Law > Civil Laws > Transfer of Property Act > Acts Amounting to No Transfer of Property
As the transfer of property means conveying of property i.e., creation of new title or interest in the favour of the transferee, if new title or interest has not created in favour of the transferee, the property cannot be said to be conveyed, thus no transfer of property.
Partition:
Partition is not considered as a transfer of property because nothing new is obtained by a co-sharer on the partition, it is not a transfer of property. His specific share, which vested in him earlier, is simply separated. Courts in India have given different views in this regard.
In Soniram v. Dwarkabai 53 BLR 325 case the Bombay High Court held that the partition amounts to a transfer, inasmuch as it involves a conveyance by co-sharers of their respective right, title, and interest in the property. The same view was reiterated by the Bombay High Court in Jagannath Puri v. Godabai AIR 1966 Bom 25 and Dahyabhai v. State of Bombay 62 BLR 348 cases. The same view was taken by Lahore High Court in Sadhu Ram v. Priti Singh, AIR 1936 Lah 220 case.
However, in Panchali v. Panniyodan Manni Air 1963 Ker 66 case, the full bench of the Court overruled previous decisions and held that the partition does not amount to a transfer as defined in S. 5 of the T. P. Act.
In Radhakrishnayya v. Sarasamma ILR 1951 Mad 607 case, the Court held that the partition does not amount to a transfer as defined in S. 5 of the T. P. Act. For the purpose of S. 53(A) of the T. P. Act.
In Stremann v. Commissioner of Income Tax, AIR 1962Mad 26 case, the Court held that the partition does not amount to a transfer for the purpose of S. 16(3)(a)(iv) of the Income Tax Act.
In Commissioner of Income Tax v. Keshavlal, AIR 1965 SC 866 case, the Supreme Court approved the view of Madras High Court and from this decision henceforth the partition does not amount to a transfer as defined in S. 5 of the T. P. Act as there is no transfer of asset.
In Aralappa v. Jagannath AIR 2007 Kar 91 case, the Court held that partition is not a transfer, the reason being that no conveyance is involved because everyone has the antecedent title.
In Amb Singh and Anr. vs. Sub-Divisional Officer and Ors., 1996 (3) WLC 431 case, the Court has differentiated between partition and transfer. The Court in its judgment says that “’Partition’ is a division of the property between coparceners/co-tenants resulting in individual ownership/tenancy of interest of each co-parceners/co-tenants; while ‘transfer’ is an act of a party by which the title of the property is conveyed from one person to another. ‘Partition’ under the Hindu Law, puts an end to the unity of the title, ownership, and possession of the property between the co-parceners. In the partition, there is a severance of joint status and of the unity of possession between the co-owners/co-tenants. Partition neither creates any new title in a co-owner/co-tenant in the property nor is there any fresh acquisition of the property. It only enables the parties to know which particular property or portion thereof is their individual exclusive-share in the property. By partition, the subsisting joint title of the co-owner/co-tenant in the joint property transforms into their separate title in respect of the property which came to their share. In a transfer, the transferee acquires the right and title in the property which did not vest in him earlier. Thus, ‘partition’ of the joint property cannot be treated as a ‘transfer of the property’ between individual co-parceners or co-tenants. Partition of co-parcenary property, therefore, cannot be regarded as a ‘transfer of the property’ because the co-parceners have an antecedent right in the entire co-parcenary property”.
Relinquishment:
Relinquishment of right is referred to as the surrender of one’s ownership rights and claims in a property in favor of another person. Relinquishment is a Release Deed and shows extinguishment of a right, hence it cannot be considered as a transfer. It is not defined under the Transfer of Property Act but is an established practice.
In Provident Investment Co. v. Commissioner of Income Tax AIR 1954 Bom 95 case, the Court held that a relinquishment or a Release Deed necessarily involves extinguishment of right, and therefore, it cannot amount to a transfer within the meaning of S. 5 of the T. P. act, as there is nothing left to transfer.
In Muniappa Pillai v. Periasami, (1975) IMLJ 236 case, the Court held that if the person in whose favour the release is executed, gets certain rights by virtue of such a release, the transaction may amount to a transfer. A similar view was expressed by the Court in Hassina Banu v. Shiv Narayan, Air 1968 MP 307 case.
In Gangabai Bapasa Hadapad v. Mahagundappa Shankarappa Hadapad, AIR 2006 NOC 142 Kar case, it was shown in a partition suit that one of the members has relinquished his right by way of waiver. It was held that this did not amount to transfer and the deed of relinquishment was compulsorily registrable. The failure to implead such member did not affect the suit. The suit was not to be treated as bad for non-joinder of a necessary party.
Surrender:
A deed of surrender is a legal document that transfers property ownership for a given time period provided certain conditions are met. A deed of surrender lets one party, such as a renter, relinquish his or her claims on a particular piece of property to a landlord or other party that holds the underlying title. Once the deed of surrender has been signed, any outstanding claims on the property can be resolved. Surrender is merging of lesser interest into greater interest in such a manner that the greater interest is not enlarged.
In Natwarlal v. Dadubhai, 56 BLR 447 case, The surrender of a life estate by a Hindu widow is not a transfer since it amounts to an act of self-effacement by the widow and accelerates the succession to her husband’s estate.
In Makhanlal v. Nagendranath, 60 Cal 379 case the Court held that the surrender of leases is not a transfer within the meaning of S. 5 of the T. P. Act, as it is a merger of a leases estate with a greater one.
Easement:
According to the Indian Easements Act, 1882 an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
No conveyance can be done in an easement, hence easement is not a transfer of property.
In Sital Chandra v. Delanney, 20 C W.N. 1158 case, the Court held that the creation of easement does not amount to a transfer. A similar view was taken in Traders Miners Limited v. Dhirendra 23 Pat 115 case.
Will:
Under the Indian Succession Act, 1925, a will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document and takes effect after the death of the person making it.
A will does not fall within the definition of transfer within the meaning of S. 5 because a will operates from the death of the person making it, whereas the definition given in S. 5 of the T. P. Act contemplates a transfer by a living person.
Compromise:
Compromise means an agreement of settlement of doubtful claims between the parties with respect to some Property. It is also not a transfer.
In Sonepallii Mutyaly v. Virayya AIR 1946 Mad 452case, the Court held that when one of the parties to the settlement had given up a claim to receive a sum of money from the other, in consideration of latter’s giving up the right to certain property claimed by him, it would amount to transfer.
In Barati Lal v. Salik Ram 38 All 107 case, the Court held that the compromise arrangement between the parties amounted to transfer. However, it is a question of the fact to be answered on the basis of facts and circumstances of each case. A similar view was given in Hussina Banu v. Shivnarayan, AIR 1968 M.P. 307 case by the Court.
In Kalia Barik v. Tikeswar Deo, AIR 2007 NOC 1049 (Ori) case, the Court held that a suit for specific performance cannot be refused only on the ground that it was not registered. It could be directed in decree that it be registered in compliance of the requirement of registration.
Family Settlement:
A family arrangement is a settlement between members of the same family. The family arrangement is an agreement by members of the family to divide and hold family property separately in accordance with the agreement.
The Family arrangement is a settlement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or preserving family property or peace and security of family by avoiding litigation or by saving its right.
In Sahu Madho Das v. pt. Mukund Ram (1955) 2 SCR 22 case, the Court observed that in case of family arrangement, there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others as they have previously asserted it, to the portions allotted to them respectively. Therefore family arrangement is not a transfer.
Charge:
A charge means an interest or right which a lender or creditor obtains in an asset. A charge on the property is not a transfer.
In Gobinda v. Dwarkanath, 35 Cal 837 case, the Court held that a charge on a property is not a transfer within the meaning of S. 5 of the T. P. Act, as the only right created by such a charge is right to payment out of the property subject to the charge.
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