Introduction- The Transfer of property Act (TPA) provides the legal framework for the Transfer of property in India. Transfer of property is an act by which a living person conveys a property, in present or in future, to one or more living persons or to himself. The TPA recognises several modes of transfer of property, including Sale, Gift, Mortgage, Lease, and exchange. Each mode has their own procedure and requirements that must be followed but there are certain basic essentials are there for transfer of property. In this article, we will discuss basic essentials of a valid transfer under the transfer of property act, 1882.
- Transferable Property- For a valid transfer under the Transfer of Property Act, the property must be a transferable property. As per section 6 of the act, the property should not be prohibited to transfer under any law enforced in India. Section 6 specified the property which cannot be transfer such as:
- Spes-successionis
- Mere right of re-entry
- Easement apart from Dominant Heritage
- Restricted Interest
- Right to future maintenance
- Mere right to sue
- Public office & salary of Public Officer
- Pensions and Stipends
- Transfer opposed to Nature of Interest
- Untransferable Right of Occupancy.
- Transferor must be competent- A person who conveys a property named transferor. Transferor may be a individuals or a juristic person, juristic person may include company or association. According to section 7 of the Transfer of Property Act, any person who is competent to contract under the Indian Contract Act, 1872 , is also competent to transfer a property.
Competent to Contract- Section 11 of the Indian Contract Act, 1872 enumerated the following conditions for a person who is competent to contract. These conditions are:
- Age of Majority- A person attains majority at the age of 18 years and below the age of 18 years, a person is considered as a minor. So, the transferor must be a major and any transfer made by a minor shall be void.
- Sound Mind- A person must be a sound mind and he must have capacity to understand the nature of the act at the time of contract. The transfer of property by a person of sound mind is a valid transfer.
- Not disqualified by any other law- A person should not be legally disqualified to transfer the property by any law enforced in India. For example- if the property is disputed and under the supervision of the court, the transferor cannot transfer the property as he is legally disqualified by the law.
- Transferor must have right to transfer the property- the transferor must be authorised to transfer the property which he should have title in the property. For example- a tenant cannot transfer the property in which he is tenant although he possess it but he is not owner of the property so he is not entitled to transfer the property. In Attaur Rahman Fateh Md. Vs. Hari Birand, AIR 2008, it was held that if a person has no transferable interest in property cannot transfer it and the transferee is not bound by an agreement executed by such transferor.
- Transferee must be competent- A person who receives the property is transferee. There is only a requirement for the transferee is that the transferee must be a living person or in existence at the time of transfer. A transferee may be a minor or insane or even a child in mother’s womb.
- Other requirements prescribed by law for the transfer- The transfer of property act prescribes various provisions for different kinds of transfer of property such as sale, gift, mortgage and so on. Every kind has their own procedure to transfer the property so any other requirement also be satisfied as per their procedure.
In the case of Sadiq Ali Khan v. Jaikishore, AIR 1928 PC 152, the privy council observed that transfer of property made by a minor is void and cannot be validate as he is not competent transferor but transfer of property made to a minor is valid.
In the case of Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff, AIR 2011 SC, It was held by the court that the entire agreement comprising the whole of the property including the share of the signing co-sharer was void and ineffective where an agreement for sale of an immovable property was not joined by one of the co-sharers.
Conclusion- Transfer of property simply means to transfer interest vested in property as soon as a property is transferred by the transferor to transferee, the transferee gets all the rights of the property including right to alienation or right to enjoy the property but only the condition is transfer of property should be valid and accordance with the provisions of the act. Non-compliance of the provisions of the act, shall make transfer void.
Keywords- Property, Transfer, competency, contract, conditions
The article is written by Priya Aggarwal, student of Himgiri Zee University
