Introduction:
Transfer of Property Act, 1882 governs the transfer of immovable
property in India and actionable claims. Any dispute arising out
of this Act comes within the jurisdiction of the Civil Courts.
This Act lays down the
general principles of Real Estate,
like part-performance and provides for dealing with property through
sale, exchange, mortgage, lease, lien and gift. A person who is
acquiring immovable property or any share/interest in it is presumed
to have notice of the title of any other person who was in actual
possession of such a property.
The Act governs the
transfer of property, especially
immovable property between two living persons voluntarily. It
includes current as well as future
transfers/transactions.
In this Act, 'property' has been defined in a generic sense to
include physical objects as well as interests comprised therein.
The Act outlines:
- What is transfer of immovable property?
- Who are the persons competent to transfer?
- Conditions restricting the transfer
- Special conditions during transfer of a property, including cases of an unborn person and transfers for the benefit of public.
- Conditional transfer of property.
Transfer of Property:
'Transfer of property' under the Act is an act by which a living person conveys immovable property, at present or in future, to other living persons. A living person could include an individual, a Hindu undivided family, a company, an association of persons or a body of individuals, whether incorporated or not, every artificial juridical person, not falling within any of the preceding clauses.
Modes of transactions covered:
'Transfer' in regard to immovable property includes all modes of transaction/ transfer of immovable property that lie within the scope of the Act:
- Sale - Purchase
- Rent / Lease
- Mortgage
- Exchange
- Gift
- Others: Leave / License / Charge / Lien
- Transfer of Actionable claims and attached conditions
Exemptions:
The Act does not include transfer of property by Will, though.
However, the Act has some exceptions for the types of property
that can be transferred. These restricted properties include:
- Property provided by the Act itself
- Property provided by any enforceable Act
- An easement of property
- An interest in the property
- A right to future maintenance of property
Latest Amendments:
The Union Cabinet has made amendments to the Transfer of Property Act, with the aim of bringing down litigation. Earlier a six-month notice was mandatory for tenancy spanning a year and a 15-day notice period for a month-to-month tenancy. Since this led to a multiplicity of litigation cases, the Government approved amendments to the legislation, which now allows for the computation of the notice period six months from the date of receipt of notice by the defendant.
Additionally, other laws have placed some restrictions on the property transfer. Glaring examples are:
- Hindu law: The law prohibits the transfer of coparcenary property.
- Mohammedan Law: The law prohibits transfer of Wakf.
Quick Review:
- The Act complements two other laws: Indian Contract Act and Registration Act.
- It is based on the English law of Real Property.
- Many of the provisions of the Act are borrowed from various enactments which it repeals and supersedes.
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