The rules and regulations of transferring property were defined few centuries back. But in India, the Transfer of Property Act, 1882 is been followed religiously. This act has defined every aspect of ‘Transfer of Property’ in detail. Learning from the chapter ‘Real Estate Law, Practice and Procedures’ from the book ‘Various Laws Governing Real Estate Transaction’, we have tried to elaborate the Act in layman’s language.
This Act lays down the general principles of realty, like part-performance and has provisions for dealing with property through sale, exchange, mortgage, lease, lien and gift. A person acquiring immovable property or any share/interest in it is presumed to have notice of the title of any other person who was in actual possession of such property. 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 manner prescribed by any law for the time being in force. A transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property. A transfer of property may be made without writing.
The definition ‘Transfer of Property’ written in books, says transfer of property means an act by which a living person conveys 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 perform such act. Living persons includes a company or association or body of individuals, whether incorporated or not, (Section 5)
Properties, which cannot be transferred
- The chance of an heir-apparent succeeding to an estate, the chance of relation obtaining a legacy on the death of kinsman, or any other mere possibility of a like nature, cannot be transferred.
- A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone expect the owner of the property affected thereby.
- An easement cannot be transferred apart from the dominant heritage.
- An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
- A mere right to sue cannot be transferred.
- A public office cannot be transferred, nor can the salary of public officer, whether before or after it has become payable.
- Stipends allowed to military, naval, air-force and civil pensioners of the government and political pensions cannot be transferred.
- Any transfer for an unlawful object or for a unlawful consideration within the meaning of Section 23 of the Indian Contract Act, 1872 is illegal and hence void.
- A tenant having a non-transferable right of occupancy.
- An estate in respect of which default has been made in paying revenue
- The lease of an estate under the management of a Court of Wards to assign his/her interest as such tenant, farmer or lessee.
- A right to future maintenance, in whatsoever manner arising, secure XXX determined, cannot be transferred.