Transfer of Property U/S 5 of Transfer of property act BY AKSHIT GUPTA @LEXCLIQ

A transfer of property is defined as in section 5 of Transfer of property act,1882. It refers to an act done by living person transferring property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individual whether incorporated or not.  

Illustration: 

A is the grandson of G and A owns three estates of which he wants to transfer one estate in the name of grandpa D but this transfer won’t be held liable because the transfer of property is done between two living persons.  

  • Immovable property: According to the General clauses act, 1897 immovable property includes land, benefit arising out of land, things attached to the land. 
  • Mortgage debt: In peruma animal vs. Peruma Naicker, Wallis C.J held that before 1900 the mortgage could be transferred as actionable claims but now it can’t be. The legislature intended that the mortgage debt should be transferred in the name of mortgagee’s interest through a registered instrument.  
  • Instrument: According to the transfer of property act, 1882 instrument refers to a non-testamentary instrument. It acts as evidence of transfer of property between living parties.  
  • Attested: It refers to a formal document signed by a witness. The transferors of the property are known as the executant. The amendment act was introduced in 1926 which mentioned that there must be two mor more witness in presence of executant as witness not necessarily at same place and time but they can’t be the party to transferors 
  • Registered: Procedure of registration: 
  • The description of the property should be mentioned. 
  • Avoid fraud 
  • Deeds should be presented by a competent person. 
  • The property must be registered in the same territory where the registered office is situated 
  • Actionable claims: A claim to any debt other than the debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in a movable property not in possession, either actual, or constructive possession of the claimant which the civil courts recognize as affording grounded or relief, whether such debt or beneficial interest be existent, accusing, conditional or contingent.  

Illustration: A has given his house to B for rent but B didn’t pay that rent because it would amount to actionable claim 

  • Notice: Notice refers to knowledge of the fact. The person has the knowledge of facts about various circumstances. According to the transfer of property act, 1882 it prescribed two kinds of notices 

Actual or implied notice: The person having actual knowledge about a particular fact. 

Constructive Notice: the knowledge of the fact is obtained through circumstances. 

Essential elements: 

  • The transfer must be between living or juristic person 
  • Transfer through conveyance 
  • The property must be transferrable 
  • Must be done by competent person 
  • Must be in prescribed form 
  • Sale of movable property value more than 100 rupees  
  • Sale of intangible must be in written form 
  • All mortgages which value more than 100 rupees should be in written form 
  • The transfer of actionable claims must be in written form 
  • A gift in a form of immovable property 
  • Lease of immovable property exceedingly more than one year 
  • Property can’t be transferred to an unborn child 
  • Under section 25 of transfer of property act,1882 the property can be transferred complying to the condition mentioned. If the condition becomes impossible, forbidden by law, opposed to public policy or is immoral the transfer would be held void.
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