during the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or established beyond such limits by
the Central Government, of any suit or proceeding which is not collusive and in which any right
to immovable property is directly and specifically in question, the property cannot be transferred
or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any
other party thereto under any decree or order which may be made therein, except under the
authority of the Court and on such terms as it may impose.

For this purposes,, the pendency of a suit or proceeding is deemed to commence from the date of
the presentation of the plaint or the institution of the proceeding in a Court of competent
jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or
order, and complete satisfaction or discharge of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any period of limitation prescribed for the
execution thereof by any law for the time being in force.

Property that Can or Cannot be Transferred

The Transfer of Property Act specifies that property of any kind may be transferred, except as
otherwise provided by the Act or by any other law in force. Depending on the type of property to
be transferred, transfer of property would include:

1. When the property is land:

a. The easements annexed thereto;

b. The rents and profits thereof accruing after the transfer; and

c. All things attached to the earth.

2. Where the property is a house

a. The easements annexed thereto;

b. The rent thereof accruing after the transfer;

c. The locks, keys, bars, doors, windows; and

d. All other things provided for permanent use therewith.

Where the property is a debt or other actionable claim, the securities therefore (except where
they are also for other debts or claims not transferred to the transferee), but not arrears of interest
accrued before the transfer. Actionable claim is defined as a claim to any debt, other than a debt
secured by mortgage of immovable property or by hypothecation or pledge of movable property,
or to any beneficial interest in movable property not in the possession, either actual or
constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief,
whether such debt or beneficial interest be existent, accruing, conditional or contingent. Where
the property is money or other property yielding income, the interest or income thereof accruing
after the transfer takes effect.

Muslim Laws:
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different
from the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or
right by one person to another in accordance with the provisions given in the Mohammedan law
and includes-

a) A hiba, an immediate and unconditional transfer of the ownership of some property or of

some right, without any consideration or with some return (ewaz); and

b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property
or right. Where a gift of any property or right is made without consideration with the object of
acquiring religious merit, it is called sadaqah.
 CONCLUSION

Every person, who is competent to contract, is competent to transfer property, which can be
transferred in whole or in part. He should be entitled to the transferable property, or authorised to
dispose of transferable property which is not his own. The right may be either absolute or
conditional, and the property may be movable or immovable, present or future. Such a transfer
can be made orally, unless a transfer in writing is specifically required under any law.

The Transfer of Property Act 1882 contains specific provisions regarding what constitutes
transfer and the conditions attached to it. According to the Act, 'transfer of property' means an
act by which a person conveys property to one or more persons , or himself and one or more
other persons. The act of transfer may be done in present or for future. The person may include
an individual, company or association or body of individuals, and any kind of property may be
transferred.

There must be a representation by the transferor that he has authority to transfer the immovable
property. The representation should be either fraudulent or erroneous. The transferee must act on
the representation in good faith. The transfer should be done for a consideration. The transferor
should subsequently acquire some interest in the property he had agreed to transfer. The
transferee may have the option to acquire the interest which the transferor subsequently acquires.

The exercise of option must be during the period of continuation of the contract and not
afterwards. When all these conditions exist, the transferee becomes entitled to the interest, which
is subsequently acquired by the transferor. It is to be noted that the transferee, acting upon the
representation, has no right against any subsequent bonafide transfer for consideration .
 BIBLIOGRAPHY

Books:

1. Sinha R.K., Transfer of Property Act, 1882

2. Tripathi G.P., Law of Transfer of Property Act, 1882
3. Mulla, The Transfer of Property (ed. Solil

Paul) Articles:

1) Jauhar, D.N. Journal of the Indian Law Institute, vol. 44, no. 2, 2002, pp. 288–
291. JSTOR, www.jstor.org/stable/43951816. Accessed 12 Mar. 2020.
2) Battersby, G., and A. D. Preston. “The Concepts of „Property," „Title‟ and „Owner‟
Used in the Sale of Goods Act 1893.” The Modern Law Review, vol. 35, no. 3, 1972, pp.
268–
288. JSTOR, www.jstor.org/stable/1093790. Accessed 12 Mar. 2020.
3) Vaze, Vasant V. “BENAMI (SECRET TRUST) SYNDROME.” Journal of the Indian
Law Institute, vol. 19, no. 2, 1977, pp. 105–130. JSTOR, www.jstor.org/stable/43950470.
Accessed 12 Mar. 2020.
4) Fr. Vinding Kruse. “What Does „Transfer of Property‟ Mean with Regard to Chattels? A
Study in Comparative Law.” The American Journal of Comparative Law, vol. 7, no. 4,
1958, pp. 500–515. JSTOR, www.jstor.org/stable/837262. Accessed 12 Mar. 2020.
5) Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J.
MARSHALLREV.INTELLPROP.L.604
(2016) https://repository.jmls.edu/cgi/viewcontent.cgi?article=1392&context=rip

Online Sources:

I. JSTOR
II. GOOGLE SCHOLAR
III. HEINOLINE
IV. ACADEMIA.EDU
Cases:

a) Rajaparthasartbi v. Raja Venkatadesi, AIR 1922 Med. 457.

b) Kishori Lal v. Krishna Kamini, (1910) ILR CaI 377.
c) Dwarkaprasad v. Kathlen, (1955) ILR 1955 Nag 538.
d) Nalakath Suinuddin v. Kooridakan Sulaiman (2002) 6 SCC 1, para 21.
e) Tajjo Bibi v. Bhagwan (1899) ILR 16 All 295