1. Short title
19. Vested interest
53-A Part Performance
54. “Sale” defined
104. Power to make rules
105. Lease Defined
107. Lease how made
112. Waiver of forfeiture
118. “Exchange” defined
121. Exchange of money
122. “Gift” defined
127. Onerous gifts
128. Universal donee
134. Mortgaged debt
(No. IV of 1882
(As amended up-to-date)
An Act to amend the law relating to the Transfer of Property by act of parties.
Preamble- Whereas it is expedient to define and amend certain parts of the law relating to the transfer of property by act of the parties; it is hereby enacted as follows:
1. Short title - This Act may be called the Transfer of Property Act, 1882.
Commencement- It shall come into force on the first day of July,1882.
Extent - It extends, in the first instance, to the whole of India except the territories which, immediately before the Ist November, 19567,were comprised in Part B states or in the States of Bombay, Punjab and Delhi.
But this Act or any part thereof may by notification in the Official Gazette, be extended to the whole or any part of the said territories by the State Government concerned.
And any State Government may, ”from time-to-time, by notification in the Official Gazette, exempt, either retrospectively or prospectively ,any part of the territories administered by such State Government from all or any of the following provisions, namely:
Section 54,Paragraphs 2,3,59,107 and 123.
Notwithstanding anything in the foregoing part of the section, Section 51,Paragraphs, 2,3,59,107,123 shall not extend or be extended to any district or tract or country for the time being excluded from the operation of the Indian Registration Act,1908(16 of 1908),under the power conferred by the first section of that Act, or otherwise.
2. Repeal of Acts.-In the territories to which this Act extends for the time being, the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect-
Saving of certain enactments, incidents, rights, liabilities, etc.-(a) The provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or
(d) save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a court of competent jurisdiction; and nothing in the Second Chapter of this Act shall be deemed to affect any rule of Mohammedan Law.
“Immovable property” does not include standing timber, growing crops, or grass;
“Attested” .in relation to an instrument means, and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant signor affix his mark to the instrument, or has seen some other persons sign the instrument in the presence and by the direction of the executant, or has were waived from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom, has signed the instrument in the presence of the exe4cutant;but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
“Registered” means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents.
“Attached to the earth means-
(a) rooted in the earth, as in the case of trees or shrubs;
(b) imbedded in the earth, as in the cases of walls or building; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
“Actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be exist3ent, accruing, conditional or contingent;
“ A person said to have” notice of a fact when- he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I - Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any personal acquiring such property or any part, or share or interest in such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section(2) of Section 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired; or of the property wherein a share or interest is being acquired, is situated:
(1) the instrument has been registered and its registration completed in the
manner prescribed by the Indian Registration Act, 1908,and the rules made thereunder.
(2) the instrument or memorandum has been duly entered or filed, as the case
may be, in books kept under Section 21 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates
have been correctly entered in the indexes kept under Section 55 of that Act.
Explanation II - Any person acquiring any immovable property or any share or interest in such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.- A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is maternal:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.
And Section 54,Paragraphs 2,3,59,107 and 123 shall be read as supplemental to the Indian Registration Act, 1908.
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES.
(A) Transfer of Property, whether movable or immovable
5. “Transfer of Property” defined.- In the following section “transfer of property” means an act by which a living person conveys property, in present or in future, to one of 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.
(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
(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.
(dd) 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, naval, air force and civil pensioners of the 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) for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be a transferee.
(i) Nothing in this section shall be deemed to authorize 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 in the lessee of an estate, under the management of a Court of Wards to assign his interest as such tenant, farmer or lessee.
7. Persons competent to transfer.- Every person competent to contract and entitled to transferable property, or authorized 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.
8. Operation of transfer- Unless different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incident thereof.
Such incidents include where the property is land, the easement annexed thereto, the rents and profits thereof accruing after the transfer and all things attached to the earth;
And ,where the property is machinery attached to the earth, the movable parts thereof;
And, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all the other things provided for permanent use therewith;
And, where the property is a debt or other actionable claim, the securities therefor except where they are also for other debts or claims not transferred to the transferee, but not arrears of interest accrued before the transfer;
And, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
10. Condition restraining alienation-Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting void, except in the case of lease where this condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman(not being a Hindu, Mohammedan or Buddhist) so that she shall not have power during her marriage to transfer or charge the same for her beneficial interest therein.
11. Restriction repugnant to interest created- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transfer or may have to enforce such direction or any remedy which he may have in respect of a breach thereof.
12. Condition making interest determinable on insolvency or attempted alienation.-When property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavoring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.
13. Transfer for benefit of unborn person - Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect unless it extends to the whole of the remaining interest of the transferor in the property.
Illustration.- A transfers property of which he is the owner, to B. in trust for A and his intended wife successively for their lives, and after the death of the survivor for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.
14. Rule against perpetuity.-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.
15. Transfer to a class, some of which come under Section 13 & 14.- If, on a transfer of property, an interest therein is created for the benefit of a class of person with regard to some of whom such interest fails by reason of any of the rules contained in Sections 13 and 14,such interest fails in regard to those persons only and not in regard to the whole class.
16. Transfer to take effect on failure of prior interest.- Where, by reason of any of the rules contained in Sections 13 & 14 an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.
17. Direction for accumulation.-(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than-
(a) the life of the transferor, or
(b) a period of eighteen years from the date of the transfer,
such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last mentioned period of the property and the income thereto shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any direction for accumulation for the purpose of-
(1) the payment of the debts of the transferor or any other person taking any interest under the transfer, or
(ii) the provision of portions for children or remoter issue of the
transferor or of any other person taking any interest under the transfer, or
(iii) the preservation or maintenance of the property transferred; and
such direction maybe made accordingly.
18. Transfer in perpetuity for the benefit of public.- The restriction in Sections 14,16 and 17 shall not apply in case of a transfer of property for the benefit of the public in the advancement of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind.
19. Vested interest.-Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith, or on happening of an event which must happen, such interest is vested unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation.- An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed; or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen, the interest shall pass to another person..
20. When unborn person acquires vested interest on transfer for his benefit.-Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.
21. Contingent interest.-Where on a transfer of property, an interest therein created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain even shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest in the former case, on the happening of the event becomes impossible.
Exception.-Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.
22. Transfer to members of a class who attain a particular age.- Where, on a transfer of property, an interest therein is created in favour of such members only of a class, as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.
23. Transfer contingent on happening of specified uncertain event.-Where, on a transfer of property, an interest therein is to accrue to a specified person, if a specified uncertain even shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as the intermediate or precedent interest ceases to exist.
24. Transfer to such of certain persons as survive at some period not specified-Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases two exist, unless a contrary intention appears from the terms of transfer.
Illustration.-A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the tiffs of B. D survives B. At B’s death the property passes to D.
25. Conditional transfer.-An interest created on a transfer of property and dependent upon a condition fails, if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.
Illustrations.- (a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.
(b) A gives Rs.500 to B on condition that he shall marry A’s daughter C. At
the date of the transfer, C wad dead. The transfer is void.
(c) A transferred Rs.500 to B on condition that he shall murder C. The transfer is void.
(d) A transfers Rs.500 to his niece C is she will desert her husband. The transfer is void.
26. Fulfilment of condition precedent.-Where the terms of a transfer of property- impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.
Illustrations.-(a) A transfers Rs.5000 to B on condition that he shall marry with the consent of c, D, and E.E dies. B marries with the consent of C and D.B is deemed to have fulfilled to condition.
(b) A transfers Rs.5,000 to B on condition that he shall marry with the consent
Of C,D and E.B marries without the consent of C,D and E, but obtain their consent after the marriage. B has not fulfilled the condition.
27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition.-Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner comtemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails ill that manner.
Illustrations.- (a) A transfers Rs.500 to B on condition that he shall execute a certain lease within three months, after A’s death, and, if he should neglect to do so, to C,B dies in A’s lifetime. The disposition in favour of c takes effect.
(b) A transfers property to his wife; but, incase she should die in his lifetime, transfers to B that which he had transferred to her. A and his wife perish together under circumstances which made it impossible to prove that she died before him. The disposition in favour of B does not take effect.