Transfer of Property is an act by which a living person transfers property to one or more other living persons or oneself in the present or future. The Transfer of Property Act of 1882 is the legislation in India that governs and regulates property transfers.To execute such transfers, we need to understand not just what properties may be conveyed but also the mechanisms by which such transfers work.
Section 8 of the Transfer of Property Act
Section 8 of the Transfer of Property Act states that “Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is capable of passing in the property and legal incidents thereof.”However, Section 8 of the Transfer of Property Act talks about the issue of transfer to a living person.
Essentials of the operation of transfer under Section 8 of the Transfer of Property Act
There are three major elements of section 8 of the Transfer of Property Act which are as follows-
1)Transfer without Consideration
The transferor is said to transfer something unconditionally when he lays down no condition and is willing to transfer his property without any consideration, or if he has not expressed any intention, then it would count as a conditional transfer;
Gift deed: The transferor may execute a gift deed. This would mean that he would transfer his absolute interests and title in the property to the transferee, and the law would presume that he has no contrary intention. A deed is said to be an unqualified or unconditional transfer.
2) Legal incidents of transfer:
This is the most important aspect of Section 8 of the Transfer of Property Act, which means that whatever comes along or is attached to the property needs to be transferred. In other words, the property and any legal incidents associated with it must be transferred as part of the same transaction. A person cannot transfer anything to another by performing activities that he is not authorised to perform.
a)Land: All things attached to the earth, Rent and profit occurring after the transfer, Easement attached to it
b)Machinery: In the case of machinery, all its movable and immovable parts shall be transferred.
c)Home or house: Locks, keys, windows, etc. all that provide permanent use, Rent, and profits occurring after the transfer, an easement annexed with it
d) Debt: If the property transferred is a debt, then all securities with that debt shall pass on to the transferee.
e) Money: Money or other property that has the potential to generate income must be transferred, with the interest or income accumulating after the transfer takes effect.
Right of Preemption
Moreover, when there are several owners of immovable property, each co-owner has the right to transfer his or her portion of the property or any interest therein. To transfer property,under Section 8 of the Transfer of Property Act a co-owner does not necessarily have to wait for or obtain consent from other co-owners. However, the surviving co-owners would have priority over third-party outsiders in acquiring the property. This is referred to as the right of preemption..
3) Different intentions expressed or implied:
Unless and until the transferor expresses a different intention, the property and all his interests are said to be fully transferred to the transferee. In some cases, the transferor may reserve some interest in the property for himself or may not want a specific part to be passed on. This will be communicated by using a phrase or term.
If the words are not clear, then the intention prevails upon execution of the deed of sale. There is some question as to whether the title passes to the vendee or not, which depends upon the parties’ intention.
Registered sale deed:
Another important point to be noted is that Section 8 of the Transfer of Property Act and Section 54 suggest that, through the execution and registration of a sale deed, the title and interest would be fully transferred to the transferee according to the terms mentioned in the agreement.
Gender Restrictions in Absolute Estate
1) There have always been some restrictions in the transfer of property according to the Section 8 of the Transfer of Property Act to women and some ambiguity regarding inheritance and absolute enjoyment of property. The Supreme Court in a judgement stated that “A transfer conveys the full estate of the transferor when no restriction is expressed by the deed”. In the case of females, it was a unanimous assumption and obscurity that the Hindu law requires a gift to a female to be understood solely as a restricted and limited gift.
2) The points that were put forth by the Proposition in Mahomed Shumsool’s case were interpreted by Indian High Courts to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance, which she could alienate for her own enjoyment, unless the deed expressly grants her the power of alienation.
3) It has recently been examined in some High Courts that, according to the law as in Section 8 of the Transfer of Property Act it is now understood, there is no presumption one way or the other, and there is no difference between the case of a male and the case of a female; it has been clearly stated that “The fact that the transferee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male.”
4) As we discussed above, this is the basic concept of law acknowledged and contained in Section 8 of the Transfer of Property Act, and there is no reason for diverging from this principle unless it is demonstrated that under Hindu Law or any specific provision, a gift to a female indicates a limited gift or bears with it the limitations.
In light of the above explanations given, it can be understood that the operation of transfer provides the clarification that the transfer of property passes on all the interests as well as the legal incidents to the transferee. In other words, both the property and the legal incidents associated with it must be transferred as part of the same transaction. Section 8 of the Transfer of Property Act is read with various other provisions, making it an important part of the concept of transfer.The legal consultancy services will help the individual with operation of transfer of property.