The Transfer of Property Act, 1882

The present legislation was enacted during the period when there was British rule in India and was short titled as ‘The Transfer of Property Act, 1882’ being Act no. 4 of 1882. The said was assented by the Governor General of India in Council on 17th day of February, 1882. The enactment was provided with object and purpose to define and amend the laws relating to the transfer of property by the act of parties. This Act was sought to be brought into operation or effect on 1st day of July, 1882, as per its first Chapter dealing specifying preliminary provisions. So far as the extension of the provisions of the Act is concerned, it was originally provided to extend to the British defined territories, however, after the same was adopted in Independent, it was extended to the entire Indian territories in the first instance however, was restricted to extend to the territories comprising in Part B States before the 1st November, 1956, but to the said states or any part thereof, the State Government concerned can be extended to by notifying it. Moreover, the Act makes provisions to repeal certain enactments with provided saving options, which are specified under the Schedule annexed with the Act. The legislation overall makes separate provisions in respect of different types of transfers of the property, such as sale, mortgage, lease, charge, etc. along with the separate chapter dealing with description in respect to the ‘transfer of property’.

Similarly, the Act provides for interpretation of the certain terms, including the term ‘immovable property’, ‘Instrument’, etc. The second chapter is important one from amongst the others, relating to how the properties can be transferred by the act of parties. Section 5 specifically defined the term ‘transfer of property’ which here means an act by which a person conveys property to one or more persons, or to himself and one or more other persons. The act of transfer can be done in present or for future. It is also made clear that expression ‘person’ includes an individual, company or association or body of individuals, and any kind of property can be transferred including immovable Property. Further, the persons capable of perform such transfer should be from the group of persons having crossed age of majority and having sound mind and the persons who are not barred expressly under any law. Moreover, the persons who are owners or being authorized to dispose of the property being transferable one. Further, the Act says that the transfer can be either in writing or even oral. It is provided that a condition or limitation on which the transfer if was made, under which the transferee is restricted to further alienate the property, then the said conditions or limitations should be treated as void, however, in case of Lease, the said conditions or limitations are provided for lessor as such the provision is not applicable to lease. Similarly, whenever any interest is absolutely transferred under this Act in case of any property, but certain manners are provided while executing such transfer, in which only the transferee is required to dealt with the property, then the section 11 of the Act says that such interest to be enjoyed by the transferee as if there is no such restriction provided.

Also the Act makes provisions for dealing with certain situations, such as transfer of property by creating an interest in favor of unborn person, property transferred or creation of interest thereof in the manner to make perpetual title in respect thereof, all these situations are restricted under this Act. However, such restrictions are not to be applied in case of transfer of property for the benefit of public at large, including for religious, knowledge, commerce, health, etc. purposes. Further provisions are describing transfer, its effect in different situations. Provisions for conditional, contingent transfer and apportionment, also, have been made under this Act. Besides all these transfer related provisions, the Act sought to explain in detail, the various other types of transfers, like sale, mortgage, lease, charge, exchange and transfer of actionable claims and their relevant aspects including rights, liabilities of the parties to such transfers, any situations or circumstances arising thereof.

Besides, the provisions of this Act, as the property is an very effective element in the society, by reason of which the many relations, rights, responsibilities of members thereof are decided, the various supportive interpretations, proper implementations, etc. through various precedents were provided from time to time by the Indian Judiciary, to make such provisions more effective and to curb the property related disputes. Also legislature being law making organ, supporting the provisions by enacting from time to time, required amending Acts, the recent amongst them is the Transfer of Property (Amendment) Act, 2002 (Act no. 3 of 2003).

by Faim Khalilkhan Pathan.