TRANSFER OF PROPERTY ACT, 1882: The Property Transfer Act is a law that governs the transfer In India, property is divided into two types: movable and immovable. This Act governs the transfer of property/assets (movable or immovable) between living people, & it took effect on July 1, 1882.
The Transfer of Property Act is a contract law extension that is comparable to succession laws and is one of the oldest laws in the Indian court system. Those intending to transfer their immovable property should be familiar with the Transfer of Property Act’s major clauses.
The Purpose/Objective of the Act
Parties: A property transfer can be completed by the act of 2 or more parties or by the application of the law.
Property types include:
The Transfer of Property Act directs the conveyance of immovable property from one living human being to another (inter vivos). Furthermore, the Act governs both corporate and personal property transfers. On the other hand, the Transfer of Property Act applies to acts of parties instead of lawful transfers.
The Transfer of Property Act of 1882 has a long and illustrious history
Prior to the establishment of the British Raj system in India, Hindus & Muslims were governed according to their own property laws. In contrast to English law, when Britishers became involved in the Indian judicial system, they established informal courts in which there was no distinct and concrete law. Numerous High Courts have ruled that specific property transfer acts must be carried out. The Privy Council acknowledged the concerns and suggested the authorities to act quickly because the concept of moral, equity, and justice was puzzling and created numerous uncertainties.
As a consequence, Queen Elizabeth II of the United Kingdom appointed the first commission to resolve the problem. But when relates to real estate transfers. After some measures were adopted in the Legislative Council in 1877, the report was delivered to India. It was then sent to the appointing authority, but due to public outcry, it was withdrawn. The Second Law Commission had to rewrite the bill. The Laws of Conveyancing & Property Act of 1881, in particular, was a source of inspiration for several of the clauses. The law has been written in such a way that it is suited for the Indian populace and easy to understand for a non-professional jury.
As a result of the Second Commission’s repeated modifications, the Act became more comprehensive.
As an outcome, a special committee was formed to implement the essential legal provisions. As a result, the statute has undergone multiple amendments in attempt to widen its scope and remedy existing flaws.
Different types of Property Transfers are available.
The Transfer of Property Act defines six primary forms of property transfers:
- Mortgage exchanges
- Actionable claim
Certain properties are prohibited from being transferred under the Transfer of Property Act.
Sec 6 states that any type of property may be transferred, with the exception of:
- The possibilities of heir succession.
- A right of re-entry in the event that any conditional leasing agreements are breached.
- You can’t sell or transfer an easement.
For example, the right of way and the right of light,
- Religious office privileges, such as mahant and priest, cannot be transferred.
- The right to maintenance in the future is non-transferable.
- It is impossible to transfer a mere right to sue.
- There is no such thing as a government job or a wage.
- The government’s military, navy, and air force retirees are eligible for a stipend
Who has the Authority to Transfer Property?
Sec.7 of this act, states that Everyone who is eligible & competent to enter into contract, i.e. a major & of sound mind, or who is not prohibited by law from contracting, is able to do so, according to Sec. 7 of the Transfer of Property Act of 1882.
An individual should be at least 18 years of age & of sound mind to enter into contracts under I.C.A ,1872.
A Verbal/Oral agreement is used to Transfer Property (Sec.9)
Property transfers can be completed through oral agreements, according to Section 9 of the Act, unless the legislation clearly indicates that a written agreement is required to complete the transaction. In the specific instance of immovable property worth less than Rs 100, such transfers could be formed through the use of a registered instrument or by physical delivery of the property. It suggests that approximately no immovable property can be conveyed into the name of another individual without a legal document being executed.
Verbal contracts, on the other hand, are generally ineffective, with the exception of division of property, where members of the family may enter into a verbal agreement & divide the asset for pragmatic purposes.Written contracts are usually needed for a property transaction to be legally enforceable . This is true, among other things, for sale, gifts, and leases.
Transfer Property to an Unborn Child
The terms of the Transfer of Property Act must be considered by anyone who desires to leave their property to more than one generation. This is considered to prevent future legal issues.
Sections 13 & 14 of the Transfer of Property Act make it illegal to transfer property directly to an unborn baby. To provide it, the person transferring assets first must do it in the account of those who are still living at the time of the transfer.
Until the unborn child is born, the property must be held in this person’s name. Basically, a parental interest in a property must come before the unborn child’s interest in the property.
Until the unborn child is born, the property must be held in this person’s name. In essence, the unborn child’s interest in a property should be initiated by a prior interest.
If the criteria have been met, property can be transferred conditionally under Section 25 of the Transfer of Property Act, 1882. If the requirement became unfeasible, illegal, opposed to public policy, or immoral, the transfer would be void
Under the 1882 Transfer of Property Act, there are several different types of Property Transfers
- Sale of immovable property: the buyer transfers ownership to the seller in exchange for a price. From the seller, the buyer receives tangible property.
- Immovable property mortgage: a mortgage is used to transfer property from the buyer to the seller, and the immovable property is mortgaged to guarantee a loan. The mortgagor should pay the principal debt plus interest in order to have the immovable property released from the mortgage.
- Immovable property leases: in this case, possession of the property is transferred from one person to another for a service charge, but possession is not transferred.
- Immovable property exchange: a property exchange occurs when two people agree to transfer immovable property.
- Gift of immovable property: As per to the Act, a gift is defined as a violent or nonviolent transaction of movable property or immovable property through one individual, the donee, to another person, the donor, that is acknowledged by and on behalf of the donee.
Conclusion of the Transfer of Property Act
The purpose of the Act was to provide a comprehensive piece of legislation that explains the transfer in simple English. When it was first presented, however, it was incomplete and had a lot of uncertainties. It has experienced multiple changes, and the act has repeatedly demonstrated its effectiveness. Additional law, such as the 1882 Transfer of Property Act, is needed in India.