This article is written by Debraj Mohanta, a student of B.A. LL.B at South Calcutta Law College, Kolkata during his internship with Le Droit India.
INTRODUCTION
The preface of the transfer of property act lies in the title itself. The Transfer of Property Act, 1882, is a descriptive legislation that deals with the transfer of parcels in India. The Act defines the conception of transfer, frames the procedures, and specifies the laws applicable to different scripts. The Act allows individuals, companies, or groups to transfer ownership of property, whether it’s happening now or planned for the future. It ensures that the person transferring the property is legally capable of doing so, meaning they must be of legal age and mentally sound. The property being transferred can include various types, such as land or buildings, as long as there are no laws preventing the transfer. Additionally, the Act emphasizes that property cannot be transferred to someone who is not yet born; instead, it must be given to someone who is alive at the time of the transfer. Overall, the Transfer of Property Act aims to create a clear and fair framework for property transactions in India, helping to prevent disputes and misunderstandings.According to Section 5 of the Transfer of Property act, 1882 the act of a live person transferring property to one or, more individual, himself and other living persons is considered a property transfer. The phase “assignment” refers to dealing a home, transferring a mortgage or the other property right or enforcing debt. Some of the major crucial rudiments of the particular act are that-
The transfer of property must be executed by an individual who is legally competent, meaning they should be of sound mind and have reached the age of majority, or not be legally disqualified.
The transfer can take place in the present, while the actual enjoyment or use of the property may occur in the future. For a property transfer to be valid, the property must be capable of being transferred. The property must meet specified criteria to be considered transferable. Transferring property to an unborn child is not permissible; however, it can initially be transferred to a living person who exists at the time of the transfer.
Ultimately, Section 5 of the Transfer of Property Act, 1882 defines the “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, 2 [or to himself] and one or more other living persons; and “to transfer property” is to perform such act. 3 [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.]
Analyses of Section 5 help us understand the meaning of the expression “transfer of property”. Therefore, transfer of property means an act which may take effect in the present or unborn. The property in question must be in actuality at the time transfer takes place. Also the vehicle of property must be from one person to another. When a portable property is transferred inter-vivos (between two living person), deals of good act, as well. In case of where the property is transferred between a dead and a living human the law applied is the law of race.Typically, property has a specific connotation in the literal sense, encompassing wealth and other tangible assets of value. It also refers to any significant right regarded as a source of income or an element of enjoyment, allowing an individual to use and dispose of certain assets in the most unrestricted manner, provided they do not violate any legal stipulations.
Analysis of Section 5 of the Transfer of Property Act: – Section 5 of the Transfer of Property Act outlines “transfer of property” as the process by which a living being—be it an individual, corporation, association, or collective group—transfers property either in the present or for future use to one or more other living beings, or to itself acting as a trustee. The individual transferring the property, known as the transferor, must possess the legal capacity to enter into a contract, have reached the age of majority, and be of sound mental condition. Furthermore, the transfer cannot be applied retroactively, and the recipient must be a living person or entity. The property involved can be classified as movable, immovable, tangible, or intangible, provided it does not violate any legal prohibitions.
Eventually, Section 6 of the Transfer of Property Act states—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 anyone except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage. (d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
(d) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.]
(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 6 [, naval], 7 [air-force] and civil pensioners of 8 [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 (2) 9 [for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee].
Nothing in this section shall be deemed to authorise a tenant having an transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.
Some key factors of the mentioned section are that:-
- Transportable: Property can generally be transferred unless otherwise stated; however, non-transferable properties include those designated for public or religious purposes, as well as specific rights such as the entitlement to future maintenance or mere rights to initiate legal action.
- Legal Restrictions: Transfers to individuals who are legally barred from receiving them are not allowed. This aligns with the requirement that transferees must be competent to contract.
- Exceptions: Certain exceptions are specified, including the ability to transfer pension and public offices; furthermore, interests that inherently relate to their nature cannot be transferred, such as the right to service after ten years tied to personal benefits.
Case Law: The interpretation of Section 6 has been shaped by various court rulings, emphasizing its practical application in real estate and property disputes.
Overall, Section 6 serves as a foundational element in property law, balancing the rights of property owners with public policy considerations
One of the landmark case regarding Section 6 of the act is – SHANTI PRASAD V. BACHCHI DEVI
The examination of the case involving Shanti Prasad (the lessor) and Bachchi Devi (the lessee) centers on the contractual obligations outlined in their lease agreement. A significant conclusion drawn from this analysis is that the lessor did not provide explicit or implicit consent for the lease’s renewal. The original contract laid out a specific procedure for renewal, necessitating mutually agreed terms or mediation by Mukhias and Panchas. This indicates that the lessee lacked a legitimate basis for claiming renewal.
In a related matter, the judgment in Pratibha Singh v. Shanti Devi Prasad (2018) by the Jharkhand High Court underscores the necessity of adhering to the stipulated terms and processes within contracts. This reinforces the notion that Indian courts prioritize the observance of agreed-upon protocols in lease agreements.
Furthermore, the case of Shanti Devi (2005) has been scrutinized in relation to women’s reproductive rights in India. The analysis reveals that the government’s inability to safeguard Shanti Devi’s rights to life and health underscores the urgent need for enhanced litigation and advocacy to uphold women’s reproductive rights.
Additionally, in the case of Bachni Devi & Anr v. State of Haryana, there is an emphasis on the integration of legal aid and awareness initiatives to facilitate access to justice for vulnerable groups, particularly women.
In summary, the analysis of the Shanti Prasad v. Bachchi Devi case highlights the following key points:
Contractual compliance: The necessity of adhering to established procedures and terms in lease agreements.
Procedural fairness: The importance of following agreed-upon protocols in resolving contractual disputes.
Protection of human rights: The need for stronger advocacy and legal efforts to safeguard the rights of vulnerable individuals, including those related to women’s reproductive health.
Another landmark case can be mentioned – ANANTHAYYA V SUBBA RAO’s
Case analysis: The petitioner and respondent are siblings, with the respondent being the eldest and the petitioner the youngest among four brothers. Their father passed away in 1927 when the petitioner was around 10 or 11 years old and still a student in the local village school in South Kanara District. Following their father’s death, the respondent assumed a paternal role, ensuring the petitioner received an education, which enabled him to pass his High School exams and later attend College and Engineering College at Guindy. By 1938, after completing three years of his engineering course, the petitioner had one year left along with a practical course before he could start earning a living. At this point, the respondent requested that the petitioner agree to provide for his maintenance once he began earning. The agreement stipulated that the petitioner would pay a percentage of his income to the respondent, with specific amounts outlined based on his earnings, continuing until 1958. If the respondent passed away before then, payments would go to his dependents. The petitioner’s counsel argues that this agreement is void due to public policy, as it constitutes an assignment of a public officer’s salary under Section 6(f) of the Transfer of Property Act. However, it was noted that the petitioner is not required to make payments solely from his salary; he could also use savings or gifts. The payments were based on the petitioner’s earnings, which were not unconscionable given the support he received from the respondent throughout his education. After 1958, the petitioner would only need to pay a minimal monthly amount, contingent upon his income exceeding a certain threshold. The appeal has been dismissed, and considering the familial relationship, both parties are instructed to bear their own costs in the Second Appeal.
CONCLUSION
The Transfer of Property Act of 1882 serves as a foundational structure regulating property transfers in India, having been established during the colonial period. While adapting to the changing socio-economic environment, the act has maintained its core principles. It offers detailed instructions for diverse property transfer methods, such as sale, mortgage, lease, and gift, ensuring transparency and legal legitimacy in real estate transactions.
The act outlines the rights and obligations of both transferors and transferees, protecting their interests and fostering fair transactions. Its provisions promote the systematic transfer of property rights by reducing disputes and increasing legal clarity in property dealings. By requiring the registration of specific transactions, the act establishes a public record that secures and upholds the rights of the parties involved. The Transfer of Property Act serves as a cornerstone of property law in India and is a vital tool for individuals and entities engaged in real estate dealings. It provides a structured and reliable framework for the ownership and transfer of property. Its enduring significance underscores its impact on shaping the evolution of property law throughout the country. In summary, the Transfer of Property Act is not only a fundamental element of property law in India but also an essential resource for individuals and organizations involved in real estate transactions, offering a systematic and dependable framework for property ownership and transfer. Its lasting importance highlights its role in influencing the development of property law within the nation.
