A live person can transfer property to one or more other living persons, or to himself, or to himself and one or more other living persons, in the present or in the future, and to transfer property is to undertake such an act.
The Transfer of Property Act’s purpose is to establish and alter the law governing property transfers made by parties rather than through operation of law. Because a Transfer of Property is a contract, it must meet all of the required conditions to be considered valid.
The following are the eight key elements of property transfer:
A) The transfer must be made between two or more living individuals (Section.5) – Inter vivos transfer is required. As a result, a transfer to a person who does not exist at the time of the transfer is impossible. A living person includes a corporation, an association, or a group of individuals, whether or not they are incorporated.
B) The property must be able to be transferred (Section. 6) – Property of any kind may be transferred, with the exception of those listed in S.6(a) to (I), which cannot be transferred. As a result, the properties stated in Section.6 clauses (a) to (I) cannot be transferred. These are property transfer limits, and any transfer that violates any of the clauses in Section 6(a) to (I) is null and void.
C) The Transfer must not be –
1) incompatible with the nature of the interest affected by Section.6 (h) or
2) for an unlawful object and consideration under Section 23 of the Indian Contract Act of 1872, which states that a consideration or object is prohibited if –
a) It is against the law, or
b) It is of such a kind that it subverts any legal provision, or
c) is deceptive, or
d) it causes or implies injury to another’s person or property
e) The court considers it immoral or against public policy.
3) To someone who is legally ineligible to be a transferee. A judge, a legal practitioner, or an Office linked with the Court of Justice are prohibited from purchasing in an actionable claim under Section 136 of the Transfer of Property Act. This prohibition only applies to claims that are actionable. It is not applicable to any other type of real estate.
D) Persons competent to transfer (Section.7) – Every person who is competent to contract and entitle to transferable property, or who is authorised to dispose of Transferable property not his own, is competent to transfer such property in whole or in part, unconditionally or conditionally, in the circumstances to the extent and in the manner allowed and prescribed by any law in force. Section 7 of the Transfer of Property Act of 1882 specifies who is qualified to transfer property, and if he or she is not eligible or competent, the transfer will be invalid.
As a result, whether he is the owner of the property or has legal permission to transfer it, a person who is competent to the person can legitimately transfer the property. Personal authority, authority granted by an agency, authority granted by law, or authority granted by the court. In the case of Raja Balwant Singh v. Rao Maharaj Singh 1920, it was held that a transfer of property by a minor is void.) and should be of sound mind at the time of the transfer. He should also not be disqualified to transfer the property under any law to which he is subject. The privy council held in Sadiq Ali Khan v. Jai Kishore 1928 that a deed executed by a minor was null and void. The law of estoppel cannot be applied to a minor, and while a minor is not competent to transfer, a transfer to a minor is legitimate.
Who has the authority to transfer?
1) Competent to contract – The stipulated provisions of the competency must be met in order to transfer the property, according to Section 11 of the Indian Contract Act. There is no provision in any statute regarding competency in the case of the transferee. However, he must be alive at the time of the transfer, and prior interest must be created if the transfer is made to an unborn person, according to Section 13 of the Act.
2) Sound Mind- A person is of sound mind for the purpose of making a contract if he is capable of understanding it and making a logical judgement about its effect on his interests, according to section 12 of the Indian Contract Act. A contract made by someone who is mentally ill is void.
3) Unqualified individual – Contracting with a bankrupt and hostile enemy is prohibited. A transfer of property by a de facto Guardian of minors is void, and section 11 of the Hindu Minority and Guardianship Act, 1956 will apply.
4) The transferor must be the owner of the transferable property or have the authority to dispose of it – A person who is the only owner of a property and it is free of encumbrances is able to transfer it. A property owner may authorise his power of attorney holder to transfer the property on his behalf and for him.
E) The transfer must be made in the manner specified in section 9 of the Act-
A Transfer of Property may be accomplished without writing in every circumstance when a writing is not specifically required by law, according to Section 9 of Transfer of Property.
In the case of the following instruments, writing is required –
1) the selling of immovable property worth a hundred rupees or more (S.54),
2) year-to-year leases of immovable property for a term longer than one year or reserving a yearly rent (Section 107)
3) a basic mortgage, regardless of the amount secured (Section 59 ),
4) All other mortgages with a security value of Rs100 or more (section 59)
5) Collaboration ( section 108)
6) Transfer of real estate (section 123)
7) Actionable claim transfer (section 130)
F) If, as a result of a transfer, an interest in an unborn person is created – see section 13 –
a) Only a small amount of interest should be generated in favour of live people;
b) An unborn child must be born before the Limited Interest Period ends.
c) When the unborn person reaches the age of majority, he will be given absolute interest.
G) The Transfer must not be in violation of the perpetuity rule (section 14) – The exchange must be in opposition to the law against perpetuity, according to Section 14 of the Transfer of Property Act of 1882. Perpetuity means endlessness, eternal time, eternity, or infinity in its literal sense. It alludes to the creation of a passion for the here and now that will generate effects after a very lengthy period of time. No property transfer or work to create an interest can take place after the death of at least one person living at the time of the transfer and the minority of some individual who should be present at the end of that period and to whom the interest created will have a place if he reaches the age of majority. This rule ensures that property vesting in a transferee does not exceed a certain threshold.
H) Transfer with conditions – If a transfer is conditional, it must not be illegal, impractical, immoral, or incompatible with government policies.
Cases That Apply-
1) Sadiq Ali Khan vs. Jai Kishore in the year 1928.
A deed executed by a minor was declared null by the Privy Council. The principle of estoppel does not apply to minors. Although a minor lacks the ability to transfer, a transfer to a minor is legitimate.
2)Amina Bibi vs. Saiyid Yousuf, All 449, 1922.
A lunatic’s contract, as well as any transfer of his property, is void under section 11 of the Indian Contract Act.
3)K Kamama Vs. Appana– According to Section 11 of the Hindu Minority and Guardianship Act, 1956, a defacto guardian is only a manager who cannot dispose of the property of a child. The court ruled that a defacto guardian’s sale of a minor’s property was invalid.
REFERENCES
1.) https://www.srdlawnotes.com/2016/03/definition-of-of-property-and.html?m=1
2.) https://blog.ipleaders.in/necessities-transfer-transfer-property-act-1882/
3.) https://www.magicbricks.com/blog/transfer-of-property-act-1882/125264.html#Who_is_Eligible_to_Transfer_Property
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