Transfer of Property Act 1882

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 Q. What do you understand by "Transfer of Property" by act of parties?
      Explain the essentials of transfer of property under the transfer of Property Act. 

Answer

1. INTRODUCTION: In all the human societies, at every episode of human history, it has been the post prominent of all phenomena that people give the other what they have, in order to take from the other what they have not. This act of giving has been termed as 'transfer'/ Property may be transferred in two ways: one by an act of living parties, such as sale, gift, lease, etc., and second by operation of law, such as succession, inheritance, etc. In latter by Muslim Personal Law and the Succession Act. 

2. RELEVANT PROVISIONS: Section 5 of the Transfer of Property Act defines the expression 'transfer of property' and also explains the terms "living person". 

Section - 5
"Transfer of property" defined. In the following section. "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himself] and one or more other living persons; and "to transfer property" is to perform such act. 

3. DEFINITION OF "TRANSFER"

  1. BLACK'S LAW DICTIONARY (6th EDITION): Transfer is "an act of the parties, or of law, by which the title to property is conveyed, direct or indirect, of disposing of or parting with property or with property or with an interest therein, or with the possession thereof, or of fixing a lien upon property or upon an interest therein, absolutely and conditionally, voluntarily or involuntarily, by or without judicial proceedings, as a conveyance, sale , payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise"
  2. CASE LAW DEFINITIONS: 
    (i). ILR 5 ALL. 137(FB): The word transfer is used in the most generic significance, as comprehending all the species of a contract which pass real right in property from one living person to another living person.
    (ii). AIR 1966 SC 1300: In its general sense, the expression 'transfer of property' connotes the passing of rights in the property from one person to another. In one case there may be a passing of the entire bundle of rights from the transferor to the transferee. In another case, the transfer may consist of one of the estates only out of all the estates comprising the totality of rights in the property. In a third case, there may be a reduction of the exclusive interest in the totality of rights of the original owner into a joint or shared interest with other persons.
  3. OXFORD DICTIONARY: 'Transfer' means 'to convey', remove or hand over a thing, or, to make over the possession of a property to a person.
4. ESSENTIALS OF TRANSFER OF PROPERTY: Section 5 of the T.P. Act, 1882, postulate that the following essentials must be there to constitute a valid transfer under the Act.
  1. There must be a property.
  2. There must be conveyance of property.
  3. Conveyance must be effected by a living person.
  4. Property must be conveyed to a living person.
  5. Conveyance may be in future or in present.
  6. Conveyance may be to another or to oneself.
  7. It must be an act inter parties and not by operation of law.
5. EXPLANATION OF ESSENTIAL OF TRANSFER:
  1. THERE MUST BE A PROPERTY: The term "property" simply means "the thing or things owned or possessed". According to Black's Law Dictionary, property denotes "an aggregate of rights respected and appreciated by law". 
             The word 'property' is a most comprehensive term, descriptive of every possible interest in a thing which a man can have or possess. It includes everything which may be owned and have a value. It denotes...
    i) Corporal things.
    ii) Rights in the nature of ownership
    iii) Rights of exclusive possession and enjoyment short of ownership
    iv) Merely rights, which do not involve possession, though they may involve a use, as a right of          easement.

    Illustrations: Following have been held to be the instances of 'property':

    a) An actionable claim.
    b) A copyright in a literary composition.
    c) Where the enjoyment of tenancy right has not been restricted to the tenant personally under the terms of the lease or there is no enactment which restricts the enjoyment of the tenancy right to the tenant himself, the right of the tenant is property
                                                                                                                    (AIR 1959 Assam 61(DB))
    d) All rights relating to physical objects.
    e) Interest of a person in possession without title.

  2. THERE MUST BE CONVEYANCE OF PROPERTY: 'Convey' means to deliver something, such as a right or property, to another person. Therefore, a conveyance is a voluntary transfer of a right of property. The word 'transfer is defined in Section 5 with reference to the word "convey". This word in English law in its narrower and more usual sense refers to the transfer of an estate in land; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. 


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