Intellectual Property: Registration and Effects
by: Adv. Kishan Dutt Kalaskar 2023-03-30 16:34:46
by: Adv. Kishan Dutt Kalaskar 2023-03-30 16:34:46
by: Adv. Kishan Dutt Kalaskar 2023-03-30 16:20:33
by: Adv. Kishan Dutt Kalaskar 2023-02-28 18:47:16
by: Adv. Kishan Dutt Kalaskar 2023-02-28 18:10:41
by: Adv. Kishan Dutt Kalaskar 2023-02-03 22:32:13
by: Admin 2023-02-01 16:45:35
Intellectual Property: Registration and Effects
Clearance to get a Passport and Visa during the pendency of Criminal Cases
Summary of the Payment and Settlement System Act, 2007
Procedure to track court cases online
Key Features of Union Budget 2023
Top 10 reasons to hire a Civil Lawyer
5 Benefits Of Hiring A Business Lawyer When Starting Your Company
Top 5 Reasons Why You Should Consult A Banking Lawyer
10 Things to Consider Before Hiring an Accident Lawyer
Payment Recovery Process
Analyzing legal and security issues in cyber contracts (E - contracts)
Discharging and Quashing in Criminal Cases
Legal compliances for online shopping sites in India
How to select a Lawyer
Supreme Court Judgments 2022
Maternity Benefit Act 1961, at a Glance
Modes of Recording Accepted by Court
Essential elements of a sale under the Transfer of Property Act
Compensation in Motor Vehicle Accident Cases
Is it important to respond to a summon?
Analysis of Section 18 of Limitation Act, 1963
Fresh period of Limitation
The breakdown of the doctrine of Res-Judicat
Impact Of Supreme Court Ruling
Analysis of Employees Provident Fund and Miscellaneous Provisions Act
How is 'BLACK MAGIC' governed in India
Different Identities of an NDA
Breaking down the requirements of becoming a Public Prosecutor in India.
Mohan Breweries & Distilleries V/s Commercial Tax officer, Madras
Kavita Kanwar Vs. Mrs Pamela Mehta & Ors
Entry into Judiciary: Minimum required Qualifications
Law of Retrenchment
Grounds for refusal of a Trademark Application
Early disposal of pending cases by the High Court
Parminder Kaur V/s State of Punjab
Central Bank of India V/s M/S Maruti Acetylene Co. Ltd.
Goan Real Estate and Construction Ltd. And Anr. V/s Union of India
Raj Kumar V/s Ajay Kumar
Synopsis of the Special Marriage Act in India
Lok Adalat has no jurisdiction to decide a matter on Merits
Significance of a Police Clearance Certificate in a pending Accident Case
Understanding the Digital Rupee
Eligibility of Teachers for Gratuity under the Payment of Gratuity Act, 1972
Dr. M. Kocher V/s Ispita Seal
Smt. Seema Kumar V/s Ashwin Kumar
Leo Francis Xaviour V/s The Principal, Karunya Institute
Nazir Mohamed V/s J. Kamala and Ors.
Addissery Raghavan V/s Cheruvalath Krishnadasan
Himalaya House Co. Ltd. Bombay V/s Chief Controlling Revenue
K. Sivaram V/s P. Satishkmar
Basir Ahmed Sisodia V/s The Income Tax Officer
Burden of Proof
Interest for delayed Payment under Payment of Gratuity Act, 1972 - Need for Change?
How to file a complaint in regards to violation of Cyber Laws
Delayed Justice from Consumer Courts
Can a registered Will be challenged in the Indian Court?
Trademark Infringement - Triple identity test in Trademark
Blockchain Technology in India – II
Manish V/s Nidhi Kakkar
Withdrawal of Mutual Divorce Proceedings
Blockchain Technology in India - I
Unnatural Offences
Surendra Kumar Bhilawe V/s The New India Assurance Company
Seat Vs Venue of Arbitration
D. Velusamy V/s D. Patchaimmal
Standard from of Contract - Legal or Illegal?
Life Insurance Corporation of India V/s Mukesh Poonamchand Shah
MSME Debt Recovery Provisions
Neelam Gupta Vs Mahipal Sharan Gupta
Analysis of Section 11A of Industrial Dispute Act, 1947.
Time Limits & Procedure to approach HC in Civil Cases
The necessity of Gender-Neutral laws in India
Sou. Sandhya Manoj Wankhade V/s Manoj Bhimrao Wankhade
Plea of Adjustment
Filing of Complaints against biased Judges
G. Raj Mallaih and Anr. V/s State of Andhra Pradesh
Zee Entertainment Enterprise Ltd. V/s Suresh Production
Chief Administrator of Huda &Anr. v/s Shakuntala Devi
Permanent Child Custody
Dilution of the statutory protection available to MSMEs
Validity of an Unregistered Sale Agreement
Ambalal Sarabhai Enterprise v/s Ks Infraspace LLP
False and misleading advertisements in India
National Legal Service Authority v/s Union of India and Others
Recovery Procedure in Cheque Bounce Cases
Roxann Sharma V/s Arun Sharma
Ganesh Santa Ram Sirur V/s State Bank of India &Anr.
Recovery Procedure of Consumer Court Cases
Bank Guarantee
M/s M.M.T.C Ltd. & Anr v/s M/s Medchl Chemical & Pharma P
Shailendra Swarup V/s Enforcement Directorate, The Deputy
SunitaTokas v/s New India Insurance Ltd.
Can couples get separated without a divorce?
Scope of Arbitration in India
Appointment of Arbitrators
NRIs right to purchase Property in India
Decriminalization of Dishonour of Cheques: a measure contradictory to its purpose
Paternity leave in India
Regulation of Cryptocurrency in India
How can litigants list their cases online?
Validity of Narco-Analysis in India
Remedies against frivolous cases registered against students by the Police
Procedures involved in a Criminal Trial
Procedured Involved in a Family Court Case
Death Certificate of a missing Person
Accountability of Police
Highlight of important Dishonour of Cheque case laws in 2020
Guidelines to be followed by Registered Medical Practitioners to dispense medicines
Land Mark Judgements on Family Law for the Year 2020
Remedies against harassment by Recovery Agents
Abetment to Suicide
Overview of the Vehicle Scrappage Policy
Rights of husbands in dowry and cruelty-based complaints
Admissibility of E-evidence; Are WhatsApp chats and E-mails admissible in Court?
Triloki Nath Singh V/s Anirudh Singh
Milmet Oftho & Ors. V/s Allergan Inc.
Director of Income Tax II (International Taxation) V/s M/s Samsung Heavy Industries Co. Ltd.
M/s ExL Careers V/s Frankfinn Aviation Services Pvt. Ltd.
The Maharashtra State Cooperative Bank Ltd V/s Babulal Lade & Ors.
Constitutionality of Bandhs
State of Himachal Pradesh V/s A parent of a student of a Medical College & Ors.
Rathnamma & Ors. V/s Sujathamma & Ors.
Ravinder Kaur Grewal V/s Manjit Kaur
Ficus Pax Pvt. Ltd. V/s Union of Indian & Ors.
Commissioner of Income Tax V/s Chandra Sekhar
Analysis of Section 41-A of CRPC, 1973
Judgment: Indian Bank V/s Abs Marine Product Pvt. Ltd.
Kailas & Ors. V/s State of Maharashtra
Sukhedu Das Vs Rita Mukherjee
Witness to a Will
National Insurance Co. Ltd V/s Hindustan Safety Glass Works
Mahalakshmi V/s Bala Venkatram (d) through LR & Anr.
Kajal V/s Jagdish Chand
Shyamal Kumar V/s Sushil Kumar Agarwal
NRI's Power of Attorney
Megha Khandelwal V/s Rajat Khandelwal and Ors.
Is Registration Compulsory under Trademark and Copyright?
Md. Eqbal & Anrs. V/s State of Jharkhand
Types of Will
Employment Contract
Police Clearance Certificate
Validity of Crypto-Currency in India
A. Jayachandra V/s Aneelkaur
Points to be considered before filing an Income Tax Return
Union of India V/s N. K. Shrivasta
Startup under the Government Programme
The procedure for filing a complaint against a Lawyer
Types of Stamp Paper
Satvinder Singh V/s State of Bihar
Sexual Violence laws under the Indian Penal Code
Shreya Singhal V/s Union of India
Division of Assets
Shaleen Kabra V/s Shiwani Kabra
Types of Property
Vasant Kumar V/s Vijaykumari
Personal Injury - Damages
Adultery under the Indian Law
United Commercial Bank & Anr. V/s Deepak Debbarma & others
Intentional Wrongs
Vinay Kumar Mittal & Others V/s Deewan Housing Financial Corporation Limited
How to get a Marriage Certificate?
Mohammed Siddique Vs National Insurance Company Ltd
Pagdi System
The Bonus Act
Frivolous Complaints under the Sexual Harassment Act
Important Income Tax Return Forms and its Due Dates
Garden Leave
How can a Private Complaint be filed?
Key changes to Indian Tax Regulations
Employees Provident Fund
Status of Triple Talaq
Contract Farming & the new ordinances that affect the Farmers
Documents required for filing a Divorce
Section 138, 141 and 142 of the Negotiable Instrument Act 1881
Validity and Enforceability of Click-wrap Agreements
Child Custody under Christian and Parsi Law
Hindu Succession Act
Oppression and Mismanagement
Fraudulent and Invalid Contracts
Developments in Reserve Bank of India
Loan Frauds in India
Penalties associated with Driving
Laws governing a Knife
Medical Negligence and its Compensation
Interim Maintenance under the Domestic Violence Act
Shortcomings of the Consumer Protection Act, 2019
Tougher rules for the E-Commerce Industry
Difficulties faced by men in Family Courts
The consumer is the King in 2020
Illegal Termination of an Employee during Covid-19.
Child Labour Laws in times of Covid-19
Real Estate scenario Post Covid-19
Post Covid-19 Digital Shift of Legal practise
Mutual Consent Divorce through Video Conferencing
59 Chinese Apps banned in India
Litigants and the Lockdown - A Court Perspective
Anticipatory Bail for cases under section 498A of IPC
Brand Protection in times of Covid-19
Title Verification of Immovable Property
The Judiciary during the Pandemic
Termination of an Employee during Covid-19
Drafting of a Will
Criminal Medical Negligence in times of Covid-19
How does Covid-19 affect employers and employees?
Rent deference during the Pandemic
Post Covid-19 digital shift of legal practise
Police Interrogation
Prenuptial Agreements
Void and Voidable Contracts
The Negotiable Instrument Act 1881
Cheque Bounce Notice
Types of Dishonour of Cheques
Intestate Succession
The Stand of Essential Commodities
Trademark Cease and Desist Notice
IT Department Notice
Eviction of a Tenant
Consumer Complaint Legal Notice
Medical Adherence to Environmental Laws
Basic Elements of Transfer of Property Act, 1882
Debt Recovery Notice
Cheque Bounce Notice
Hygiene maintenance in Hospitals and Clinics
Consequences of using a Fake Degree/Certificate
Healthcare Security
Rights of Doctors with respect to Medical Negligence
Importance of Consent
Faulty Machine Aids Medical Negligence
The Special Marriage Act, 1954
Top 2019 judgements by Supreme Court
National Medical Commission Act 2019
Money Laundering
Hindu Undivided Family (HUF)
Child Labour
Endorsement under Negotiable Instrument Act
Quashing of an FIR
Annulment of Marriage
Probate
FAQ's on Trademark
EMI - Equated Monthly Installments
Legal mistakes made by the Start-Up
What is a Stamp Paper?
Sexual Abuse in Shelter Homes
Debt Recovery provisions under the SARFAESI Act
Effective ways to stop Ragging
Transfer of Property Act
Personal Injury Lawyers
Marriage Registration under the Special Marriage Act
Rights of Tenant
Classification of various Collar Jobs
Documents to be submitted for ITR Filing
Illegal Immigrants
Role of lawyers in Corporate Finance
Intestate Succession
Employment of White Collar Employment of White Collar
Domestic Violence
Power of Attorney
Dissolution of Marriage - Christian
Noting And Protest
Hostile Witness
Unfair Trade Practice
All you need to know: Drafting a Legal Notice
Fraudulent and unauthorized transactions at ATM
Is legal documentation important in medical practice?
Why do doctors need to be updated with medical negligence laws?
Personal Data Protection Bill, 2019
Jurisdiction of Consumer Redressal Forums
Does telephonic consultations amount to culpable negligence?
Consumer dispute Redressal Forum in dealing with Medical Negligence
Validity of Notices.
Response to a Legal Notice
Promotion of Medical Products.
Doctors' Bill: Prohibition of Violence & Damage to Property Bill, 2019.
Why less Indemnity cover is risky for Doctors?
Procedure for filing a Notice in India
Format of Legal Notices in India
Citizenship Amendment Act, 2019
Demerger
Legal framework for the Elimination of violence against Women in India
International Day for the Elimination of violence against Women
Family Courts in India
Inheritance Law in India
Rights of Children in India
Virtual Clinic
New Medical Technologies in India
Land Records & Titles
Regulations for firecrackers during Diwali
Legal and Regulatory Regime: Medical Technology
Intellectual Property in Medicine
Consumer Protection Bill, 2019
Artificial Intelligence in healthcare
The Real Estate (Regulation & Development) Act
Warrant and its Types
Joint Custody of Child in India
Limited Liability Partnership (LLP)
Penal Provision on Rash and Negligent Driving
National Company Law Tribunal
Rules to be followed by the Ganpati Mandals
Need to amend CrPC and IPC to increase the conviction rate.
Motor Vehicle Amendment Act, 2019
The Growth of technology Patents in India
Citizenship under the Indian Constitution
Basic Structure of the Indian Constitution
A comparative study of the Indian, UK and the US Constitution
Can the Indian Constitution be Amended?
Overview of the Indian Constitution
All you need to know: Drafting a Legal Notice
Surrogacy (Regulation) Bill, 2019
Overview of The Indian Penal Code
Offences and Prosecution under the Income Tax Act, 1961
The abolishment of Article 370 of the Constitution: One Nation One Flag
Intervention of SC in the Unnao Rape Case
Case of abandoned NRI brides, Supreme Court issues notice to the State
Financial Risk Management
Know more about Equal Remuneration Act, 1976
Procedure to File Complain against Domestic Violence
The IndiGo Promotors Feud
Rajya Sabha passes the Triple Talaq Bill
Gift Deed
More about Contested Divorce
Things to be kept in mind - Dishonor of Cheque
Prison Reforms in India
Consumer Protection ACT, 1986
More about Joint Venture
Delay of Condonation
Points to be Noted for Child Custody to Father
Basic information of Companies
Plastic Money and their Advantage & Disadvantages
Motor Accident Claim Tribunal
Guidelines to protect doctors from frivolous and unjust prosecution
Unjust Compensation - A Doctors Perspective
Misdiagnosis: A Medical Negligence?
Exemption of doctors operating in Emergency Rooms
General Types of Medico-Legal Cases (MLC)
Duty of patient to avoid aiding Medical Negligence
Rights of the Patient
Steps to be taken to avoid Medical Negligence
Liability of Medical Negligence under Consumer Protection Act
Laws that affect Medical Professionals in India
Defense against Medical Negligence Cases
Duties of Doctors
Common types of Medical Negligence
Medical Consent for treatment in India
Regulation for E - Pharmacy in India
Types of Consent for Medical Treatment
Guidelines for Autopsy/ Postmortem in India
Guidelines for the prescription of medicines
Procedure to start a Pharmacy Store in India
India Vs Pakistan: Kulbhushan Jadhav's Case
Contempt of Court
Juvenile Justice Act, 2000
Bankruptcy & Insolvency in India
The Maternity Benefit Act, 1961
Guardian and Ward Act In India
Medical Negligence in India
Procedure to be followed in Civil Recovery Proceedings
Rights of Consumers
Mandatory Registration of Documents and procedure
Rafale Deal And All About The Controversy
The term property is interpreted in numerous ways. Everything that revolves around an individual can be considered as property. However, in law, the definition of property broadly differs. According to law, the term Property includes the following:
Types of Properties
The term “property” can be divided into two:
Further Corporal Properties are categorized into Movableproperty and Immovable property.
The transfer of Property Act, 1882, was enacted on 17th February 1882 and came into force on 1st July 1882. This act deals with the regulation of transfer of property in India. Basic Principles related to the transfer of Property Act are listed through this article.
Concept of Property
A proprietor who has the exclusive rights on the things that are owned by him when he is free to claim, dispose, and use them as he pleases. The proprietor also has the right to exchange the property or to gift it. The proprietor enjoys the advantage to rent, sell, mortgage, transfer, exchange, consume or even destroy them.
Following are the basic principles of Property Rights:
Conditions restricting Transfer
Section 10-18 of the Transfer Property Act, 1882, lays down the various kinds of restrictions that are imposed on the transfer of a property. “Condition Restraining Alienation” is said to exist when the transferee’s (the person to whom the property is transferred) power to dispose or transfer the property is restricted.
Section 10 of the Transfer Property Act, 1882 states that when a transferee is restricted through limitation or “absolute” restriction from alienating the property, then such contracts are void and invalid in the eyes of the law.
Exceptions to the rule:
There are two exceptions to this law. They are:
Absolute Restriction
Constraints are put on the alienation of the property. As per section 10 of the Transfer Property Act, 1882, “absolute restriction” is void and invalid in the eyes of the law.
Partial Restriction
As the name suggests, these restrictions are partial. They don’t put restrictions on the total alienation of the property and, thus, such restrictions are valid.
Case Law
In this case, the property was transferred with the condition that the transferee further should not sell it for the next 20 years. However, the Court held that such conditions are not partial but absolute in nature, and therefore, this transfer is void. Section 10 of the Act declares any such agreements void and null.
For instance, if this period had not been of 20 years and was of 2 or 3 years, then such condition would have considered as partial restriction and then it would be not void.
Mr J B Rosher made a will to gift his son a piece of his property. In the will, he also included that in future his son would be only allowed to sell this property to his mother Mrs. Rosher, at the one-fifth rate and no one else. The court, in this case, held that by putting up the condition of selling it only to a single person leads to absolute restriction, therefore making it null and void.
Definition of Transfer of Property
As per section 5 of the Transfer of Property Act, 1882, transfer of property means “an act through which a living person transfer his property, in present or future, to one or more other living persons or himself.” A living person can be an individual or an association or a company or body of individuals, importance of the fact, that it’s incorporated or not. The word “Transfer” has a wider scope, and it covers the transfer of a single property or more than one property.
Requirements of a Valid Transfer:
Features of Transfer of Property, as mentioned under section 5 of the act are:
Types of Transfer:
Person Competent to Transfer:
Case Law
Mallikarjuna vs Mareppa
In this case, the property was brought under the name of a minor child by their guardian. After a few years, the property was sold off, when the son was still a minor. The court declared the sale null and void as the guardian failed to take the permission under section 8 of the Hindu Minority and Guardianship Act, 1956, which is mandatory.
Transferrable and Non- Transferrable Property
Section 6 of the Transfer of Property Act, 1882, lays down the properties that may or may not be transferred. Property is generally transferable, however; the properties mentioned under this section are not applicable for transfer from one party to another.
Clause (a)
The term “Spessuccessionis” means when a piece of property has the chances that it may get transferred in the future through:
Clause (b)
This section is regarding the right of Re-entry. The general transferability states that a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected. Such types of clauses are usually helpful in a lease agreement, where the lesser wants to protect or safeguard his property.
Clause (c)
It covers the topic of an easement. It is basically a right which is connected to the property and has no existence independently. Therefore, the transfer of such properties is not possible and is restricted under clause (c) of section 6.
Clause (d)
It says that an interest in property restricted in its enjoyment to the owner personally cannot be transferred. For example, if a person is staying on rent, he/she is not entitled to transfer that property. It is also known as the clause of restricted interest.
Clause (dd)
When a property is applicable for future maintenance, the right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further.
Clause (e)
A mere right to sue cannot be transferred from one party to another. If the right to sue is for indefinite amount, it cannot be transferred, and if the amount is definite, it may get transferred.
Clause (f)
It covers the concept of Public office. The salary of a public officer is non-transferrable.
Clause (g)
The clause mentions that Pensions given to the politicians and government officials can not be transferred. It also involves the stipends provided to the naval, air-force, and the military officials. A will cannot be executed in this case, as it can be only made in respect of an estate.
Clause (h)
No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service cannot be transferred.
Clause (i)
This section makes it clear that a tenant having a un-transferable right of occupancy cannot in any way transfer his interest.
Transfer to an unborn child and Rule of Perpetuity
According to section 13 of the Transfer of Property Act, 1882, a property can be transferred from a living person to an unborn person. Section 13-16 is the general exception to the rule which states that a property can be transferred from one living person to another.
Certain provisions need to be followed when a person wants to transfer property to an unborn child. These particular sections of regulations have been adopted from England is also termed as “The rule of Double Possibilities”. The provisions required are as follows:
Existence Matters
The unborn should have come into existence before the death of the last property holder. Existence means, the unborn should have been present in the mother’s womb. If there is no pregnancy, then the property on the assumption that a future child will be born, a person cannot transfer the property.
No direct Transfers
Direct transfers cannot be made to an unborn person. As per section 13, when a transfer is to be made to an unborn person, the transfer first needs to transfer it to a living person. A living person can be trusted with the transfer unless the unborn is born or a trust can be created.
The basic principle laid down in Section 13 is that the person who is transferring the property shall not bind the free disposition of the said property for more than one generation. A person can enjoy the interest in the property, till the unborn comes into existence.
Instant Transfer of Rights
The transfer of rights should take place in a minimal amount of time. As soon as the child is born, all the transfer rights have to be vested in him/her. A transfer can be made to an unborn person, but not to the next generation of the unborn.
Rule against perpetuity
Section 14 of the Act, governs the rules against perpetuity.
The main objective of the rule against perpetuity is that there are people who have an interest in keeping the property in the family, from generation to generation. Such a situation leads to a significant loss for society. This activity deprives people of the benefits that arise through this property. The rule against perpetuity makes sure that there is free circulation of property, and not only do people enjoy the benefits, but also for the betterment of the property.
Under section 14, the following conditions need to be followed:
There are certain exceptions, to the rule against Perpetuity. They are:
Vested and Contingent Interest
Vested Interest
|
Contingent Interest |
As per section 19, if during the transfer of property, an interest is created without any terms and conditions, then it is said to be a vested interest.
|
According to section 21 of the Act, contingent interest is created when it is specified that certain event should take place for the interest to be created or when it is mentioned that an event should not take place. |
There is an immediate or present right even though the enjoyment is postponed. |
In this case, only a promise exists to give a right. |
If the transferee dies, the interest is not influenced. |
In the situation where a transferee dies, the contingent right is affected. |
Vested interest is heritable as well as transferrable. Therefore, when a transferee dies without the possession, the right gets transferred to its heirs. |
Contingent interest is transferrable. However, its heritability depends upon the nature of the condition. It does not automatically pass to the heir of the transferee. |
Conclusion
The Transfer Property Act, 1882, one but many elements which need to be complied with appropriately to transfer a particular property from one person to another. Therefore, it becomes essential that a lawyer is hired when someone wants to transfer a property. It becomes an easy task for an experienced lawyer to engage in such contracts. Further, all the hidden expenses can be reduced.
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The term property is interpreted in numerous ways. Everything that revolves around an individual can be considered as property. However, in law, the definition of property broadly differs. According to law, the term Property includes the following:
Types of Properties
The term “property” can be divided into two:
Further Corporal Properties are categorized into Movableproperty and Immovable property.
The transfer of Property Act, 1882, was enacted on 17th February 1882 and came into force on 1st July 1882. This act deals with the regulation of transfer of property in India. Basic Principles related to the transfer of Property Act are listed through this article.
Concept of Property
A proprietor who has the exclusive rights on the things that are owned by him when he is free to claim, dispose, and use them as he pleases. The proprietor also has the right to exchange the property or to gift it. The proprietor enjoys the advantage to rent, sell, mortgage, transfer, exchange, consume or even destroy them.
Following are the basic principles of Property Rights:
Conditions restricting Transfer
Section 10-18 of the Transfer Property Act, 1882, lays down the various kinds of restrictions that are imposed on the transfer of a property. “Condition Restraining Alienation” is said to exist when the transferee’s (the person to whom the property is transferred) power to dispose or transfer the property is restricted.
Section 10 of the Transfer Property Act, 1882 states that when a transferee is restricted through limitation or “absolute” restriction from alienating the property, then such contracts are void and invalid in the eyes of the law.
Exceptions to the rule:
There are two exceptions to this law. They are:
Absolute Restriction
Constraints are put on the alienation of the property. As per section 10 of the Transfer Property Act, 1882, “absolute restriction” is void and invalid in the eyes of the law.
Partial Restriction
As the name suggests, these restrictions are partial. They don’t put restrictions on the total alienation of the property and, thus, such restrictions are valid.
Case Law
In this case, the property was transferred with the condition that the transferee further should not sell it for the next 20 years. However, the Court held that such conditions are not partial but absolute in nature, and therefore, this transfer is void. Section 10 of the Act declares any such agreements void and null.
For instance, if this period had not been of 20 years and was of 2 or 3 years, then such condition would have considered as partial restriction and then it would be not void.
Mr J B Rosher made a will to gift his son a piece of his property. In the will, he also included that in future his son would be only allowed to sell this property to his mother Mrs. Rosher, at the one-fifth rate and no one else. The court, in this case, held that by putting up the condition of selling it only to a single person leads to absolute restriction, therefore making it null and void.
Definition of Transfer of Property
As per section 5 of the Transfer of Property Act, 1882, transfer of property means “an act through which a living person transfer his property, in present or future, to one or more other living persons or himself.” A living person can be an individual or an association or a company or body of individuals, importance of the fact, that it’s incorporated or not. The word “Transfer” has a wider scope, and it covers the transfer of a single property or more than one property.
Requirements of a Valid Transfer:
Features of Transfer of Property, as mentioned under section 5 of the act are:
Types of Transfer:
Person Competent to Transfer:
Case Law
Mallikarjuna vs Mareppa
In this case, the property was brought under the name of a minor child by their guardian. After a few years, the property was sold off, when the son was still a minor. The court declared the sale null and void as the guardian failed to take the permission under section 8 of the Hindu Minority and Guardianship Act, 1956, which is mandatory.
Transferrable and Non- Transferrable Property
Section 6 of the Transfer of Property Act, 1882, lays down the properties that may or may not be transferred. Property is generally transferable, however; the properties mentioned under this section are not applicable for transfer from one party to another.
Clause (a)
The term “Spessuccessionis” means when a piece of property has the chances that it may get transferred in the future through:
Clause (b)
This section is regarding the right of Re-entry. The general transferability states that a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected. Such types of clauses are usually helpful in a lease agreement, where the lesser wants to protect or safeguard his property.
Clause (c)
It covers the topic of an easement. It is basically a right which is connected to the property and has no existence independently. Therefore, the transfer of such properties is not possible and is restricted under clause (c) of section 6.
Clause (d)
It says that an interest in property restricted in its enjoyment to the owner personally cannot be transferred. For example, if a person is staying on rent, he/she is not entitled to transfer that property. It is also known as the clause of restricted interest.
Clause (dd)
When a property is applicable for future maintenance, the right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further.
Clause (e)
A mere right to sue cannot be transferred from one party to another. If the right to sue is for indefinite amount, it cannot be transferred, and if the amount is definite, it may get transferred.
Clause (f)
It covers the concept of Public office. The salary of a public officer is non-transferrable.
Clause (g)
The clause mentions that Pensions given to the politicians and government officials can not be transferred. It also involves the stipends provided to the naval, air-force, and the military officials. A will cannot be executed in this case, as it can be only made in respect of an estate.
Clause (h)
No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service cannot be transferred.
Clause (i)
This section makes it clear that a tenant having a un-transferable right of occupancy cannot in any way transfer his interest.
Transfer to an unborn child and Rule of Perpetuity
According to section 13 of the Transfer of Property Act, 1882, a property can be transferred from a living person to an unborn person. Section 13-16 is the general exception to the rule which states that a property can be transferred from one living person to another.
Certain provisions need to be followed when a person wants to transfer property to an unborn child. These particular sections of regulations have been adopted from England is also termed as “The rule of Double Possibilities”. The provisions required are as follows:
Existence Matters
The unborn should have come into existence before the death of the last property holder. Existence means, the unborn should have been present in the mother’s womb. If there is no pregnancy, then the property on the assumption that a future child will be born, a person cannot transfer the property.
No direct Transfers
Direct transfers cannot be made to an unborn person. As per section 13, when a transfer is to be made to an unborn person, the transfer first needs to transfer it to a living person. A living person can be trusted with the transfer unless the unborn is born or a trust can be created.
The basic principle laid down in Section 13 is that the person who is transferring the property shall not bind the free disposition of the said property for more than one generation. A person can enjoy the interest in the property, till the unborn comes into existence.
Instant Transfer of Rights
The transfer of rights should take place in a minimal amount of time. As soon as the child is born, all the transfer rights have to be vested in him/her. A transfer can be made to an unborn person, but not to the next generation of the unborn.
Rule against perpetuity
Section 14 of the Act, governs the rules against perpetuity.
The main objective of the rule against perpetuity is that there are people who have an interest in keeping the property in the family, from generation to generation. Such a situation leads to a significant loss for society. This activity deprives people of the benefits that arise through this property. The rule against perpetuity makes sure that there is free circulation of property, and not only do people enjoy the benefits, but also for the betterment of the property.
Under section 14, the following conditions need to be followed:
There are certain exceptions, to the rule against Perpetuity. They are:
Vested and Contingent Interest
Vested Interest
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Contingent Interest |
As per section 19, if during the transfer of property, an interest is created without any terms and conditions, then it is said to be a vested interest.
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According to section 21 of the Act, contingent interest is created when it is specified that certain event should take place for the interest to be created or when it is mentioned that an event should not take place. |
There is an immediate or present right even though the enjoyment is postponed. |
In this case, only a promise exists to give a right. |
If the transferee dies, the interest is not influenced. |
In the situation where a transferee dies, the contingent right is affected. |
Vested interest is heritable as well as transferrable. Therefore, when a transferee dies without the possession, the right gets transferred to its heirs. |
Contingent interest is transferrable. However, its heritability depends upon the nature of the condition. It does not automatically pass to the heir of the transferee. |
Conclusion
The Transfer Property Act, 1882, one but many elements which need to be complied with appropriately to transfer a particular property from one person to another. Therefore, it becomes essential that a lawyer is hired when someone wants to transfer a property. It becomes an easy task for an experienced lawyer to engage in such contracts. Further, all the hidden expenses can be reduced.
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