PROPERTY ACT

 

THE TRANSFER OF PROPERTY ACT, 1882

Introduction

  • This document allows one to decode the BARE ACTS for better understanding.

Disclaimer

  • This document is for educational purposes only and not for any other purpose except for understanding of the BARE ACTS.
  • Names and examples used are for educational purposes only.
  • There may be spelling mistakes and proofreading has not been done.
  • This document is an extension of rough notes taken in class.
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            Acknowledgments

            • Respective BARE ACTS were used as references in preparing this document.
            • Thanks to the professor for sharing knowledge and references used in this document.



            THE TRANSFER OF PROPERTY ACT, 1882

            TPA 3. Interpretation-clause.—In this Act, unless there is something repugnant in the subject or context,—

            “immoveable property” does not include standing timber, growing crops or grass; 

            “instrument”, means a non-testamentary instrument;

            E.g testamentary means- how property is divided 


            “attested”, 

            in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesseseach of whom has seen” the executant sign or affix his mark to the instrument, 

            E.g Minimum 2 witness and they must see the person/ executant  signing the document. 

            or has seen some other person sign the instrument in the presence and by the direction of the executant, or 


            has received from the executant a personal acknowledgement of his signature or mark, 


            E.g received a personal acknowledgement from the executant- received a call from the executant that “i have transferred the whole property to my daughter.”


            or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;

            E.g it is not necessary that both the witnesses need not be present at same time. 

            “attached to the earth” means—

            (a) rooted in the earth, as in the case of trees and shrubs;

            (b) imbedded in the earth, as in the case of walls or buildings; or

            (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;



            CHAPTER II1

            OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

            (A) Transfer of property, whether moveable or immoveable

            TPA 5. “Transfer of property” defined.—

            In the following sections “transfer of property” means an act by .which “a living person conveys property, in present or in future,” to one or more other living persons, or to himself, 2[or it himself] and one or more other living persons; and “to transfer property” is to perform such act.


            E.g Transfer of property - must happen between Living persons only.


            In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.


            TPA 6. What may be transferred.—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:

            E.g below points - where these properties cannot be transferred 

            (a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

            E.g when you have got a 50L loan, now you promise that when the uncle is dead, the property will become mine and then will transfer this property. This is not Valid. 

            (b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.


            E.g have given a property to the person and condition that you must  open a school. But the person opened a coffee shop. Now there is a breach of condition.


            condition subsequent - after the property is transferred and what are the conditions laid after the transfer is called condition subsequent. 


            TPA 7. Persons competent to transfer.—

            Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.


            TPA 9. Oral transfer.—A transfer of property may be made without writing in every case in which a writing is not expressly required by law.

            E.g when I'm giving my mobile to a friend, the law is not asking to register.


            CHAPTER III

            OF SALES OF IMMOVABLE PROPERTY

            TPA 54. “Sale” defined.—”Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

            Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

            E.g tangible means- which can be touched

            In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.


            Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.


            Contract for sale.—A contract for the sale of immovable property is a contract that a sale of such property shall “take place on terms settled between the parties.”


            It does not, of itself, create any interest in or charge on such property.


            E.g  Sale contract - does not create any interest to create any power until money or possession is transferred

            TPA 55. Rights and liabilities of buyer and seller.—

            (1) The seller is bound—

            (a) to disclose to the buyer any material defect in the property 3[or in the seller‟s title title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;



            CHAPTER VII

            OF GIFTS

            TPA 122. “Gift” defined.—

            “Gift” is the transfer of certain existing moveable or immoveable 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.


            Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving,


            If the donee dies before acceptance, the gift is void.


            E.g son of the Donee - accepting on behalf means - the person must be alive during the acceptance of Gift. 

            TPA 123. Transfer how effected.—

            For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.


            For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.


            TPA 124. Gift of existing and future property.—A gift comprising both existing and future property is void as to the latter.

            E.g void as the latter - means  any future property mentioned is void. 


            TPA 125. Gift to several, of whom one does not accept.—

            A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.

            E.g when a gift is given to 4 people and one does not accept it. - only the person who has been rejected  will become VOID. 

            TPA 126. When gift may be suspended or revoked.—

            The donor and done may agree that on the happening of any specified event which does not depend on the will of the donor a it shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere well of the donor is void wholly or in part, as the case may be.


            E.g which does not depend on the will of the donor :- donor must not have the control of the condition to happen
            E.g the manager gave a house as a gift with a condition.  If you lose the job in 3 months you will revoke the gift. Now the donor has complete control on revocation.  This revocation condition is VOID, but the gift is valid. 

            A gift also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.


            Save as aforesaid, a gift cannot be revoked.

            Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

            E.g once the Gift is given, cannot be taken back 



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            8 OCT  

            TPA 127. Onerous gifts.—

            Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the done can take nothing by the gift unless he accepts it fully.


            E. g A single transfer will be made- with several items in the gifts. Now either you can accept everything. When you refuse any one item. THe gift will become VOID. 

            Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the done is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.


            E.g when there are separate transfers, made many times. Now the Donee can accept any one or all and can reject any one of his like. 

            Onerous gift to disqualified person.— “A donee not competent to contract” and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.


            TPA 6. What may be transferred.—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force:

            E.g anything can be transferred and the 10 things mentioned cannot be transferred as gifts.


            (a) “The chance of an heir-apparent” succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

            E.g here when my sister dies, I will get the property. THen i will give the land to you and get the money for it now. - this is invalid

            (b) “A mere right of re-entry” for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.


            condition subsequent- after getting the property these conditions must be met. 


            E.g if you make default on the rent for two months, then the right to reenter is given to Owner of the land alone. 
            E.g so the owner cannot ask someone to continue the lease from the defaulted two months rent. 

            (c) An easement cannot be transferred apart from the dominant heritage.


            E.g easement right :- there are 2 farmland owners. 
            When A grows crops, the B keeps the land vacant so that A can use this place to store cut crops & other activities.  
            The Same B grows the crop the same A will keep the LAnd vacant.
            This is called easement right. 
            Now a Third party approaches A, when he is growing crops and asks the A can he also use the Vacant Land. A allows you to use it. THis is Void because A is transferring the easement right, which is not allowed. 

            When the Property is sold, automatically the easement rights are sold with it .

            E.g Easement right - while reaching the farmland which is surrounded by other farm lands. To reach my land, I have to cross these lands. The others cannot stop me from crossing their lands to reach my land. This is called easement right. 

            (d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

             E.g when you have given your building to lease for a BAR, now the BAR owner gives special right to get access to BAR 24/7 but the regulation is to open the BAR till 11PM. When the building is sold, this special right cannot be transferred when sold. 

            (dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.


            (e) A mere right to sue  cannot be transferred.

            E.g when A gets money from B, then only B can sue the A. THis cannot be transferred 

            (f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.

            E.g When the Judge is returning, he wants to transfer the JOB to his Son. this not acceptable and VOID

            (g) Stipends allowed to military, 6[naval], 7[air-force] and civil pensioners of 8[the Government] Government] and political pensions cannot be transferred.


            E.g MLA / MP will get pensions after 5 years. Now I got selected for a second term. There will be 2 pensions for life time. 

            (h) No transfer can be made

            (1) in so far as it opposed to the nature of the interest affected thereby, or

            E.g condition - you cannot sell this to any BAR & restaurant. Now when you try to sell to BAR, then the nature of interest is affected.

            (2) 9[an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or


            (3) to a person legally disqualified to be transferee.


            (i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, 

            the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a court of Wards, to assign his interest as such tenant, farmer or lessee.

            Legal terms

            Secure debt : When money is lent against any valuable which is kept as security.

            Unsecured debt : when there is no security is provided, can go to court to get the actionable claim

            “actionable claim” 

            means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accuring, conditional or contingent;


            CHAPTER IV

            OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES

            TPA 58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.—

            (a) A mortgage is the

             “transfer of an interest in specific immovable property” for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

            E.g when the House is kept for Mortgages only the transfer of interest is done. There is no sale.

            “The transferor is called a mortgagor”, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being arc called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.


            (b) Simple mortgage.—

            Where, “without delivering possession of the mortgaged property,” the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.


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            10 OCT  

            (c) Mortgage by conditional sale.—

            Where the mortgagor ostensibly sells the mortgaged property—

            on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or


            E.g kept a condition while selling the property  - this sale will become void if not pay the full money by the 21 of the month

            on condition that on such payment being made the sale shall become void, or

            on condition that on such payment being made the buyer shall transfer the property to the seller,

            the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

            1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]


            (d) Usufructuary mortgage.—

            Where the mortgagor delivers possession 2[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property 3[or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest 4[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.


            E.g Gave the possession of the Flat to the Bank and now the rent from the flat will go to the bank. Until the money is paid back to the bank the profit from the possession will go to the Bank

            (e) English mortgage.—

            Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.


            E.g you  will completely sell it and make a condition that i will pay the full money on that particular day, Then they have to re-transfer back the property. 

            (f) Mortgage by deposit of title-deeds.-


            E.g like in the village, deposit the House papers and get money. 

            (g) Anomalous mortgage.—

            A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.]


            E.g Not any of the above provided mortgages - link combination of any two can be called as Anomalous mortgage. 

            CHAPTER V

            OF LEASES OF IMMOVABLE PROPERTY

            TPA 105. Lease defined.—

            A lease of immovable property “is a transfer of a right to enjoy such property”, made for a “certain time”, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.


            Lessor, lessee, premium and rent defined.—The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.


            TPA 10.Condition restraining alienation.—

            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 a lease where the condition is for the benefit of the lessor or those claiming under him: 

            provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.


            E.g when there is absolutely stopping the transferee- to sell the property. This condition means this becomes VOID. 

            E.g Conditions :- you cannot stay in this property, but giving to you as GIFT


            TPA 11. Restriction repugnant to interest created.—

            Where, on a transfer of property, an interest therein is created absolutely in favour 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.

            E.g when the transfer of the property with conditions how you must use these properties- this also becomes Invalid. 

            Where any such direction has been made in respect of one piece of immovable property property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. 


            E.g when there are adjacent properties, when there are conditions laid, when these are not followed the other property will be affected. Then this must be valid. 

            TPA 13. Transfer for benefit of unborn person.—

            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.

            Illustration

            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.

            E.g B is working in the TRUST of “A”. 
            B has to take care of A & wife till their death. 
            Now the eldest son must get married for life then only this property will be transferred to “A’s eldest son”. 
            E.g SEC(5) TP Act, Transfer of property can take place only between two living persons 
            E.g when “A” doesn't have any kids, and they die of old age. Now  “B” can enjoy this till his life, after he is dead. Now the property will go back to the next kin of “A”. 

            TPA 14. Rule against perpetuity.— perpetuity means = forever

            No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.


            E.g you cannot transfer the property for ever - like my son , my grandson, & his son, etc.
            E.g only one person's life interest can be transferred. I.e to your son/daughter 

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            Updated : 2021

            Key word search:

            THE INDIAN PENAL CODE, 1860 [IPC],
            THE CODE OF CRIMINAL PROCEDURE, 1973 [CRPC],
            THE HINDU MARRIAGE ACT, 1955 [HMA],
            THE INDIAN EVIDENCE ACT, 1872 [IEA],
            THE CODE OF CIVIL PROCEDURE, 1908 [CPC],
            THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 [DVA],
            THE TRANSFER OF PROPERTY ACT, 1882 [TPA],
            THE INDIAN EASEMENT ACT, 1882 [IEA],
            THE LIMITATION ACT, 1963 [LIA],

            THE INDIAN PENAL CODE
            THE CODE OF CRIMINAL PROCEDURE
            THE HINDU MARRIAGE ACT
            THE INDIAN EVIDENCE ACT
            THE CODE OF CIVIL PROCEDURE
            THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
            THE TRANSFER OF PROPERTY ACT,
            THE INDIAN EASEMENT ACT
            THE LIMITATION ACT
            #IPC #CRPC #DVA #HMA
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