Law > Civil Laws > Transfer of Property Act > Introduction
The Transfer of Property Act, 1882 is one of the oldest Act in India.
Property is a very wide term and would include anything which carries some value and over which the right of ownership may be exercised. In Raichand v. Dattatrya AIR 1964 Bom 344 case the court observed that the word property in its most comprehensive sense includes all legal rights of a person except his personal rights, which constitute his status or personal condition.
Under English law, the property is generally classified into real property and personal property. The real property comprises of all properties admitted to specific recovery and is freehold interests in land. Property in respect of which only a personal action lay was classified as personal property. Personal property is all forms of property other than real property. In Indian law, the distinction of properties is immovable and movable property.
A transfer of property may confer upon the transferee an interest, which carries with it the right to immediate possession. Then that interest is said to be an estate in praesenti. If there is no right to immediate possession, then the interest in question is said to be an estate de futuro.
The preamble to the Transfer of Property Act, 1882, lays down that it is an Act to define and amend the law relating to the transfer of property by act of parties. A Bill was presented to the Legislative Council, became a law on the 17th of February 1882 and came into force from 1st July of the same year. Before that, the transfer of immovable property was governed by principles of English law and equity.
The Transfer of Property Act, 1882 mainly deals with the transfer of immovable property. It does not apply to transfers by the operation of law such as transfer of immovable property necessitated by Order of Court for insolvency or forfeiture among others. There are 8 Chapters and 137 Sections. It is applicable to the whole of India.
|
Property |
Between |
Act Applicable |
|
A movable property |
inter-vivos (between two living persons) |
Sales of Goods Act, 1930 |
|
immovable property |
from living person to living person(s) |
Transfer of Property Act, 1882 |
|
Any property |
from a dead person to a living person(s) |
Indian Succession Act |
|
Any Property |
from a dead person to a living person(s) and intestate |
Law of Intestate Succession |
|
Any Property |
from a dead person to a living person(s) and testate |
Law of Testamentary Succession |
Objectives of Transfer of Property Act, 1882:
- As per the preamble of the Act, the Transfer of Property Act, 1882 is to define, amend or regulate the law relating to the transfer of property by the acts of the parties.
- The Act provides a clear, systematic and uniform law for the transfer of immovable property between living persons.
- The Act is an extension to the Code of Contract since it is an enacted law for transfers that take place in the consequence of a contract.
- With provision for inter-vivos (between two living persons) transfers, the Act, provides a law parallel to the existing laws of testamentary and intestate transfers.
- The Act is not exhaustive because it does not cover the entire dimension of transfer of property. Hence we can say its scope is limited.
- The Act provides scope to apply the principles of Justice, Equity and Good Conscience if a particular case is not governed by any provision of law.
- The Act envisages the following six types of transfer: 1) Sale, 2) Mortgage, 3) Lease, 4) Exchange, 5) Gift and 6) Actionable claim.
Scope of Transfer of Property Act, 1882:
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 takes place. Since the Act is not a complete code of transfer of property; we can say its scope is limited. The Act does not apply to all the transfers taking place in India It is only applicable for people(parties) not for the operation of Court of law. It is valid only for transferring between living persons. Mainly it is applicable to immovable properties. Some sections of the Act are related to movable properties. The Act applies to the whole of India.
When there is a special law enacted by the Parliament to safeguard certain specific rights and thereby the Transfer of Property Act, 1882 is excluded, that special law will prevail over the general Act. For example, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is a special law for the purpose, which rules out the application of a general law like the Transfer of Property Act to matters covered by the special law. In Mardia Chemicals Ltd. v. Union of India (2004) 4 SCC 311, the Supreme Court upheld the validity of the special law, which contained provisions inconsistent with the T. P. Act, 1882.
Characteristics of Transfer of Property Act, 1882:
- The Act applies to transfer by the act of parties and not by the application of the law. Thus, its operations are limited to transfers by the act of parties only except in a few cases saved by Section 2 of the Act.
- The Act does not incorporate rules for all modes of transfer in existence. The Act does not even claim to be a complete code as apparent from the omission of the term ‘consolidate’ from its Preamble.
- The Act mainly deals with the transfer of immovable properties only.
- In case of a conflict between the Act and rules of Muslim Law, the latter will prevail.
- Certain incidents of a contract or the essential nature of property are an exemption from the operation of the Act by Section 2.
Next Topic: What is Immovable Property? (S. 3)