Lecture-

6
Transfer of Property
Transfer of property (S.(Property)
5)
• In the following sections “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, or to himself and one or more
other living persons; and “to transfer property” is to
perform such act.
• 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.
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Transfer of Property
Transfer of(Property)
Property: Meaning
 Family settlement. Not a transfer of property.
 Ramdeo Foods Products Pvt Ltd v Arvindbhai
Rambhai Patel AIR 2006 SC 3304.
 Sadhu Madho Das v Pandit Mukund Ram AIR 1955 SC
481.
 Compromise: Agreement for the settlement of doubtful
claims between the parties in respect of some property.
Therefore, not a transfer of property.
 Partition: (Separating the parts of co-owned property;
process by which joint enjoyment is transformed into an
enjoyment severally, and no conveyance is involved in the
process as the conferment of new title is not necessary).
Therefore, not a transfer of property.
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Transfer of Property
Transfer of (Property)
Property: Meaning
 Surrender: (Merging of a lesser or smaller interest with a
greater interest in such a manner that the greater interest
is not enlarged). Therefore, not a transfer of property.
 Release: (If a larger interest falls into a smaller interest in
such a way that smaller interest is enlarged, then, for the
holder of smaller interest, there is creation of new titles or
interest). Therefore, it is a transfer of property.
 Relinquishment: (Giving up one’s rights or interests. Its
effect is extinction of one’s rights in a property; there is no
intention that the person relinquishing his interest is
conveying that interest in favour of another person).
Therefore, not a transfer of property.
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Transfer of Property
What May be Transferred:(Property)
Transferability of property (S. 6)
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) Spes-Successionis: means expectation of succession, and is
therefore not a present property. It includes:
o the chance of an heir-apparent succeeding to an estate, cannot be
transferred.
o the chance of a relation obtaining a legacy on the death of a kinsman, cannot
be transferred. or
o 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. A right of re-entry means a right to resume
possession of the property from the other party upon the breach of
a condition subsequent.

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Transfer of Property
• (c) An easement cannot (Property)
be transferred apart from the
dominant heritage.
• (d) Restricted Interest: An interest in property restricted in its
enjoyment to the owner personally cannot be transferred by
him.
• (dd) A right to future maintenance, in whatsoever manner
arising, secured or determined, cannot be transferred.
• (e) A mere right to sue (for uncertain or indefinite sum of
money) 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.
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Transfer of Property
(Property)
• (h) No transfer can be made
o (1) insofar as it is opposed to the nature of the interest affected thereby
(e.g. air, light, space, sea, etc), or
o (2) for an unlawful object or consideration within the meaning of section
23 of the Indian Contract Act 1872, or
o (3) to a person legally disqualified to be transferee.

• (i) Untransferable rights of occupancy: Nothing in this

section shall be deemed to authorise a tenant having an
untransferable 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.

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Transfer of Property
(Property)

Persons Competent to Transfer (S. 7)

• Every person competent to contract, and
• Entitled to transferable property, or authorised 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.

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Transfer of Property
(Property)

Transfer of Property: General Features

• Transfer of property is an act or process
• Transfer of property is to be made by living person
• In transfer of property, the transferor conveys (doing of
an act which is called transfer) the property
• Transfer of property may be made so as to take place
with immediate effect or to take place in future
• Property
• To another living person
o To himself

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Transfer of Property
(Property)
Transfer of Property: General Features
Following are not cases of transfer of property:
• Family settlement/ arrangement
• Compromise (agreement for the settlement of doubtful claims
between the parties in respect of some property)
• Partition (separating the parts of co-owned property)
• Surrender (merging of a lesser or smaller interest with a greater
interest in such a manner that the greater interest is not enlarged).
However, release( if a larger interest falls into a smaller interest in
such as way that the smaller interest is enlarged) is a transfer of
property.
• Relinquishment (giving up one’s rights or interests, i.e. extinction of
one’s rights in a property).
• Charge (it is created on a property for securing a payment out of
that property).
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Transfer of Property
(Property)
Essentials of a Valid Transfer
• The property must be transferable.
• Transferor must be competent.
• Transferor must also have the right to transfer.
• Transferee must also be competent as required by
the TPA.
• Necessary formalities prescribed by law for the
transfer must also be completed.
• A transfer of property may be made without writing
in every case in which a writing is not expressly
required by law (S. 9).
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Transfer of Property
Modes(Property)
of Transfer
• Delivery of Possession: Where writing is not necessary under the TPA,
the property may be transferred orally, i.e. only by delivery of possession.
• Registration: Where registration is necessary, the transfer must be in
writing. The TPA provides that the following transfers must be made only
through a written deed duly registered:
o Sale of immovable property exceeding Rs. 100 (S. 54)
o Sale of reversion or other intangible property irrespective of its value (S. 54)
o Simple mortgage irrespective of the amount secured (S. 59)
o Other kinds of mortgage (except mortgage by deposit of title deeds) where the
sum secured exceeds Rs 100 (S. 59)
o Gift of an immovable property (S. 123)
o Leases from year to year or for a term exceeding one year or reserving a yearly
rent (S. 107)
o Exchange of immovable property exceeding Rs 100 (S. 118)
o Transfer of actionable claims (registration is not necessary, writing is sufficient)
(S. 130)

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