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Transfer of property act

Section 1: short title, Commencement and extent:

This act may be called transfer of property act, 1882. It shall come into
force on the first day of July, 1882.

Section-2: interpretation clause:

Immoveable property: Section-3 defines that immovable property

does not include standing timber, growing crops or grass. Because the
purpose of these things is to cut off so after cutting it becomes movable.

In transfer of property act, the definition of immovable property is not

which is given in general clause act 1887.

In general clause 1887, the definition of immovable property is that

which is not movable.

It shall include lands, benefit arises from land, thing attached to the
earth weather rooted e.g.: trees or imbedded e.g. walls and buildings. So we
require intention while difference between movable and immovable thing
there are some formalities from valid transfer.

Instrument:

Instrument means a non-testamentary instrument.

Attested:

Attested means attestation of an instrument by two or more witnesses.

Each of the witnesses has seen the executants sign to the instrument or other
person signing in the presence of executants.

Each of the witness’s signs in the presence of executants, but it shall

not be necessary that more than one of such witness shall have been present
at the same time. And no particular form of attestation is necessary.

Registration:
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Registration means register in a province under the law for the time
being in force regulating the registration of document.

Attached to the earth:

Attached to the earth means:

 (1) Rooted in the earth, as in the case of trees and shrubs.

 (2) Imbedded in the earth as in the case of walls or buildings.
 (3) Attached to what is so imbedded for the permanent beneficial
enjoinment of that to which it is attached e.g. door, window etc.

Notice:

A person is said to have notice, when he actually known the fact.

Attesting witness:

Attesting witness is a person who, in presence of executants of

document, puts his signature of mark on it after seeing that executants or
someone by executant’s direction has signed or affixed his mark to it.

“The attestation ensures that there is no fraud or other vitiating

circumstances in the execution of the document.

Provisions:

There are two types of provisions:

 (1) Default provisions:

Default provision is a temporary provision. Those provisions which can

be changed are called default provisions. If no mandatory provisions exist
then default provision will be applied.

 (2) Mandatory provision:

Mandatory provision is necessary provision. Those provisions which

can’t be changed, called mandatory provision.

Online registration and attestation:

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Online registration and attestation is allowed but not through transfer of

property act. For online registration and attestation there is a separate
ordinance, called ETO (Electronic transaction ordinance).

Implementation of transfer of property act:

To implement transfer of property act there should be;

 Contract,
 Attestation and
 Registration.

Maximalist:

Maximalists are those who go for regularization of law.

Minimalist:

Minimalists are those who for de-regularization of law.

Section 5: Transfer of property act:

Def; According to this section transfer of property means an act by

which a living person conveys a property, in present or in future. To one or
more other living persons or to himself and one or more other living persons
and to transfer property is to per per such act.

In this section living persons means physical persons or living persons

includes a company or association or a body of individuals whether
incorporated or not. All living persons can transfer his property to another as
well as to himself.

The word present and future deals with the word convey not with
property, because future property can’t transfer.

Common practice is that there s no house exists but it transfer to

another. This not the transfer of property it is called agreement to sell.
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A person can only transfer legal not equitable title.

A present property can transfer in future because according to the

definition of transfer of property to convey property in present or in future.

Section 6: What may transfer?

Property of any kind may be transferred, except as otherwise provided

by this act or by any other law.

 When a heir are in hope or expectation of succeeding the property

due the death of his father or any other relatives or due to any
another natural way, so it can’t be transfer.

For example:

Mr. B is a son of Mr. A. So Mr. B cannot transfer the property to Mr.

C, in hope that when my father died the property will automatically transfer
to me.

(2). A of re-entry for breach of a condition or an agreement cannot be

transfer to anyone except the owner of the property affected thereby.

(3). An easement cannot be transferred apart from the dominant heritage.

Example:

Mr. A is a owner of a property. He transfers his property to Mr. C and

keep the easement right with itself. So it is a invalid transfer of property.

(4). An interest in property restricted in its enjoyment to the owner

personally cannot be transferred by him.

Example:

Mr. A rent a car to Mr. B without any compensation. So Mr. B cannot

transfer Mr. A,s car to another without compensation because it is a
specifically for B.

(5). A right to a future maintenance in whatsoever manner arising, secured

or determined cannot be transferred.
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(6). A mere right to sue cannot be transferred.

It means that right to sue with property can transfer.

(7). A public officer cannot be transferred, nor can the salary of a public
officer , whether before or after it has become payable.

(8). Stipends which is given to the military, naval, air force and civil
pensioners of the Govt and political pensions cannot be transferred.

(9). No transfer can be made:

 In so far as it is opposed to the nature of the interest affected thereby,

or
 For an unlawful consideration or
 To a person legally disqualified to be a transferee.

(10).

 A tenant cannot transfer his right of tenancy if there is some

restriction made in agreement,
 A farmer cannot transfer, when there is a default in land in paying
revenue,
 The lease of a property which is under the management of the court
cannot transferred.

Section # 7 . who may transfer ?

A person who is competent to make a contract can transfer is
property.

Section 8: Operation of transfer:

When the property is transferring everything at the time of transfer will

also be transferred which are related to that property unless not specifically
not mention.
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Generally a deed is written for transfer and everything were mentioned

in it and after that some disputes arise regarding this which is not mention so
section 8 will be applied and section 8 said;

 Where the property is land easement future rents, profits and all
things attached to earth will also be transfer.
 Where the property is machinery which attach to earth, all its
movable parts will transfer with it.
 Where the property is house, easement, future real, looks, doors,
windows and other things attach for permanent are also transfer
with house.
 Where the property is money but become actionable claim will be
transferred.
 Simply all the right will transfer to the buyer which was
previously available to the seller.

Section 9: Oral transfer:

An oral transfer can be made in every case in which writing is not

expressly required by law.

Property interest?

Interest means “right”.

interest

possession remainder reversion

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 Interest in possession :
Means immediately transfer of property to someone.
For example :
A transfer his property to B immediately. Here B have interest in
possession .
 Interest in remainder:
Mr. A transfer his property to Mr. B for B,s lifer and after the death
of B will transfer to c. here c have interest in remainder.
 Interest in reversion:
Mr. A transfer his property to B for B,s life the will transfer to C for
C,s life. Here the interest of A is reversion.

Interest may be vest or contingent: vested means immediately transfer,

while where there is a specific condition but uncertain it is called contingent
interest.