Social engagement, exchange, and transfer are mandated by the very nature of society. Movable or immovable property is transferred from one person to another in a variety of scenarios, under a variety of conditions, and for a variety of reasons. The transfer could be made in the form of a gift, an inheritance, or a purchase made at full price.
Sales of Goods Act, 1930 applies when movable property is transferred inter vivos (between two living people). The Transfer of Property Act, 1882 is applicable when an immovable property is transferred from one living individual to another. The law of succession will be used if property is transferred from a deceased person to a live person or persons.
Real property has a far broader definition. It also covers any intangible right regarded as a source or component of income or wealth, in addition to money and other tangible objects of value. It is a man’s exclusive right to and interest in his own lands and personal property. As long as he doesn’t use those items in any way that is against the law, he has the total freedom to enjoy and dispose of those things whatever he pleases.
An examination of the Transfer of Property Act, 1882’s reach and its relevance to both movable and immovable property in India will be the focus of the research paper. Essentially, it would aim to support or refute the hypothesis.
Property And Interest In Property
Although the term “property” has not been defined by the legislation, it is used in the Transfer of Property Act, 1882, in its broadest and most general legal sense. Property of any kind may be transferred, according to Section 6. As a result, a right to re-convey land is property, just like an actionable claim is. Anything that is the object of ownership is referred to as property, which also includes dominium, the right to own something, and partial ownership.
Immovable Property:
“Immovable Property does not include standing timber, growing crops, or grass,” the Act adds. Immovable property is defined as follows in the General Clauses Act: “Immovable property shall comprise land, benefits arising from land, and items attached to earth, or permanently fastened to anything attached to earth.” Both an equity of redemption and the mortgagee’s interest in the mortgaged real estate are considered to be movable property.
There are many conflicting rulings regarding whether a mortgage debt is immovable property, but since Act 2 of 1900 excluded mortgage debt from the definition of an actionable claim, it appears that a mortgage debt is immovable property for all practical purposes, even though it is treated as movable for the purposes of attachment.
A mortgage is a transfer of an interest in real property, according to a full bench of the Rangoon High Court, and a lawsuit to enforce a mortgage is a lawsuit for real property under the Letters Patent of the Chartered High Courts. Standing timbers are classified as trees rather than immovable property because of this. Fruit-bearing trees, on the other hand, are not standing timbers and can be categorized as immovable property because of this.
Movable Property:
The General Clauses Act of 1897 defined movable property as “property of every sort except immovable property,” which is absent from the Transfer of Property Act of 1882. Movable property is defined by the Registration Act of 1908 as all types of property, excluding immovable property but includes standing timber, growing crops, and grass.
Interest In Property
The numerous rights and interests may be vested in different persons, such as a mortgagee and a mortgagee, a lessor and a lessee, or a tenant for life, as ownership consists of a bundle of rights. An absolute ownership is an accumulation of individual rights, including the freedom to use the land as one wishes and the right to own it. According to the Transfer of Property Act, an interest in property is any subordinate rights that together constitute absolute ownership. However, the difference between the terms “interest” and “absolute ownership” is not made in section 58.
Deed of Appointment:
A transfer is not necessarily contractual, and includes a deed of appointment. Section 5 of the Transfer of Property Act does not require that the ‘living person’ who conveys should necessarily be the same person as who owns, or owned, the property conveyed. All that is required is that there should be an act of conveyance by some living person; under the section there may be a transfer by a person exercising powers over the property of another. Thus, where the done of power of appointment, having power to appoint a beneficial interest in the property, exercises that power, it would amount to a transfer.
Meaning Of 'Transfer'
The word ‘transfer’ is defined with reference to the word ‘convey’. This word in English law in its narrower and more usual sense refers to the transfer of an estate in land; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The word ‘convey’ in section 5 of the Transfer of Property Act is used in the wider sense referred to above. Transferor must have an interest in the property. A lease comes within the meaning of the word ‘transfer’.
A transfer of property does not exclude property situated outside India or the territories where Transfer of Property Act, 1882 does not apply. If the transfer is effecte where the Transfer of Property Act, 1882 is in force, the right of the parties are to be determined by the Court under the Transfer of Property Act.
Compromise:
A compromise of doubtful rights is not a transfer, but based on assumption that there was an antecedent title of some kind in the parties which the agreement acknowledged and defined. The position would be different if such a compromise also transferred properties to a person who has neither a pre-existing title, nor a claim to such title.
Will:
Will operates from the death of testator. Transfer of shares or interest in a co-operative society to the nominee of its member operating on his death would also be executed like transfers by will. Where the beneficiary is not a living person, the expression used is the creation of an interest in an unborn person contemplated under section 13 of the Transfer Property Act, 1882. A Muslim person executed a document styled as ‘will”. By virtue of the executed document he delivered certain properties amongst his daughter and nephew in his life time and gave possession to person named. It was held that it was a conveyance and not a will, even though it described the beneficiaries as heirs. Not being a registered document, it was invalid.
Different Ways In Which Property Can Be Transferred
Sale of real estate: According to Chapter III of the Act, the transfer of ownership in exchange for a sum of money that has been paid, promised, or partially paid and partially promised is considered to be a sale of real estate. A contract for the sale of immovable property specifies the conditions under which the parties have agreed to sell the property. Delivery of tangible immovable property occurs when the seller hands the property over to the buyer or another individual at his direction.
Immovable property mortgage: A mortgage is an instrument used to secure a loan and is defined by Section 58 of Chapter IV. The term “mortgagor” refers to the transferor, and “mortgagee” to the transferee.
Immovable property leases: According to Chapter V, a lease of immovable property is the transfer of the right to use the property for a specific period of time in exchange for money, a service, a share of the crop, or any other valuable thing that is provided on a regular basis or as otherwise agreed upon by the parties to the lease.
Exchange of property: In accordance with Chapter VI, a transaction is referred to as a “exchange” when two parties voluntarily exchange the ownership of one thing for that of another, provided that neither of the items are purchased with money alone. When an exchange is complete, property can only be transferred in the ways specified for such transfers.
Gift of Immovable Property: The Act’s Chapter VII addresses the gifting of property. A gift is therefore the voluntary and uncompensated transfer of existing mobile or immovable property made by one person—the donor—to another—the donee—and accepted by or on behalf of the donee. According to the Act, state governments may exempt provisions under Sections 54, paragraphs 2 and 3, 107, and 123 by publishing a notice in the official gazette; however, this exemption cannot apply to any area of the country that is not subject to the Indian Registration Act of 1908’s requirements.
The primacy of rights created by transfers is a topic that the Act addresses in detail. It specifies that when someone attempts to create rights in or over the same immovable property by transfer at various times, such rights will predominate unless a particular agreement or reservation that binds the earlier transferees is made.
When the property is in dispute and any right to immovable property is in question, the property cannot be transferred while the case is pending in any court with jurisdiction within the boundaries of India, excluding the State of Jammu and Kashmir, of any suit or proceeding that is not collusive and in which any right to immovable property is directly and specifically in question.
For these purposes, the commencement of a suit or proceeding is deemed to be the filing of the complaint or the institution of the action in a court of competent jurisdiction, and the pendency is deemed to continue until the suit or proceeding has been resolved by a final decree or order, and full satisfaction or discharge of such decree or order has been attained, or has become unattainable due to the passage of any applicable statute of limitations.
Conclusion
The principal topic covered by the Transfer of Property Act of 1882 is the transfer of immovable property. Except in limited circumstances, the Act does not apply to transfers of property made by operation of law, including sales made pursuant to court orders, forfeitures, auctions, and the transfer of title under other statutes like the Hindu Succession Act. As a result, the Act does not apply to will-based transfers or inheritance.
The researcher has therefore concluded that the hypothesis is invalid. Although not exclusively concerned with immovable property, the Transfer of Property Act primarily addresses the transfer of immovable property. The general provisions of the Act that apply to both mobile and immovable property are stated in Sections 1-37.
There are 8 chapters made up of the 137 sections that make up the entire document. It’s interesting that the Act doesn’t define “What is a transfer of property” anywhere. However, Section 5 does define “transfer” as a stand-alone term. The Act covers a number of property transfer methods, while it does not contain regulations for every type of transfer that is now legal. The absence of the word “consolidate” from the Act’s Preamble makes it clear that it does not even aspire to be a comprehensive law.
The Transfer of Property Act, 1882 is intended to change or control the law governing the transfer of property by the acts of the parties, according to the Act’s Preamble. The Act establishes a precise, organised, and consistent legal framework for the transfer of immovable property. Since it is a statute that applies to transfers that happen in furtherance of a contract, the Act completes the Code of Contract.
