The Indian Transfer of Property Act, 1882, is a law that oversees the transfer of property in India. The Act was originally enacted during British rule and since then it remains a fundamental legal framework for overseeing the transfer of immovable property throughout India. The Act classifies different types of transfer of property, including but not limited to sale, mortgage, lease, and gift, and outlines the rights and responsibilities of the parties, and also protects the interests of all parties involved in property transactions.

Transfer of Property Act in India

A conversion of something from one person to another is called a transfer. Anything that is owned by an individual or group of individuals, whether it be a real or virtual entity, is considered property. A property can be passed from one person to another by means of a transfer of rights, interests, ownership, or possession, provided that one or more of the requirements are met. The transfer of any sort of immovable property between persons, businesses, or organizations is covered by this statute. On the other hand, this statute does not apply to possessions that are inherited or disposed of by a will. This act primarily sets the path for property transfer from one owner to another in India.

Historical Background of the Transfer of Property Act

The Transfer of Property Act, 1882 is an age-old legislation that runs parallel to the succession laws and is perceived as an extension of the Law of Contract. Hindus and Muslims in India were subject to their own regulations regarding property transfers prior to the British era, although British colonists actively participated in the Indian legal system. In contrast to English law, they first established informal courts devoid of clear and specific legislation. The High Court therefore recommended establishing legislation pertaining to property transfers. The First Commission was created by Queen Elizabeth II at the time to address the problems. The commission created a draught document and presented it to the legislative council in 1877 after sending some revisions to India. After going to the selection committee, it was turned down because of backlash from the general population. The Second Law Commission modified the bill, incorporating several provisions from English real estate law, specifically The Law of Conveyancing and Property Act, 1881. This time, the law was crafted such that Indian judges who were not professionals could easily understand it and satisfy the needs of the Indian population.

Key features of Transfer of Property act

  • The Indian Contract Act of 1872 was recognized as a complete regulation, and as such, the Transfer of Property Act of 1882 was an expansion of it. The English transfer of property laws, which were implemented in response to the nation’s socioeconomic circumstances, is not a replica of the transfer of property laws in India. The act cannot be considered as totally exhaustive because it only covers the transfer of immovable property from the act of parties.
  • 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 the State and the Center to pass laws related to the transfer of property.
  • The act is governed by Several principles like Justice, Equity and Good Conscience. All residents of its jurisdiction are subject to the Transfer of Property Act and not according to individual personal laws.
  • It draws attention to the inter-vivos parallel provisions that relate to testamentary and intestate succession laws now in place. The property’s special laws pertaining to the general laws take precedence over the act.

Relevance of Different Sections in the Transfer of Property Act

Section 52

According to Section 52 of the Act, the Lis Pendens theory applies to all lawsuits and actions when a right to immovable property is clearly and directly in dispute. It means that no new interest regarding the disputed property may be created while the suit or proceeding is pending, and that no party may transfer the property or otherwise deal with it in a way that would affect the rights of any other party under any decree or order that may be made therein, unless the court authorizes it and sets any conditions that may be imposed.

Section 53 (a)

Section 53A of the Transfer of Property Act of 1882 incorporates the doctrine of part performance. According to this doctrine, if a person makes an agreement with another and lets the other person act in furtherance of the contract, he has created equity that cannot be resisted.

Section 54

“Sale” under this section is defined as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The transfer involves two parties, the transferor or seller and the transferee or purchaser. A contract for sale is also defined under this Section.

How is Gift Treated under the Transfer of property Act?

A gift is typically defined as an ownership transfer (in the form of property) that is carried out voluntarily by the giver without any payment or other incentive. The parties may be two live individuals, the transfer may occur only after the transferor’s death, and the property may be either moveable or immovable. The gift may be declared legally void or revoked if its fundamental components are not carried out as intended. Since the gift is a transfer of ownership rights, it must be in the transferer’s possession, ownership, and existence at the moment of the transfer. Although the transferee might be anyone, the transferor needs to be competent to make such a transfer. The acceptance of the gift must be confirmed on behalf of the transferee by a competent individual if the transferee is incapable of entering into contracts. Future property gifts are void. Rejecting burdensome gifts or only partially accepting lucrative ones is also invalid.

How is a mortgage treated under the Transfer of property Act?

The transfer of an interest in immovable property with the intention of guaranteeing the repayment of advances, current or future debts, or the fulfillment of an engagement that could result in financial obligations is known as a mortgage. The person who transfers interest in any immovable property is called the mortgagor. The person to whom it is transferred is called the mortgagee. It assists in protecting the mortgagor’s obligation and enables the property to be redeemed as soon as the mortgagor repays the mortgagee for the amount owed.

How is the sale Treated under the Transfer of Property Act?

Sale under TPA is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Essentials of a valid sale –

  1. There must be a transfer of ownership
  2. There must be a monetary value associated with the transfer.
  3. The buyer must be a person competent to the transferee.
  4. The seller must be a person competent to transfer. The seller should be either the owner of the property or should have the authority to dispose of it.
  5. The subject matter must be a transferable immovable property which can be tangible or intangible.

Conclusion

It is now obvious that the concept of property transfer has multiple dimensions. Due to their respective legal responsibilities and rights under the Transfer of Property Act of 1882, the parties making the transfer and the one receiving the property are considered parties to the transaction.

FAQ’S

1. What can be transferred under the Transfer of Property Act?

Under this act, an immovable property can be transferred.

2. How is the sale of immovable property different from the gift of immovable property?

The sale of immovable property is a transfer of ownership for a price paid or promised, or partly paid and partly promised while the gift of immovable property is a transfer of ownership without any consideration, but with the consent of the donor and the acceptance of the donee.

3. Does Section 54 of the Transfer of Property Act, 1886 apply to the whole of India?

No, Section 54 of the Transfer of Property Act, 1886, which deals with the sale of immovable property, does not apply to the whole of India. It is not applicable to the transfer of agricultural land, which is governed by the local laws of each state.

4. Do hire-purchase agreements constitute sale?

No, hire-purchase agreements do not constitute sale under the Transfer of Property Act, 1882. A hire-purchase agreement is a contract in which the owner of the goods lets them on hire to another person, who has the option to buy them at the end of the agreed period or earlier, by paying the agreed installments.

5. What are the five types of Transfer of Property under the Act?

The Act contemplates the following kinds of transfers: (1) Sale, (2) Mortgage, (3) Lease (4) Exchange, and (5) Gift.