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Transfer of Property Act
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Transfer of Property Act
Transfer of Property Act

When a person owns a piece of immovable property, the law gives them the right to use, lease, sell, transfer, gift, mortgage that piece of land. Transfer of property has been defined as an act by which a living person transfers property, in present or future, to another living person or to himself and one or more other living persons (including a company/association/body of individuals).

 

A Transfer of Property is a contract and hence, all requirements to constitute a valid contract are to be satisfied.

  • The Transfer shall be between two or more persons
  • The property must be transferable  in nature
  • The Transfer of property must not be forbidden by law, not allowed to defeat the provision of any law, the transfer must not be fraudulent, and not cause injury to the person or property of  another.
  • The Transfer must not be of a property that is deemed immoral or opposed to public policy.
  • Every person entering into a deed of transfer should be competent to transfer the property. A person competent to transfer is a person competent to enter into a contract.

 

Some Important sections of the Act are as under: -

  • According to section 9 of the Act, any property may be transferred orally for which a written transfer is not expressly demanded by law.
  • Section 13, of the Act does not permit the transfer of property directly in favour of an unborn person. During the transfer, it is essential that the person to whom the property is being transferred shall be in existence since transfer cannot be made directly to an unborn person. It can, however, be made by creating interest in favour of a living person in existence at the date of transfer.
  • Section 14 of the Act creates a rule against perpetuity by permitting perpetuity up to a certain period and not beyond that.  Vesting of property cannot be postponed beyond the life of the living person and the minority of the unborn person.
  • For Example:  If a property is transferred to a living person, AB for life, then to XY for life and then to the unborn child of XY. The child of XY must exist during or before the date of expiry of the life estate in favour of XY. In this case, when the unborn child attains the age of majority, i.e. 18 years plus one day, the transfer shall stand void. Since, if perpetuities are permitted, the property in question will soon become ex-commercial.
  • Unless a different intention is expressed, a transfer of property passes to the transferee all the interests attached with the property — for example, all things attached to the earth within the area of the property to be transferred.
  • Section 48 of the Act states that no man can convey a title than what he has.
  • Section 53 of the Act states that every owner has the right to transfer his property as he wishes, but the transfer must be made with a bonafide intention and should not constitute a fraudulent transfer.
  • Hence, for property to be transferable, several conditions need to be fulfilled for it to constitute a valid transfer.

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