Vande Matram! Welcome to the series of Transfer of Property
Law. Since the civilisation of humans, the concept of property is present and
the laws related to it are evolving day by day.
In previous blog, we discussed about the mode and the test
regarding transfer of property. Let’s discuss about the essential components of
the valid transfer of property.
Discuss the essential components of the valid transfer of
property.
The transfer of property Act, 1882 provides for the
transfers, relating to immovable property and it also lays down the principles
relating to the transfer of property regarding what constitutes a transfer and
the conditions attached to it. It was observed by the Supreme Court that in
general, the transfer of property means passing of entire bundle of rights i.e.
ownership from the transferor to transferee or there may be the transfer of
only some of the rights i.e. partial interest.
According to the Act, “transfer of property” is defined as
an act in which a person conveys the property to one or more living persons or
himself and one or more other persons. The transfer may be done in the present
or for the future and the term “living person” includes companies, body
corporate, an association of persons whether incorporated in India or not. The
property transferred can be of any type either movable or immovable. The
definition is provided in detail in Section 5 of the Act.
Essentials of a valid transfer of property:
To constitute a valid transfer it has to fulfill the
following conditions:
1) Transfer must be between two living persons:
Both the transferor and transferee must be living at the
date of transfer. The property has to be conveyed from one living person to
another. If the new title or interest is not created in favor of the transferee
then the property is not conveyed and is not regarded as a transfer of
property.
In case of Harish Chandra v. Chandrashekhar, 1977, it
was held by the court that a release deed is a conveyance and hence it is a
transfer of property.
2) The property must be transferable:
Section 6 of the Transfer of the Property Act, 1882 provides
for the exceptional types of property whose transfer is forbidden by the law.
These properties include Spes succcessionis i.e. a chance of succession,
Right to re-entry, Easement, Restricted interest, Maintenance, Mere right to sue,
Public office, Pensions, etc.
In R. Rajegowda v. H. R. Shankar Gowda (2006), it was
held that a person having life interest in property cannot bequeath it by
executing a will.
In Sundariya Bai Chaudhary v. Union of India, 2008
the court held that the family pension of the deceased was not in the nature of
an estate and it was not transferable so it could not be bequeathed by a will.
The court observed that other benefits like provident fund, gratuity, and extra
remunerations would be included in the category of an estate.
3) The transfer should not oppose to nature of interest:
There are certain things which are known as “res communes”,
these things are in their natural form and they do not belong to anyone, like,
air, water, sea, light, etc., it is not possible to hold and possess these
things separately so if anyone tries to transfer such a thing it would be
opposed to its nature.
4) The consideration or the object must be lawful:
To be a valid transfer the consideration and the object must
be lawful. As per Section 23 of the Contract Act the consideration or the
object is unlawful if It is forbidden by law
a) if it defeats the provisions of any law,
b) if the object or consideration of any agreement is made
for fraudulent purposes.
c) If the agreement is made concerning harm to any person or
his property.
d) If the agreement which has been entered into is immoral.
e) If the agreement is against public policy.
5) Persons competent to transfer:
Section 7 of the TP Act, provides that if the person is
competent to contract then that person is competent to transfer the property
either wholly or in part, and either absolutely or conditionally, in the manner
which has been permitted by law. Such competency for transfer of property is
provided in the Section 11 of the Contract Act.
In case of Mallikarjun v. Mareppa 2008, a person brought
a property in the name of his minor son and later sold it again while the son
was still a minor. Court’s permission under Section 8 of the Hindu Minority and
Guardianship Act 1956 was necessary in this case but was not taken. The
provision was mandatory so the sale was held to be void.
Sadiq Ali Khan v. Jaikishore 1928– In this case the
Privy Council observed that a deed executed by a minor was null and void.
Principle of estoppel cannot be applied to a minor. A minor is not competent to
transfer but transfer made to a minor is valid and legal.
Amina Bibi v. Syed Yousuf, 1922- The Allahabad High
Court held that a contract made by a lunatic is void under section 11 of the
Indian Contract Act. The transfer of his own property by him is also void.
K. Kamama v. Appana- In this case it was held that
under section 11 of Hindu Minority and Guardianship Act, a de facto guardian is
merely a manager and cannot dispose of the property of a minor. Such sale would
be invalid.
Chittu Singh v. Chatan Singh, 1923- It was held that
a person who has no right at all to have possession has no right to make any
valid transfer. The power of such person cannot exceed the power of the person
who has appointed him.
6) The transfer must be made in the manner and the form
required by the Act:
Section 9 of the Transfer of Property Act states that the
transfer of property can be carried out without a written instrument where
writing is not expressly necessary under the law. Sale deed, Mortgage, Transfer
of actionable claim, Exchange, relinquishment, gift deed, etc. involving immovable
property of valuation, not less than Rs. 100 must be registered.
Conclusion:
If above stated essential requirements are not fulfilled
then the transfer will not be considered a valid one or it can be declared
void.
Thanks for reading till the end. Note down all the important
points for your preparation and Best of Luck for your exams! Please share this
blog.
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List of references:
Essentials of a valid transfer – Transfer of Property Act, 1882
Essentials of a Valid Transfer Under Transfer of Property Act
