The Transfer of Property Act is a general law related to the transfer of property. Generally deals only with real estate.
Objectives
The basic objective of this law is to formulate rules, regulations and procedures for the transfer of property. Scheme of law A transfer can take effect in 2 different ways 1. Transfer by law of the contracting parties.
- Transfer by operation of law. Immovable Property This Act does not define the term immovable property, but section 3 of this Act provides for certain exclusions as follows
“Real property does not include standing timber, growing crops and grass”
Since the term immovable property is not exhaustively defined in this Act, it can be interpreted using other laws as follows: According to the General Act of 1897, immovable property means and includes 1. Land 2. Benefits arising from land
Advertisement User Menu Articles of the Companies Act Important Provisions of the Transfer of Property Act 1882 CA. Ankit Vijaywargiya| Law of commercial companies – articles| Download PDF November 21, 2020 51,291 views 2 comments The Transfer of Property Act is a general law related to the transfer of property. Generally deals only with real estate. Objectives of Advertising The basic objective of this Act is to formulate rules, regulations and procedures for the transfer of property. Scheme of law A transfer can take effect in 2 different ways 1. Transfer by law of the contracting parties. Advertisements 2. Transfer by law. Immovable Property This Act does not define the term immovable property, but section 3 of this Act provides for certain exceptions as follows. It can be interpreted with the help of other laws as follows:- Under the General Clause Act 1897 immovable property means and includes 1. Land 2. Benefits arising from the advertisement of land Things attached or permanently attached to anything attached to the land . Anything tied to the ground means 1. Things rooted in the ground. 2. Embedded in the ground. Attached to what is so inserted. Examples of immovable property 1. Right to collect rent of immovable property. 2. Right of way.
- Interest of the mortgagee. 4. The right to collect lacquer from trees. 5. Right of fishing. The term “real property” does not include the following items. 1. The right of worship
- Government bills. 3. 4. Right to refund of alimony. 5. 6. Decree on arrears of rent. 7. Machinery not permanently connected to earth.
(a) Definition-
Movable property – not defined under the Transfer of Property Act. • Under the General Clauses Act, 1897, movable property means property of every kind except immovable property. According to Section 2, Paragraph 9 of the Registration Act, it includes property of all kinds, with the exception of immovable property, but including standing timber, cultivated crops and grass.
Example of movable property- Machinery fixed on the land temporarily; Intellectual property law; Standing wood and growing grass; The right to recover alimony; honorarium; Copyright
Immovable property – not defined under the Transfer of Property Act. Standing wood, growing crops and grass are not immovable property according to § 3.
Standing wood is a tree suitable for building or repairing houses. This is an exception to the general rule that a growing tree is real property.
Cultivation of Crops: Includes all types of vegetables that do not exist apart from their production, such as pan leaf, sugarcane, etc.
Grass: Grass is movable property, but if it is proper to cut the grass, it is an interest in the land and therefore constitutes real property.
According to Section 3(25) of the General Provisions Act 1897, immovable property includes land, benefits derived from land and things attached to the land or permanently attached to anything attached to the land.
The Indian Registration Act expressly includes in immovable property benefits arising from land, heredity, rights of way, lights, ferries and fisheries.
Example of immovable property – Chattel embedded in the ground; Relief.; Right of way; The right to use immovable property on the basis of a lease; Right of fishing; The right to collect real estate rent; Mortgagee’s interest
(b) Motion
Movable property can be easily transported from one place to another without changing its shape, capacity, quantity or quality.
Property cannot be easily transported from one place to another. They will lose their original shape, capacity, quantity or quality during transport
© Transfer
Movable Property – Mere delivery with intent to transfer the movable property completes the transfer.
Real estate – mere delivery is not sufficient for a valid transfer. The property must be registered in the name of the transferee
(d) Registration
Movable Property – Registration is optional under the Indian Registration Act, 1908.
Property – Compulsory registration under the Indian Registration Act, 1908 provided its value exceeds Rs.100.
What is transfer or Essentials of a valid transfer?
According to the Transfer of Property Act, transfer of property means when a living person transfers property at present or in the future to one or more persons or to himself and one or more other persons, and transfer of property is the performance of such an act. [section -5]
The legal rules for a valid transfer are:
Transfer must be between two or more living persons [Section 5]
A living person includes a company or association or body of individuals, whether incorporated or not. Legal person was defined in the case of Shiromanigurudwara Prabhandak Committee, Amritsar v. Sri Somnath Dass. In this case, the court stated that a legal entity can be a natural person, firm, corporation, association, company, with the exception of a partnership firm. Any individual who can sue or be sued under the Act would satisfy this requirement.
The transfer must be inter vivos. Therefore, there cannot be a transfer to a person who did not exist at the time of the transfer.
A transfer can be made by a person to himself, such as when a person puts property into a trust and becomes the entire trustee himself.
The transfer must be via means of transport.
Transportation can be present or future. However, transfer can only occur if a new title is created. So there should have been nothing with the transferee before the title
Own property must be transferred
The transfer of property may occur with immediate effect or at a future date; however, the property must exist on the date of the transfer. Future property cannot be transferred. The expression “presently or hereafter” is governed by the word “transfers” and not by the word “property”, e.g. A transfers his property for life to B and then to C. A transfer in favor of B is present (although he only receives a life interest), but the transfer in favor of C is a future transfer.
The property must be transferable. [part 6]
Person empowered to transfer [Section 7] Any person who is competent to contract (competence defined in Section 11 of the Contracts Act) and has ownership can transfer property [Krishna Kurhai Versus Grindlays bank]. A minor can be a transferee, but a minor is not eligible to be a transferor. In other words, the transferee need not be a competent person as the transferor. The transferee can be a minor, a mentally ill person or a child in the mother’s womb. According to § 6 letter h) paragraph 3, however, this person must not be a legally disqualified acquirer. For example, under Section 136 of TOPA, judges, lawyers and court-connected officials are excluded from purchasing claims:
The consideration and object of the transfer must be lawful [no contract of transfer is illegal under Section 23 of the Contract Act].
The transfer must take place in a manner established by law. [part 9]
[Types of transfer-sale, mortgage, lease, exchange, gift]
Transfer formalities:
Section 54
Movable property – orally (by handing over possession) / in writing (by signing an agreement)
Immovable property – tangible value Rs.100. or above (Registration Mandatory)/ worth less than Rs.100. (Registration is optional)
Conclusion
The Transfer of Property Act [TPA] or TOPA came into force in 1882. Prior to that, the transfer of immovable property was governed by the principles of English law and equity. The preamble of the law sets out the objectives of the legislation. The scope of this law is limited. It applies only to a transfer by act of the parties, not by operation of law. This law also deals with the transfer of property inter vivos, i.e. transfer between living persons. It covers the transfer of both movable and immovable property, but much of the legislation applies only to transfers of immovable property. The law is not exhaustive
Reference
: https://taxguru.in/corporate-law/important-provisions-transfer-property-act-1882.html
https://www.legalserviceindia.com/legal/article-2117-transfer-of-property-act-topa-tpa-.html
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