Brief Summary
This YouTube video by Law Wallah provides a comprehensive one-shot session on the Transfer of Property Act (TPA), 1882, tailored for judiciary exam aspirants. It covers key aspects such as the Act's applicability, nature, important definitions, and various types of transfers, including sales, mortgages, leases, exchanges, and gifts. The session emphasises understanding the direct interpretation of the Act, supported by flowcharts for better comprehension.
- The TPA applies to both movable and immovable property.
- The Act is codifed, substantive, and not exhaustive, requiring reference to other laws like the Indian Contract Act and the Civil Procedure Code.
- Key sections covered include Section 5 (Transfer of Property), Section 6 (What may be transferred), Section 10 (Condition restraining alienation), Section 13 (Transfer for benefit of unborn person), and Section 14 (Rule against perpetuity).
Introduction to Transfer of Property Act
The session aims to provide an advanced understanding of the Transfer of Property Act (TPA), building upon previous sessions. It is designed to be interactive, addressing students' doubts and clarifying their understanding of the subject. The session is scheduled for a Sunday to accommodate students' availability and is expected to last for approximately 6 to 7 hours. A PDF containing around 150 slides will be available for download from the PW Law Wallah Judiciary Telegram channel after the session. Students are advised to keep a bare act handy for direct interpretation, which is crucial for understanding landmark decisions and the basic framework of the TPA.
Key Definitions: Transfer and Property
The TPA is Act number 4 of 1882. The session focuses on two key words: "transfer" and "property". The discussion highlights that the TPA deals with the transfer of rights and interests in property rather than the physical transfer of immovable property itself. While movable property involves the transfer of possession and rights, immovable property transfer involves only the rights and interests associated with it. These rights can be restricted, conditional, or partial, including the right to enjoy the property or complete ownership.
Scope and Nature of the TPA
The TPA applies to both movable and immovable property, with different sections addressing each. The Act is codified, substantive, and not exhaustive, requiring reference to other laws like the Indian Contract Act, CPC, and Specific Relief Act. It does not cover all aspects of property transfer, such as limitations or matters governed by Muslim law. Before the TPA, property transfers were governed by the law of equity, justice, and good conscience. The TPA is part of the Concurrent List (List III) of the Constitution, allowing both state and central governments to make amendments.
Types of Property Transfer
Property transfer can occur in two ways: by act of parties and by operation of law. The act of parties involves voluntary actions, which can be testamentary (through a will) or inter vivos (between living parties). Operation of law includes succession and execution. Inter vivos transfers under the TPA include sale, mortgage, lease, exchange, gift, and actionable claim, each governed by specific sections of the Act.
Section 1: Application and Non-Application of TPA
Section 1 of the TPA specifies its application and non-application. Initially, it did not apply to Bombay, Delhi, and Punjab, but it gradually extended across India, excluding Punjab, where the law of justice, equity, and good conscience prevails. The state government has the power to extend or exempt the TPA's application in specific territories and can exempt certain sections like 54 (paras 2 and 3), 59, 107, and 123, especially where the Indian Registration Act does not apply.
Section 2: Repeal of Existing Laws
Section 2 addresses the repeal of existing laws conflicting with the TPA. It repeals enactments specified in the TPA's schedule but preserves certain rights and liabilities. These include enactments not expressly repealed, contract terms consistent with the TPA, rights and liabilities arising before the TPA's enforcement, and transfers effected by operation of law (with exceptions for sections 57 and Chapter 4). The TPA does not affect Muslim law.
Section 3: Interpretation Clause - Immovable Property
Section 3 defines key terms, including immovable property. It provides a negative definition, excluding standing timber, growing crops, and grass, and a positive definition, including land, benefits arising out of land, and things attached to the earth. Things attached to the earth include items rooted in the earth (trees), embedded in the earth (walls), or attached to what is embedded for permanent beneficial enjoyment (windows). The definition of immovable property is crucial for understanding the Act's scope.
Section 3: Interpretation Clause - Attestation and Notice
Section 3 defines "attested" as requiring at least two witnesses who have seen the executant sign or affix their mark and have also signed the document themselves in the presence or direction of the executant. There is no fixed format for attestation, and witnesses need not be present at the same time. "Registered" refers to documents executed under any registration law in India. "Notice" includes actual notice (direct knowledge) and constructive notice (knowledge that could have been obtained through reasonable inquiry).
Section 3: Interpretation Clause - Types of Notice
Constructive notice arises from wilful absence from inquiry or gross negligence. The explanation of notice includes registration as notice, possession as notice, and notice to an agent (except in cases of fraud or concealment by the agent). Registration of a transaction related to immovable property serves as notice to anyone acquiring the property. Possession of property implies notice of the possessor's title. Notice to an agent is considered notice to the principal, unless the agent fraudulently conceals information.
Section 4: Enactments Supplementary to the Indian Registration Act
Section 4 states that sections and chapters of the TPA relating to contracts are part of the Indian Contract Act, 1872. Sections 54 (paras 2 and 3), 59, 107, and 123 are supplementary to the Indian Registration Act, 1908. This means that these sections of the TPA do not apply where the Indian Registration Act is not in operation.
Section 5: Transfer of Property Defined
Section 5 defines transfer of property as an act by which a living person conveys property, in present or future, to one or more other living persons, or to himself and one or more other living persons. "Living person" includes a company, association, or body of individuals. This section establishes the basic requirements for a valid transfer of property.
Section 6: What May Be Transferred
Section 6 states that property of any kind may be transferred, except as otherwise provided by the TPA or any other law. This section is primarily negative, listing types of property that cannot be transferred. These include the chance of an heir apparent succeeding to an estate, a mere right of re-entry, an easementary right, restricted interests, a right to future maintenance, a mere right to sue, public offices, stipends to military personnel and government pensioners, and interests opposed to the nature of the interest affected.
Section 6: Exceptions - What Cannot Be Transferred
Section 6 lists several exceptions, detailing what cannot be transferred. This includes the chance of an heir apparent, a mere right of re-entry, an easementary right, restricted rights, the right to future maintenance, a mere right to sue, public offices, stipends, and interests opposed to the nature of the interest affected. Additionally, transfers involving unlawful considerations or objects, or to persons legally disqualified, are prohibited.
Section 7: Persons Competent to Transfer
Section 7 specifies who is competent to transfer property. This includes individuals competent to contract (major, of sound mind, and not disqualified by law) and those entitled to transferable property or authorised to dispose of property not their own. The transfer can be whole or partial, absolute or conditional.
Section 8: Operation of Transfer
Section 8 outlines what passes with the property upon transfer. This includes easements, rents, and profits for land; movable parts for machinery; doors, windows, and keys for a house; securities for actionable claims; and income or interest for money. These legal incidents are presumed to transfer with the property.
Section 9: Oral Transfer
Section 9 allows for oral transfers unless writing is expressly required by law. This provides flexibility in property transfers, provided that specific legal requirements are met.
Section 10: Condition Restraining Alienation
Section 10 addresses conditions restraining alienation. It states that when property is transferred with a condition absolutely restraining the transferee from parting with or disposing of their interest, the condition is void. However, this does not apply to leases where the condition benefits the lessor or their assigns.
Sections 10, 11, and 12: Valid and Void Conditions
Sections 10, 11, and 12 deal with conditions attached to property transfers. Section 10 states that absolute restraints on alienation are void, while partial restraints may be valid. Section 11 invalidates conditions restricting the mode of enjoyment, except for the benefit of the transferor. Section 12 addresses conditions making an interest cease upon insolvency or attempted alienation, which are generally void, except in cases of partial transfers.
Section 13: Transfer for Benefit of Unborn Person
Section 13 allows for the transfer of property for the benefit of an unborn person, subject to certain conditions. A prior interest must be created, and the entire remaining interest of the transferor must be transferred to the unborn person. The unborn person must come into existence before the prior interest terminates.
Section 14: Rule Against Perpetuity
Section 14, the rule against perpetuity, prevents property from being tied up indefinitely. It states that no transfer can operate to create an interest that takes effect after the lifetime of one or more living persons and the minority of some person who is in existence at the expiration of that period. This section ensures that property rights vest within a reasonable time frame.
Sections 15, 16, and 17: Addressing Invalid Transfers
Section 15 addresses transfers to a class, some of whom are subject to Section 13 or 14. If the transfer fails for some members of the class, it is void only for those members. Section 16 states that if a prior interest fails, any subsequent interest also fails. Section 17 deals with directions for accumulation, limiting the period for which income can be accumulated to the life of the transferor or 18 years from the date of transfer, whichever is longer, with exceptions for debt payment, children's portions, and property maintenance.
Sections 19 and 21: Vested and Contingent Interests
Section 19 defines vested interest, where the right to enjoy property is immediate, even if possession is postponed. Section 21 defines contingent interest, where the right depends on the happening of an uncertain event. Vested interests are heritable and transferable, while contingent interests become vested upon the fulfilment of the condition.
Sections 22, 23, and 24: Conditional Transfers
Section 22 addresses transfers to members of a class who attain a particular age. Section 23 deals with transfers contingent on an uncertain event, where no time is specified. Section 24 covers transfers to persons who survive a specified period, ensuring that the interest passes to those alive at the designated time.
Sections 25, 27, and 28: Conditional Transfers and Prior Dispositions
Section 25 defines conditional transfer, where an interest depends on fulfilling a condition. Section 27 addresses conditional transfers to one person with a coupled interest for another, and the failure of the prior disposition. Section 28 covers ulterior transfers conditional on the happening or non-happening of an uncertain event.
Sections 31, 33, and 34: Cessation of Interest and Performance of Conditions
Section 31 discusses the cessation of interest when a condition is not fulfilled. Section 33 addresses transfers conditional upon performance, where the transfer takes effect when the act is performed. Section 34 covers cases where performance is prevented by fraud, allowing for an extension of time.
Sections 35 and 37: Election and Apportionment
Section 35 deals with the doctrine of election, where a person cannot accept a benefit under a transaction without also accepting the corresponding obligation. Section 37 covers apportionment, dividing benefits or obligations based on time or interest.
Sections 38, 39, and 40: Transfers by Limited Owners and Obligations
Section 38 addresses transfers by persons authorised only under certain circumstances. Section 39 covers transfers where a third person has a right to maintenance. Section 40 discusses the burden of obligation imposing restrictions on the use of land.
Sections 41, 42, and 43: Transfers by Ostensible Owners and Subsequent Transfers
Section 41 discusses transfers by ostensible owners, where the transferee acts in good faith. Section 42 covers transfers by persons having authority to revoke a former transfer. Section 43 addresses feeding the grant by estoppel, where a transferor later acquires the interest they initially lacked.
Sections 44, 45, and 46: Co-owner Transfers and Joint Transfers
Section 44 addresses transfers by one co-owner, allowing the transferee to enjoy joint possession but not demand partition of a dwelling house. Section 45 covers joint transfers for consideration, where the distribution depends on the intent or proportion of the consideration. Section 46 discusses transfers for consideration by persons having distinct interests.
Sections 47, 48, and 49: Transfer of Share and Priority of Rights
Section 47 addresses the transfer of a share in common property, where the transferee takes the property subject to the rights of other co-owners. Section 48 covers the priority of rights created by transfer, where earlier rights prevail. Section 49 discusses the transferee's right under a policy, allowing the transferee to claim insurance benefits.
Sections 50, 51, and 52: Rent Payments and Improvements
Section 50 addresses rent payments made in good faith to a holder under a defective title. Section 51 covers improvements made by a bona fide holder under a defective title, entitling them to compensation. Section 52 discusses the doctrine of lis pendens, preventing transfers that affect the rights of parties in pending litigation.
Section 53: Fraudulent Transfer
Section 53 addresses fraudulent transfers, where a transfer is made to defeat or delay creditors. Such transfers are voidable at the option of the creditor.
Section 53A: Part Performance
Section 53A deals with part performance, protecting a transferee who has taken possession or performed part of the contract, even if the transfer is not fully complete. This section provides equitable relief to the transferee.
Section 54: Sale Defined
Section 54 defines sale as a transfer of ownership in exchange for a price, which can be partly paid or fully promised. Sales of immovable property valued at ₹100 or more must be registered, while those under ₹100 can be effected by registered instrument or delivery of possession. A contract for sale does not create any interest in or charge on the property.
Section 55: Rights and Liabilities of Buyer and Seller
Section 55 outlines the rights and liabilities of the buyer and seller before and after the sale. Before the sale, the seller must disclose material defects, produce documents, answer questions, take care of the property, and pay public charges. After the sale, the seller must deliver possession and documents. The buyer must disclose facts increasing the property's value, pay the purchase money, and bear losses after the sale.
Section 56: Marshalling by Subsequent Purchaser
Section 56 discusses marshalling by a subsequent purchaser, allowing a buyer of part of a property subject to a common charge to require the chargeholder to satisfy the debt from other properties first.
Section 57: Power to Declare Property Free from Encumbrances
Section 57 grants the court the power to declare property free from encumbrances, allowing for the sale of property with clear title. This involves paying a sufficient amount into court, providing notice to interested parties, and obtaining a declaration from the court.
Section 58: Mortgage Defined
Section 58 defines mortgage as the transfer of an interest in specific immovable property to secure the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement. The mortgagor is the transferor, the mortgagee is the transferee, and the mortgage deed is the instrument effecting the transfer.
Section 59: Mortgage How Made
Section 59 specifies how a mortgage is made. For mortgages securing ₹100 or more, a registered instrument attested by two witnesses is required. For mortgages securing less than ₹100, a registered instrument or delivery of possession is sufficient, except for a simple mortgage, which always requires a registered instrument.
Section 58: Types of Mortgages
Section 58 outlines six types of mortgages: simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title deeds, and anomalous mortgage. Each type involves different conditions regarding possession, sale rights, and redemption.
Rights and Liabilities of Mortgagor
The mortgagor has the right to redeem the property upon payment of the mortgage money, inspect documents, redeem separately or simultaneously, recover possession in a usufructuary mortgage, and accession to the mortgaged property. The mortgagor's liabilities include implied contracts, waste prevention, and managing the property.
Rights and Liabilities of Mortgagee
The mortgagee has the right of foreclosure or sale, to sue for the mortgage money, to sell the property (under certain conditions), to appoint a receiver, and to accession to the mortgaged property. The mortgagee's liabilities include managing the property, paying government revenue, and keeping proper accounts.
Right to Redeem and Foreclosure
The right to redeem allows the mortgagor to reclaim the property upon payment of the mortgage money. The mortgagee has the right of foreclosure, allowing them to prevent the mortgagor from redeeming the property.
Section 65: Implied Contracts by Mortgagor
Section 65 outlines implied contracts by the mortgagor, including the power to transfer the interest, defend the title, pay public charges, and pay rent if the property is leased.
Section 69: Power of Sale When Valid
Section 69 specifies when the mortgagee has the power to sell the property without court intervention. This includes cases where the mortgagor is not Hindu, Muslim, or Buddhist, and the mortgage is an English mortgage, or where the power of sale is expressly conferred in the mortgage deed.
Appointment of Receiver
A receiver can be appointed to manage the mortgaged property and collect income. The mortgagee appoints the receiver, who acts as the agent of the mortgagor. The receiver has powers to receive income, retain remuneration, and apply the money to discharge rents, taxes, and the mortgage debt.
Section 73: Right to Proceeds of Revenue Sale or Compensation
Section 73 grants the mortgagee the right to claim proceeds from a revenue sale or compensation if the property is acquired by the government.
Sections 78 and 79: Priority of Mortgages
Section 78 addresses the postponement of a prior mortgagee due to fraud. Section 79 covers mortgages to secure uncertain amounts, where the maximum amount is expressed.
Section 81: Marshalling Securities
Section 81 discusses marshalling securities, allowing a subsequent mortgagee to require the prior mortgagee to satisfy their debt from other properties first.
Section 82: Contribution to Mortgage Debt
Section 82 covers contribution to the mortgage debt, requiring co-mortgagors to contribute proportionally to the debt.
Sections 83 and 84: Deposit in Court
Sections 83 and 84 address the deposit of mortgage money in court, allowing the mortgagor to stop the accrual of interest.
Sections 91, 92, and 93: Redemption and Subrogation
Section 91 specifies who may redeem the property, including the mortgagor, surety, or creditor. Section 92 discusses subrogation, where a person redeeming the property steps into the shoes of the mortgagee. Section 93 prohibits tacking, preventing the mortgagee from adding subsequent advances to the mortgage debt.
Sections 94, 95, and 99: Rights of Mortgagees and Co-Mortgagors
Section 94 addresses the rights of a mesne mortgagee. Section 95 covers the rights of a co-mortgagor who redeems the property. Section 99 discusses the enforcement of mortgages, outlining the rights and liabilities of parties.
Section 100: Charges
Section 100 defines a charge as an obligation creating a security on immovable property for the payment of money, but which is not a mortgage.
Section 101: No Merger in Case of Subsequent Encumbrance
Section 101 states that there is no merger in the case of a subsequent encumbrance, protecting the rights of subsequent mortgagees.
Sections 102, 103, and 104: Notice and Rule-Making Power
Sections 102 and 103 address notice requirements, specifying that notice to an agent is sufficient and outlining procedures for incompetent persons. Section 104 grants the High Court the power to make rules related to this chapter.
Section 105: Lease Defined
Section 105 defines a lease as a transfer of a right to enjoy immovable property for a certain time, in consideration of a price paid or promised, or of money, a share of crops, service, or any other thing of value.
Sections 106 and 107: Duration and Creation of Leases
Section 106 specifies the duration of leases, with year-to-year leases for manufacturing or agricultural purposes and month-to-month leases for other purposes. Section 107 outlines how leases are made, requiring a registered instrument for leases exceeding one year.
Sections 109 and 110: Rights of Lessor's Transferee and Exclusion of Day
Section 109 addresses the rights of the lessor's transferee, granting them the same rights as the lessor. Section 110 covers the exclusion of the day on which the lease commences.
Section 111: Determination of Lease
Section 111 outlines the modes of determining a lease, including efflux of time, happening of a specified event, termination of the lessor's interest, merger, express surrender, implied surrender, forfeiture, and expiration of notice to quit.
Sections 112, 114, and 115: Waiver and Relief Against Forfeiture
Section 112 discusses the waiver of forfeiture, where the lessor waives their right to terminate the lease. Section 114 provides relief against forfeiture for non-payment of rent. Section 115 addresses the effect of surrender and forfeiture on under-leases.
Section 117: Exclusion of Agricultural Leases
Section 117 excludes agricultural leases from the provisions of this chapter, unless the state government issues a notification to the contrary.
Section 118: Exchange Defined
Section 118 defines exchange as a transfer of ownership of one thing for the ownership of another, where neither thing is money or both things are money only.
Sections 119, 120, and 121: Rights and Liabilities in Exchange
Section 119 addresses the rights of a party deprived of the thing received in exchange due to a defect in title. Section 120 states that the rights and liabilities of parties in an exchange are the same as those of a seller and buyer. Section 121 covers the exchange of money, warranting the genuineness of the money.
Section 122: Gift Defined
Section 122 defines gift as the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Section 123: Transfer How Effected
Section 123 specifies how a gift is effected. For immovable property, a registered instrument signed by or on behalf of the donor and attested by at least two witnesses is required. For movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Sections 124, 125, and 126: Future Property and Onerous Gifts
Section 124 states that a gift of future property is void. Section 125 addresses gifts to several persons, where some do not accept. Section 126 covers when a gift may be suspended or revoked.
Sections 127, 128, and 129: Onerous Gifts and Universal Donee
Section 127 discusses onerous gifts, where the donee must accept the entire gift or reject it. Section 128 addresses the rights and liabilities of a universal donee, where the donor transfers all their property. Section 129 saves donations mortis causa and Muslim law.
Section 130: Actionable Claim Defined
Section 130 defines an actionable claim as a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.
Sections 131, 132, and 135: Transfer of Actionable Claim
Section 131 requires notice of the transfer of an actionable claim to be given to the debtor. Section 132 addresses the liability of the transferee of an actionable claim. Section 135 discusses the assignment of insurance policies.
Sections 136 and 137: Restrictions and Savings
Section 136 restricts legal practitioners from purchasing actionable claims. Section 137 saves certain instruments from the provisions of this chapter, including negotiable instruments and mercantile documents of title to goods.
