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Transfer of Property

Updated on May 7, 2017

The importance of property in the lives of the people living in this materialistic world cannot be ignored. Since the beginning of time, people have had a number of disputes over properties and have lost their lives in doing so. The unsettled disputes over property have made friends, enemies of one another and families have separated just because of the countless and unsolved disputes over the property. Precious lives and years have been wasted just because there was no proper guidance for the people in the earlier days to settle their disputes. The basic purpose of law is to facilitate its citizens and not to put too many restrictions on them. With the passage of time people started working on this serious issue to find a way to deal with the property disputes.

A bill covering major areas related to property issues was presented before legislative council and became a law and came into force on 1st July 1882. It came to be known as Transfer of Property Act 1882. It mainly deals with transfer of immovable property, voluntary transfers, defining and amending existing laws, embodying principles of equity, justice and good conscience, regulation of transfer of property between living persons and completing the code of contract law for immovable property.

Law of property is a fundamental right and the provisions as to property are given in the Article 23 of the constitution. The transfer of property means that possession of a thing whose ownership changes. The word transfer is a comprehensive term used to describe the movement of a thing from one entity to another. If defined in more detail it is defined as the transfer of title from owner to another person

Section 5 of this Act defines the meaning of transfer of property. This definition does not apply to other expressions used in other Acts. This Act particularly deals with the transfer of property between living persons. The transfer may be in present or in future. By a person it means a company, an association, a bank or a body individual, or an entity that is existent and has rights and liabilities. A Transfer of Property is a contract hence all necessary requirements to constitute valid contract are to be fulfilled. This section provides an opportunity to transfer property in future. This evolutionary Act on Transfer of Property Act is massive enough to cover any transaction, which has the outcome to conveying property from one living person to another. But every picture has two sides, as this section contains a chance to transfer the property in future, which may create a scope for fraudulent activities. It does not define legal effectiveness on transfer of property. The definition of transfer in this section is not applicable to partition Act, where it simply means change of ownership. This section does not apply in respect of the property sold in Auction sale.Now in order to make a transfer valid there are some essentials that need to be fulfilled by the parties involved in the transfer of any property. The transferor is the person who is transferring the property and he must be competent to do so that is to say that he must be a major, sound mind, not disqualified by law and has the ownership of the property. Similarly, transferee is the person to whom the property is being transferred and he must be competent to hold the property. In the transfer of property the object must be lawful and consideration must be there, otherwise the property cannot be transferred. In the transfer of property registration and attestation is necessary. The transferor and the transferee must be living and the property whose transfer is concerned must be in existence. Section 7 of the transfer of property Act is concerned with the competency of persons competent to transfer. In this section the power is given to the transferor that he can transfer the property absolutely or conditionally. The minor is not competent to transfer property but he is competent enough to become the transferee, which completely destroys the chance of equality of law.

Section 6 of this Act further talks about the property that can be transferred. It says that a mere right of re-entry is meant a right to resume possession of land that has been given to another person for a certain time. It further says that the right of re­entry cannot be transferred by itself apart from the land. This section also talks about the right of easement. An easement is a right to use, or restrict the use of land of another entity in some way. This section also states that a person cannot transfer an interest, restricted in its enjoyment of him. A transfer of such kind of interest would defeat the object of the restriction. This section also talks about maintenance and says that a right to future maintenance is solely for the personal benefit of the person to whom it is granted and, therefore, it cannot be transferred. It further discuses the right to sue that a mere right to sue in respect of damages for breach of contract, or for tort, cannot be transferred. The object of the prohibition is to prevent gambling. A right to sue is personal to the party aggrieved. This section declares the transfer of a public office as invalid. This section explains the nature of the property that can be transferred under this provision. This section will not affect any law for the time being in force and that is why it is totally unfruitful. This present section does not apply to Mohammaden laws so it raises the chances to contradiction.


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