GENERAL PRINCIPLES OF TRANSFER OF PROPERTY :

The Transfer of Property Act came into existence in the year 1882.
It applies only to transfer by the act of parties and not by operation of law.
This Act deals with a transfer of property inter vivos, that is, a transfer between
living persons.
It contains the transfer of both movable and immovable property but a
major portion of the enactment is applicable to the transfers of immovable
properties only.
General Principles of Transfer of Property are as follows:
1.The property must be transferable. (Section 6):
It specifically speaks about, what may be transferred. Property of any kind may
be transferred, except as otherwise provided by this act or even by any other law
for time being in force.
2.Restrains on Alienation of Property. (Section 10):
Section 10 of the Act states that any restriction or limitation that ‘absolutely’
restrains the buyer or transferee from alienating the property is a void condition.
But there exist two exceptions to this rule which are:
a. In cases of lease where a restraint is for the benefit of the lessor or the estate
leased out.
b. Where the property is transferred for the benefit of a woman who is not a
Hindu, Muslim or a Buddhist, with a condition that she doesn’t have the power
during her marriage to transfer or create any encumbrance in the sale of
property transferred to her. Here, it must be taken into consideration that
Section 10 only bars an absolute restraint on alienation whereas a partial
restraint is permissible.
3.Transfer to an Unborn Person (Section 13):
Section 13 of the Transfer of Property Act, 1882 says that a transfer cannot be
directly made to an unborn person. The interest in favour of an unborn person
must always be preceded by a prior interest created in favour of a living
person. The transfer to an unborn person must be absolute and there should be
no further transfer from him to any other person.
4.Rule against Perpetuity (Section 14):
No transfer of property can operate to create an interest which is to take effect
after the life-time of one or more persons living at the date of such transfer, and
the minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the interest created is to belong.
5.Vested and Contingent Interest (Section 19 & 21) :
Section 19 of the Transfer of Property Act, 1882 states that it is an interest
which is created in favour of a person where time is not specified or a condition
of the happening of a specified certain event. The person having the vested
interest does not get the possession of that property but has the expectancy to
receive it upon happening of a specified certain event.
Section 21 of the Transfer of Property Act, 1882 states that it is an interest
which is created in favour of a person on a condition of the happening of a
specified uncertain event. The person having the contingent interest does not get
the possession of that property but has the expectancy to receive it upon
happening of that event but will not receive the property if the event does not
happen as the condition is not fulfilled.
6.Conditional Transfer (Section 25) :
It means that any transfer that happens on the fulfillment of a condition that is
imposed on the other party for the transfer of property.
7.Doctrine of Priority (Section 48) :
This rule is based on the maxim “Qui prior est tempore potior est jure” which
means that “he who is prior in time is better in law, meaning that the subsequent
dealings by the transferor of the same property cannot prejudice the rights of the
transferee of the same property (prior transferee)”.
When a transferor transfers the same property in favour of several transferees,
each transferee will take the property with the rights of the former transferee. It
is also based upon the principle that no man can transfer the title other than
which he is entitled to.
8.Transfer by Ostensible owner (Section 41):
Transfer by ostensible owner : “Where, with the consent, express or implied, of
the persons interested in immoveable property, a person is the ostensible owner
of such property and transfers the same for consideration, the transfer shall not
be voidable on the ground that the transferor was not authorised to make it:
provided that the transferee, after taking reasonable care to ascertain that the
transferor had power to make the transfer, has acted in good faith.”
Section 41 says that, following are the essential which shall keep into mind
these are:
A.There is a transfer of immoveable property.
B.Transfer is by Ostensible Owner.
C.Consent must be obtained from Real Owner and it may be express or implied.
D.The transfer is for Consideration.
E.The transferee has acted in good faith.
F.The transferee (Third party) has exercised reasonable care in finding out the
power of the transferor to make the transfer.
9.Rule of Estoppel (Section 43):
The doctrine of feeding the grant by estoppel is based on the maxim ‘nemo dat
quod non habet’ which implies that ‘no one can give to another, which he
himself does not possess’.
Section 43 of the Transfer of Property Act lays down “where a person
fraudulently or erroneously represents that he is authorized to transfer certain
immovable property and professes to transfer such property for consideration,
such transfer shall at the option of the transferee, operate on any interest which
the transferor may acquire in such property at any time during which the
contract of transfer subsists”.
10.Doctrine of lis Pendence (Section 52):
During the pendency in any Court having authority within the limits of India or
established beyond such limits by the Central Government, of any suit or
proceeding which is not collusive and in which any right to immovable property
is directly and specifically in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or proceeding so as to affect the
rights of any other party thereto under any decree or order which may be made
therein, except under the authority of the court and on such terms as it may
impose.
Essentials of doctrine of Lis Pendence:
A.Pendency of suit or proceeding.
B.Pending in the court of competent jurisdiction.
C.There is a right involved which is of immovable property.
D.Suit or proceeding must not be collusive.
E.Property in dispute must be transferred.
F.Transfer affects the right of other party.
Case Law : Bellany vs. Sabine
In this English case, it was held that, if there is any dispute regarding any
property which is immovable one, in such situation property cannot
be transferred when the litigation on that property is pending in the court of
law.
11.Fraudulent Transfer (Section 53)
In order to attract this section, there must be a transfer. The transfer must be of
immovable property. The transfer must be a real one which creates a vested title
in favour of the third party. Fictitious transfers do not attract this section. The
fictitious transfer is where the transferor remains the real owner of the
property. Hence, in order to set aside the transfer under section 53, it has to be
proved that the transfer was a real one and not a sham one.
12.Rule of Part Performance (Section 53A):
Doctrine of Part Performance prevents a transferor from taking any advantage
on account of non registration of documents, is that the transferee has
performed his part of the contract and in pursuance to that performance; the
transferee has taken possession of some part of the property.
Case Law : D.S. Parvarthamma v. A. Srinivasan
In this case it was held that, where a person is already in possession of a
property prior to contract, some act of part-performance done in furtherance of
the contract would reap benefit to the transferee.
These are the general principles of transfer of property.