Transfer of property act came into force on 1st July 1882 and it governs the transfer of property in India. “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, 1[or to himself] and one or more other living persons; and “to transfer property” is to perform such act. 1[In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. [1]
Bequeathing of tenancy rights by tenant under the will to his heirs does not amount to transfer within the meaning of Section 5 of the act.[2]
Conditions for valid transfer
There are eight essentials of a valid transfer of property
- Transfer of property must take place between two or more living persons
The transfer of property must be inter vivos, that is it must take place between two or more living persons. The “living person” must include a company or association or body or individuals. Supreme court in the case of Jugalkishore vs Raw Cotton Co. Ltd[3] held that the words ‘in present or in future in Section 5 of the Transfer of Property Act qualify the word ‘conveys’ and not the word ‘property’.
What may be transferred.—Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,—
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby;
(c) An easement cannot be transferred apart from the dominant heritage;
(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him
(e) A mere right to sue cannot be transferred;
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;
(g) Stipends allowed to military [naval], [air-force] and civil pensioners of the [Government] and political pensions cannot be transferred;
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 , or to a person legally disqualified to be transferee[4]
Partition is not the Transfer of property[5]
- The transfer must not be opposed to the nature of the interest affected thereby or for an unlawful object or consideration
Res communes means ‘common things’. Things common to all, things that cannot be owned or appropriated, such as light, air and the sea[6]
Section 23 of Indian contract act states that unlawful object and consideration is one which is forbidden by law and is of such nature that would defeat the provisions of law
- The transferor must be competent to contract or authorized to dispose of his property which is not his own
Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force[7]
- The transfer should be made in accordance with the prescribed mode
It is stated in section 9 of transfer of property act that the transfer can be done orally also. A transfer of property may be made without writing in every case in which a writing is not expressly required by law.[8]
Rule of perpetuity is defined in the section 14 of the act. No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.[9]
Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.[10]
Illustration
A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.[11]
- If the transfer is conditional, such transfer should not be illegal ,impossible or against public policy
An interest created on a transfer of property and dependent upon a condition fails if the fulfillment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy[12]
Illustration[13]
(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.
(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.
(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.
(d) A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer is void.
“The views of the authors are personal“
Reference
[1] Section 5 of Transfer of Property Act
[2] Kenneth Solomon vs Dan Singh Bawa Second Appeal No. 16/1977 decided on 22.04.1985(Delhi H.C.)
[3] AIR 1955 SC 376
[4] Section 6 of Transfer of Property Act
[5] V.N. Sarin vs Ajeet Kumar, AIR 1966 SC 432
[6] Black’s Law Dictionary,7th Ed., p.1308
[7] Section 7 of Transfer of property Act
[8] Section 9 of Transfer of property Act
[9] Section 14 of Transfer of property Act
[10] Section 13 of Transfer of property act
[11] Transfer of property Act 1872
[12] Section 25 of Transfer of Property Act
[13] Transfer of property Act 1872
