Q1. How is transfer of property defined by the "Transfer of Property Act"?
Ans - As per the section 5 of the "Transfer of Property Act", transfer of property is an act by which a living person conveys his property in present or in future to other living persons. The word "Transfer" for the purpose of the Act includes mortgages, charges, gifts and declarations.
Q2. Which persons are legally competent to transfer an immovable property?
Ans - As per Section 11 of the Transfer of Property Act, persons competent to transfer should be:
- Competent to transfer, i.e, he/she should be a major, of sound mind and not disqualified from any law to which he is subject
- The owner of the immovable property
- Authorized by the owner of the immovable property to transfer the property
Q3. When is an immovable property transferred in favour of the transferee?
Ans - An immovable property is transferred to the transferee immediately after the execution of the transaction. However, if the parties have demonstrated a different intention, either express or implied, the interest in the property will be transferred on the stipulated date or on the happening of the stipulated event.
Q4. What is the extent of interest of transferee in case of joint transferee?
Ans - Where an immovable property is transferred to more than one owner, the respective share of co-owners may be determined by the source of consideration paid for the said immovable property. The default rule is that if the consideration is paid out of separate funds of each of the co-owners, the share of each will be in proportion to their advancement of consideration for purchase of their immovable property.
In case there is no evidence to determine the extent of share of the co-owners in the common fund, it shall be presumed that co-owners had equal share.
Q5. What is a 'fraudulent transfer?' Do all transfers require registration?
Ans - No. All transactions do not require registration, but, wherever the Act requires a registered instrument, the transfer cannot be affected in other way.
Q6. Does a partition of the joint property require any registration?
Ans - No, as no writing is required by the act in such a case, so, a partition can be made orally.
Q7. Can transfer of a non existent property take place?
Ans - No.
Q8. Under what conditions can the transfer of property be restricted?
Ans - A transfer of property may be restricted under the following conditions:
1. If it affects the nature of the interest.
2. If transfer is being done for an unlawful consideration.
3. If transfer is done by disqualifying parties i.e. parties not competent to perform the act.
Q9. Can any person, who actually doesn’t posses any title in the property, transfer it?
Ans - A "Transferor" must fulfill the following criteria in order to become competent to transfer:
1. Be competent to contract.
2. Posses title to the property or must have an authority to
transfer the property.
3. Attained the age of a major as per the provisions of the
applicable laws.
Q10. Can any person, who actually doesn't posses any title in the property, transfer it?
Ans - Yes, provided, he has an authority to transfer. This includes:
1. An agent, acting under a Power of Attorney. An agent, merely managing
the property possesses no authority to transfer it.
2. A guardian of a minor, duly appointed by Court or
3. He may be a receiver, when empowered by Honorable court.
Q11. Is it mandatory to make a transfer in writing?
Ans -As per the provisions of section 9 of the Transfer of property Act, a transfer can be made without writing where, writing is not expressly required by law. Such a provision is applicable in case of:
- Partition of property of joint family.
- Surrender of lease
- Release by mother of her interest in joint family.
- Grant of land for life - Discharge of claim for maintenance
- Settlement of property in consideration of marriage.
- Right to recover a share of immovable property.
And, where the Act requires transfer in writing, it cannot be affected in any other way.
Q12. Can property be transferred to an unborn person?
Ans - Yes, by way of "Trust".
Q13. When does an unborn person acquire vested interest on the transfer for his benefit?
Ans - As per the provisions of section 20, of the Act, an unborn person acquires his vested interest on the transfer for his benefit as soon as that person is born.
Q14. When does the conditional transfer fail?
Ans - According to Section 25 of the Act, an interest created on transfer of property fails under the following conditions, if the fulfillment of the condition:
1. Is impossible.
2. Is forbidden by law or may defeat the provisions of any law.
3. Is fraudulent
4. Involves or implies injury to the person or property of another.
5. If court regards it as immoral or opposed to public policy.
Q15.Who is an ostensible owner?
Ans - An ostensible owner in the Act is a class of people who is not an authorized person but has all the indications of ownership without being the real owner on fulfilling the following requirements:
- The ostensible owner has the consent of the person interested in the immovable property, whether express or implied to transfer the property
- The transfer is for consideration
- The transferee has acted in good faith
- The transferee has taken care that the transferor/ostensible owner had the power to make the transfer
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