Article Review: Transfer of Property envisaged under

Section 5 of the Transfer of Property Act, 1882 (M.

Chawlaa, 2023).
Understanding the basics of TOPA and the concept of Property

The relevance of the review lies in its critical analysis of the Transfer of Property Act, 1882,
a foundational piece of legislation in Indian property law. Property transfers are integral to
various legal transactions, ranging from real estate deals to inheritance matters, making a
comprehensive understanding of the Act crucial for legal practitioners, scholars, and
individuals involved in property transactions.

The act delineates legal frameworks for property transfers, often reinforcing existing power
structures and inequalities. The narrative of property ownership, as governed by TOPA,
reflects broader societal norms and power dynamics, influencing who can access and control
property. TOPA can be seen as a form of state intervention in property transactions. While
TOPA provides legal mechanisms for property transfers, it also entails state oversight and
regulation, sometimes leading to unequal power dynamics between transacting parties.
Moreover, TOPA's enforcement mechanisms can be likened to policing, with the state
exerting control over property transactions and intervening in cases of disputes or violations.
TOPA may perpetuate narratives that marginalize certain groups or prioritize the interests of
powerful stakeholders. For example, TOPA's provisions regarding competency to contract
may disadvantage marginalized individuals or communities, limiting their ability to engage in
property transactions on equal footing. The unequal distribution of power between transacting
parties, coupled with legal complexities under TOPA, may create conditions conducive to
coercion or exploitation, particularly among vulnerable individuals or communities.
Similarly, analysing TOPA through a critical lens invites reflection on potential reforms to
address inequalities and injustices within property law. This may involve reconsidering
certain provisions of TOPA, enhancing legal protections for marginalized groups, and
promoting alternative models of property ownership and transfer that prioritize equity and
social justice.

To conduct the review, I relied on primary sources such as the Transfer of Property Act 1
itself, as well as relevant case law cited by Muskaan Chawlaa in her article. Additionally, I

1
Transfer of Property Act, 1882.
drew upon secondary sources such as legal commentaries and academic articles to provide
context and additional insights into the subject matter.

The methodology employed involved a thorough examination of Chawla’s article, identifying

key arguments, legal principles, and case law references. By critically evaluating the author’s
analysis, I aimed to provide a nuanced perspective on the strengths and limitations of her
arguments, thereby contributing to a deeper understanding of the topic.

The review levies several criticisms at Chawla’s analysis, primarily focusing on the need for
further clarification and elaboration on certain points. For instance, while Chawlaa provides
an overview of the Transfer of Property Act and its key provisions, there is scope for a more
detailed discussion of specific legal concepts and their practical implications. Furthermore,
the review highlights the importance of contextualizing legal principles within broader
theoretical frameworks, such as jurisprudence and legal philosophy, to enhance
understanding and facilitate critical engagement with the subject matter.

The significance of these criticisms lies in their potential to enrich scholarly discourse and
stimulate further research and analysis in the field of property law. By identifying areas for
improvement and offering constructive feedback, the review aims to foster intellectual
dialogue and contribute to the advancement of legal scholarship.

Muskaan Chawlaa, in her article “Transfer of Property Envisaged Under Section 5 of the
Transfer of Property Act, 1882,” provides a comprehensive exploration of the legal
framework governing property transfers in India. She begins by delineating the broad scope
of property, emphasizing its value and the rights of ownership it entails. The Transfer of
Property Act, 1882, specifically Section 5, serves as the focal point for her analysis,
elucidating the intricacies of transferring property from one party to another.

Chawlaa meticulously dissects the provisions of the Act, highlighting key elements such as
the eligibility of transferors, the necessity of conveyance, and the limitations on transferable
properties outlined in Section 6. She also delves into the interplay between the Transfer of
Property Act and other legislation, notably the Hindu Succession Act of 1925, underscoring
the legal validity of testamentary transfers within the Hindu legal framework.

Drawing upon legal precedents and case law, Chawlaa scrutinizes the concept of transfer
itself, clarifying that the transferor need not necessarily be the owner of the property in
question. She emphasizes the distinction between the transfer of property interests and the
transfer of property itself, elucidating how various forms of conveyance operate within the
legal framework.

Furthermore, Chawlaa elucidates the conditions for a valid property transfer, stressing the
importance of competence and contractual capacity on the part of the transferor. She
navigates through the intricacies of oral and written transfers, delineating when each form is
deemed necessary under the Act.

The article concludes with a nuanced examination of immovable property, distinguishing

between movable and immovable assets based on their inherent characteristics and potential
for alteration. Chawlaa emphasizes the temporal dimension of property transfers, elucidating
how transfers can occur immediately or at a future date as stipulated in the sale deed.

In summary, Muskaan Chawla’s article offers a rigorous analysis of property transfers under
the Transfer of Property Act, 1882, weaving together statutory provisions, case law, and legal
principles to provide a comprehensive understanding of the subject matter. Her meticulous
attention to detail and clarity of exposition makes this article a valuable resource for legal
practitioners and scholars alike.

Essentially, the article by Muskaan Chawlaa delves into the nuances of property transfers as
governed by Section 5 of the Transfer of Property Act, 1882, within the context of Indian
law. Chawlaa elucidates the legal framework surrounding property transfers, emphasizing
key provisions such as eligibility criteria for transferors, the necessity of conveyance, and the
limitations on transferable properties.

Furthermore, she explores the interplay between the Transfer of Property Act and other
relevant legislation, notably the Hindu Succession Act of 1925, shedding light on the legal
validity of testamentary transfers within the Hindu legal framework.

Drawing upon statutory provisions and case law precedents, Chawlaa clarifies the concept of
transfer and its various forms, highlighting distinctions between the transfer of property
interests and the transfer of property itself.

The article also addresses conditions for valid property transfers, including the competency of
transferors and the requirement for contractual capacity. Additionally, it delves into the
nuances of oral and written transfers, delineating circumstances necessitating each form
under TOPA.
One of the notable strengths of Chawlaa’s paper is its meticulous attention to detail,
particularly in elucidating the nuances of property transfers under Section 5 of the Transfer of
Property Act. Her analysis of case law precedents, such as Shiromanigurudwara Prabhandak
Committee Amritsar v Sri Somnath Dass and Lionel Edwards Limited v State of West Bengal,
enriches the discussion and enhances the reader’s understanding of the subject matter.
Furthermore, Chawlaa’s exploration of the principles underlying property transfers, such as
the maxim ‘Alienation Rei Prefertur Juri Accrescendi’, adds depth to the analysis and
underscores the complexities inherent in property law.

However, despite these strengths, Chawlaa’s paper exhibits certain deficiencies that warrant
attention. Firstly, the paper’s organization and structure could be improved to enhance clarity
and coherence. The abrupt introduction of key concepts and the lack of a cohesive
argumentative framework detract from the overall readability and impact of the paper.
Additionally, while Chawlaa provides a thorough analysis of property transfers under the
Transfer of Property Act, the paper could benefit from a more robust engagement with
comparative property law. By exploring alternative legal frameworks and examining their
implications for property regulation, Chawlaa could enrich the analysis and offer valuable
insights into potential areas for reform or harmonization with other laws.

In conclusion, Muskaan Chawlaa’s paper on the transfer of property under Section 5 of the
Transfer of Property Act, 1882, offers a commendable exploration of the legal principles
governing property transfers in India. While the paper exhibits strengths in its meticulous
analysis of statutory provisions and case law precedents, it also demonstrates areas for
improvement, particularly in its organization and engagement with comparative property law.
By addressing these deficiencies and furthering the discussion on property regulation,
Chawlaa’s paper has the potential to make a significant scholarly contribution to the field.