Legal Guide

Important provisions of the Transfer of Property Act, 1882

by Bhavya Choudhary · 4 min read

transfer of property act 1882

Introduction

A transfer is a change of ownership from one person to another. Any tangible or intangible item that a person or group of people owns is considered to be property. By giving away rights, interests, ownership, or possession, a property can be transferred from one person to another as long as all or some of the requirements are met. The transfer of immovable property is governed by the Transfer of Property Act, 1882. 

The following two methods can be used to transfer property as per the Transfer of Property Act, 1882:

  1. The action of the parties;
  2. By law.

A transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It describes a deed executed by a live person transferring property to one or more other people, himself, or other living people in the present or future. Whether incorporated or not, a business, an association, or a group of people are considered living beings.

Important components of the Transfer of Property Act, 1882

Important components of the Transfer of Property Act, 1882

  1. It must be a transfer between a living or a juristic person in order for there to be a transfer of property.
  2. Conveyance-based transfer: The conveyance of property may take place in the present or in the future. Making sure nothing is transferred before the title is essential.
  3. The Property Must Be Transferable: The following properties, as listed in Section 6 of the Transfer of Property Act, 1882, cannot be transferred:
  • It is prohibited to transfer the potential for an heir apparent to inherit an estate, the potential for a relative to inherit a kinship estate, or any other potential of a similar character.
  • The owner is the only person who has the only right to re-enter due to a later condition being broken.
  • The right to an easement cannot be transferred.
  • The owner’s right to the restricted use of the property cannot be transferred.
  • The right to sue cannot be transferred. 
  • Political pensions, public office, and public officer salaries cannot be transferred.
  • No transfers are permitted for military, naval, or air force pensions, political pensions, or civil pensions.
  • A transfer cannot be done in opposition to a natural interest, and it also cannot be upheld if the transfer’s aim or consideration is illegal.
  • Future maintenance rights cannot be given up.
  • Tenants with an unassignable right to occupancy, farmers of estates with unpaid income, or lessees of estates managed by the court of wards are not permitted to transfer their rights as a tenant, farmer, or lessee, respectively.

Types of transfer under the Transfer of Property Act, 1882

  • Sale of real estate: In return for payment, ownership of the real estate passes from the buyer to the seller. the transfer of physical goods from the vendor to the customer.
  • Mortgage of real estate: Real estate is transferred from the buyer to the seller in the form of a mortgage in which the real estate is mortgaged to serve as collateral for a loan. To free the real estate from the mortgage, the mortgagor must pay off both the principal and interest on the loan.
  • Leases of immovable property: In a lease, possession of the property is transferred from one party to another for a set fee, but ownership is not changed.
  • Exchange: When two parties agree to exchange immovable property, the transaction is referred to as an exchange of property.
  • Gift of immovable property: The Transfer of Property Act, 1882 defines a gift as the violent or unrequited transfer of either moveable or immovable property from one person—the donee—to the donor, which is accepted by and on behalf of the donee.

Salient Features of Transfer of Property Act, 1882 

  • The preamble of the Transfer of Property Act, 1882 states that it is connected to the act of the properties and deals with the transfer of property.
  • The Transfer of Property Act,1882 establishes a unified and precise legal framework for the act of parties transferring moveable property from one live person to another living person.
  • The Indian Contract Act of 1872 was expanded upon by the Transfer of Property Act, 1882, since it was acknowledged as an exhaustive regulation.
  • The transfer of property legislation was created in accordance with the socioeconomic circumstances of the nation and is not a replica of the English transfer of property laws.
  • The Transfer of Property Act, 1882, which regulates the transfer of real estate resulting from a party’s actions, cannot be regarded as completely thorough.
  • The concurrent list, which gives the state legislature and the parliament the authority to adopt legislation pertaining to the issue of transfer of property, is subject to the Transfer of Property Act, 1882.
  • The following five forms of transfers of real estate are covered under the Transfer of Property Act, 1882:
  1. A mortgage; 
  2. a gift; 
  3. a sale;
  4. actionable claim; and 
  5. an agreement to lease.
  • A gift deed registration must be done in order to transfer the property by way of a gift. To get the gift deed registration done, one must take legal consultation. Legal consultation guides the person in the right way.  
  • Unlike personal laws, which vary from person to person, the Transfer of Property Act, 1882 is a law that applies lex-loci to everyone residing in that jurisdiction.
  • The concepts of fairness, equality, and goodwill are among those that guide the Transfer of Property Act, 1882.
  • At first, the state of Bombay, Punjab, and Delhi was exempt from the act’s application since those jurisdictions already had laws governing property concerns. Currently, Punjab is exempt from the transfer of property statute since it abides by the principles of a good conscience, equality, and justice.
  • The Transfer of Property Act, 1882 emphasizes the inclusion of an inter-Vivos clause that runs concurrently with the existing rules governing testamentary and interstate transfers.
  • Since the Transfer of Property Act, 1882 is a general statute, the particular legislation approved by the parliament cannot be overridden by it.
  • According to the Transfer of Property Act, 1882, absolute conditional restraint on the transfer of property is unlawful, but partial conditional restraint is legal.

Conclusion 

The Transfer of Property Act, 1882 was first proposed with the goal of creating a comprehensive Act that explains the transfer in very simple terms; however, at the time of introduction, it was incomplete.

It has, through several amending procedures that, the statute has repeatedly demonstrated its efficacy. Many more laws similar to the Transfer of Property Act of 1882 need to be introduced in India.

Property can be transferred by way of sale, exchange, lease, gift, etc. One must consult a lawyer for getting the gift deed registered, as it saves time.

Bhavya Choudhary

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Bhavya Choudhary

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