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All The Details of The Transfer of Property Act Under One Umbrella - Getlegal India
All The Details of The Transfer of Property Act Under One Umbrella - Getlegal India
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In India, the property gets divided into two parts- movable How
The transfer, in general, refers to things conversion from one person to another and property is defined as a
physical or virtual entity that an individual or group of people owns.
Table of Contents
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DUTY OF SELLER
How
DUTY OF THE BUYER
1. Br
MORTGAGE 2. Pr
KINDS OF MORTGAGE
CONCLUSION
What is an Instrument?
But when Britishers came to India, they took active participation in the Indian Legal System. Initially, they
established informal courts without clean and concrete laws that were absent compared to England’s law.
Thus, the High Court advised creating laws related to the transfer of property.
The privy council also advised the authorities that the principle of a good conscience, equity and natural
justice has many uncertainties, and immediate action was required.
To solve the issues, the then Queen Elizabeth II appointed the First Commission. After certain amendments
were sent to India, the commission prepared a draft and introduced it in the legislative council in 1877. It
was sent to the selection committee, where it got rejected due to public criticism.
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The bill got redrafted by the Second Law Commission, in which some of the provision was borrowed from
English Law on Real Property, i.e., The Law of Conveyancing and Property Act, 1881. This time, the law got
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shaped to suit the Indian Population that the Indian Non-Professional Judges would easily understand.
Despite various amendments by the Second Commission, there was the expansion of the law. Therefore, a Com
The transfer of property act is primarily applicable to transferring immovable property from one human
being to another. It is also applicable to the transfer of property by individuals or by companies.
The act is only applicable to acts of parties, i.e. sale, leases or mortgage, exchange, gift or actionable claims,
How
and not to transfer of property applicable by law, i.e. it does not cover inheritance, will, forfeiture, insolvency
1. Br
or through the execution of a decree.
2. Pr
3. Co
FEATURES OF TRANSFER OF PROPERTY ACT, 1882
It lays down that the act is related to the transfer of property by the act of the parties.
It provides uniform and clear laws that are concerned with the transfer of immovable property.
The transfer of property law is not a copy of English law but is an enactment based on the country’s
socio-economic condition.
Transfer of Property is a subject of the concurrent list provided in the Constitution of India. Thus, the
power is in the hands of both State and the Parliament to pass laws related to the transfer of property.
The transfer of property act applies to lex loci to all the people living in its jurisdiction, not as per the
personal laws that differ from person to person.
Several principles like Justice, Equity and Good Conscience govern the act.
It highlights the provisions of the inter-vivos parallel to the existing laws related to testamentary and
intestate succession.
The act cannot prevail over the special laws related to the general laws on the property.
For transfer of property under the Act mentioned above, the party should be a living or juristic person. A
juristic person can be an individual firm, corporate, company, association but not a partnership firm <
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Any property conveyance can get done either in the present or future, where it is necessary to ensure that NEE
nothing gets transferred before the title.
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A property cannot get transferred to the unborn child, and the person transferring the interest of the
property should be above the age of 18 years.
How
MEANING OF ‘TRANSFER’ UNDER TRANSFER OF PROPERTY
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The term transfer in Transfer of Property includes the transfer of sale, mortgage, lease, actionable claim, gift 2. Pr
or exchange of property. The term does not include the transfer of property through a court decree or
3. Co
through wills or cases that deal with property succession.
Sale
Lease
Mortgage
Exchange
Gift
Actionable claim
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In the sale of immovable property, ownership is transferred from the buyer to the seller in exchange for a
certain amount. En
The immovable property is transferred from a mortgagor to the mortgagee in mortgage form to secure the En
loan. The mortgagor has to pay the principal amount with interest to release immovable property from the
mortgagee.
The possession of the property is transferred from one person to another at a fixed price. In this scenario, the 1. Br
3. Co
Gift refers to transfer or property from one person to another without any consideration. In this, the donor
transfers the rights on the property to the donee who accepts it.
The right to re-entry cannot breach a condition that is subsequently not transferred to anyone except the
owner.
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The interest of the property that has restricted enjoyment cannot get transferred to anyone except the
owner.
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The transfer of property Act’s Section 54 of the Act provides the duties of the seller in case of transfer of Se
property; the duties are as follows:
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To disclose any material defect to the buyer that is present in the property.
To provide to the buyer on his request the title documents that are related to the property.
To execute a proper conveyance of the property, when buyer tenders it to him for execution at an How
1. Br
appropriate time and place, on payment or tender of the amount due in respect of the price.
2. Pr
To take care of the property and its documents even if it gets sold and takes property care as an ordinary
3. Co
prudence man.
To pay all the balances and public charges that get accrued till the date of sale.
To disclose any fact about the property that the buyer is aware of and the seller is unknown to that fact,
which may increase the amount of the property in the future.
To bear any loss that has accrued on the property, which the seller does not cause.
MORTGAGE
The mortgage is the term that gets derived from the word’ ‘Hypotheca’ from Roman Law. The concept of a
mortgage is very clear and simple. When any property is given as a security for any loan, the property is said
to get mortgaged. And, if the person is unable to repay the loan amount, the creditor has the right to sell the
mortgaged property and recover the loan amount.
The concept of a mortgage is not new, and neither is it just a subject that first got discussed in the Transfer of
Property Act, 1882. The concept also gets recognised under Hindu and Muslim Laws. The property is
pledged to the creditor; the debtor is barred from the possession until the repayment is made. And the
creditor took the profits instead of interest.
Chapter IV of the Transfer of Property Act, 1882 deals with the concept of a mortgage.
Section 58 of the Transfer of Property Act defines the term Mortgage as the transfer of an interest in
immovable property to secure the payment of money advanced, an existing or future debt or the
performance of an engagement that may give rise to a pecuniary liability.
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Parties to the mortgage are Mortgagor and Mortgagee, where a mortgagor is a person who transfers the
interest in immovable property, and the person to whom such interest gets transferred is the mortgagee.
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Mortgage Money is the principal money and the interest of which payment gets secured for the time being.
And the instrument from which such transfer gets effected is the mortgage deed. Com
KINDS OF MORTGAGE
Section 58 of the Transfer of Property Act provides for six kinds of mortgage; they are as follows:
How
1. Br
Simple Mortgage
2. Pr
The simple mortgage gets defined under Section 58(b) of the Transfer of Property Act,1882. The mortgagor 3. Co
does not transfer immovable property to the mortgagee but agrees to repay the amount. And the mortgagee
agrees with the condition that in a failure case to pay the amount, he has all the right to sell the property.
And use the proceeds of the sale as a transaction for loan repayment.
Conditional Mortgage
Section 58(c) of the Transfer of Property Act defines Conditional Mortgage. In this case, three conditions get
placed on the mortgagor, and the mortgagee has the right to sell the property in the following conditions:
As soon as the mortgagor makes the payment, the sale becomes void.
On payment by the mortgagor, the property gets transferred, and such a transaction is called a mortgage
by conditional sale.
Usufructuary Mortgage
Section 58(d) of the transfer of property act defines a usufructuary mortgage. Under this mortgage, the
mortgagor delivers the possession of the property to the mortgagee and authorises the mortgagee to retain
the property until the mortgagor makes payment. And also authorise him to receive the rent or profit arising
out of the property and consider it a payment of interest.
English Mortgage
Section 58(e) defines an English mortgage as the absolute transfer of the property to the mortgagee by the
mortgagor. It specifies the date on which the repayment of the amount with interest would be made. Upon
such repayment, the property should be re-transferred to the mortgagee.
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Section 58(f) of the transfer of property act defines the Deposit of title deed. Like a mortgage where a person
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living in Calcutta, Madras, Bombay or any other state as specified by the State Government, delivers to the
creditor or his agent the title documents of the immovable property to create security and then such Com
transaction is called Deposits of title-deed.
En
Anomalous Mortgage
Section 58(f) defines an Anomalous Mortgage as a mortgage other than the mortgages mentioned above. Se
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RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE
MORTGAGOR
RIGHTS OF MORTGAGOR
How
Right of redemption (Section 60) 1. Br
3. Co
Right to inspect and production of documents (Section 60B)
LIABILITIES OF MORTGAGOR
MORTGAGEE
RIGHTS OF MORTGAGEE
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LIABILITIES OF MORTGAGEE
CONCLUSION
How
Property law gets considered as one of the essential concepts of the legal system of any country, and every
1. Br
other person living in a country has some relation with the property. For the safety and security of the
property of citizens, a country must have a rigid property law. 2. Pr
3. Co
The Transfer of Property Act got introduced to create a comprehensive act that provides information about
the transfer in a very simple language and has gone under various amendments due to uncertainties present
in the original draft. Under the act, the property is transferable under several conditions that must be
satisfied. Every kind of transfer has different conditions that must be satisfied. For transfer of property, it
mustn’t fall under Section 6 of the Act that provides for the conditions in which the property cannot get
transferred.
The mortgage concept is considered one of the essential parts of the Transfer of Property Act, 1882, as it
helps secure the debtor and the creditor.
Any immovable property can get transferred under the Transfer of Property Act.
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What is an Instrument?
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How
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