THE TRANSFER OF PROPERTY ACT LLB NOTES PREPARED IN QUESTIONS- ANSWERS FORMAT

 

Q. What is transfer? Or Essentials of  a valid transfer?

Meaning of transfer (Whether movable or immovable) - Section 5

According to the Transfer of Property Act,                                                                                        transfer of property means when a living person conveys the property, in present or in future, to one or more persons, or himself and one or more other persons and to transfer property is to perform such act.[section -5]  

Legal rules for a valid transfer are- 

  • Transfer must be between two or more living persons [section 5]

Living person” includes a company or association or body of individuals whether incorporated or not. A juristic person was defined in the case Shiromanigurudwara Prabhandak committee, Amritsar v. Sri Somnath Dass. In this case, the court said that a juristic person can be an individual, firm, corporate company, association, society, not including partnership firm. Any individual who can sue or be sued under law would satisfy this requirement.

The transfer must be inter vivos. Therefore there cannot be a transfer to a person not in existence at the time of transfer. 

A transfer can be made by a person to himself, as for instance when a person vests property in trust and himself becomes the whole trustee.

  • The transfer must be through a conveyance.

Conveyance can be present or future. However conveyance can take place only if there is a creation of a new title. Therefore, there should have been nothing with the transferee before the title

  • Property itself must be transferred

The transfer of property may be made to take place with immediate effect or to take place on a future date; however the property must be in existence at the date of transfer. There can be no transfer of future property. The expression ‘in present or in future’ governs the word ‘conveys’ and not the word ‘property’, e.g., A transfers his property to B for life and then to C. The transfer in favour of B is present (although he gets only life interest) but the transfer in favour of C is future transfer.

·         Property must be transferable. [section 6] Every kind of property can be transferred. But following properties cannot be transferred:

·         Chance of an heir apparent.

  • Transfer of easement. 
  •  Restricted interest.
  •  Right to future maintenance. 
  •  Right to sue.
  •  Transfer of public office, salary and pension

 

  • Person competent to transfer [Section 7] Every person, competent to contract (competency defined in section 11 of Contract Act) and having ownership can transfer property [Krishna Kurhai Versus Grindlays bank]. A minor can be a transferee but a minor is not competent to be a transferor . In other words, transferee need not be a competent person like transferor. A transferee may be a minor, insane or child in mother’s womb. However, under Section 6(h)(3) the person must not be a legally disqualified transferee. For example under Section 136 of TOPA judges, legal practitioners and officers connected to the court are disqualified from purchasing actionable claims

• Consideration and object of transfer must be lawful.[no contract of transfer unlawful as per section 23 of the contract Act]

 • Transfer must take place as per method prescribed under the Act.[section 9] 

  [Types of transfer-sale, mortgage, lease, exchange, gift]

Formalities for transfer – 

Section 54

 • Movable property- Orally (by delivery of possession) / Writing (by executing agreement) 

• Immovable property-  Tangible of Value of 100 Rs. or above (Registration mandatory)/ of Value of less than 100 Rs. (Registration optional)  

Intangible -Registration compulsory

 

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