Introduction to Transfer of Property Act

“Arjun was confused as to how he should transfer his land and what are the various modes available for the transfer. He went to Mr. Lexi for help.

Mr. Lexi explained that transfer of land is covered under the Transfer of Property Act, 1882 and there are 5 modes of transfer available under the act.”

Application of TPA

When is the Transfer of Property Act, 1882 applicable?

When an immovable property is being transferred from a living person to another living person(s), then the TPA is applicable.

Is the TPA applicable to transfer of movable property between living persons?

No, as the Sales of Goods Act, 1930 is applicable for the transfer of movable property between living persons.

What is included in immovable property?

●Benefits to arise out of land, and
●Things attached to the earth.

What is excluded from immovable property?

●Standing timber,
●Growing crops, and

What is the meaning of land for the purpose of this act?

It is the portion of the earth surface which includes space above the surface and the ground beneath the surface.
Example- Minerals below the surface of the land, natural or artificial lake on the surface of land.

What does benefits arising out of land means?

The benefits that arise from immovable property are also immovable.
Example- Rent from the house or shop, revenue from agriculture, right to collect leaf from the land, etc,

Why is standing timber, growing crops and grass not treated as immovable property?

Since the purpose of timber, growing crops and grass is achieved only when uprooted, they are therefore treated as movable property rather than immovable property.

What are certain things that are attached to the earth?

It can be defined as-
●Things rooted in the earth, like trees, shrubs.
●Things embedded in the earth, like walls and buildings,
●Things fastened for permanent enjoyment of anything so embedded, like
doors, windows, ceiling fans etc.

Are fruit giving trees treated as standing timber or not?

Two points have to be kept in mind to ascertain whether the tree is movable or immovable property-
●To which category does the tree belong?
●What is its common use?

Are fruit-bearing trees movable property or immovable property?

If only the fruit and flower of the tree is being used, then it is treated as immovable property. If the wood from the tree is being used, then it is treated as a movable property.

Transfer of Immovable Property

What are the essentials of transferring an immovable property?

●Property is to be delivered by a living person.
●Property is to be delivered to a living person(s).
●The property transferred must be transferable.
●The property shall not be transferred for any unlawful object or consideration.
●The transferor must be competent to contract and is entitled to transfer the property.
●Transfer should be according to the modes prescribed in the act.
●Transfer should not be against the rule of perpetuity.
●In case of conditional transfer, conditions should not be impossible or against the law.
●Transfer cannot be executed directly in the favor of unborn child.

Modes of Transfer

What are the different modes available for transfer under the TPA?

There are 5 modes available-
●Exchange, and

What are the different modes that do not amount to transfer under TPA?

●Family arrangement/settlement.

What are the essentials of sale under TPA?

●Parties- Any person can transfer the property except for a minor or lunatic person. However, a minor or a lunatic person can be a transferee or purchaser represented by their guardian.
●Subject Matter- only immovable property.
●Price- It means money. It can be paid fully in cash or partly in cash and partly promised to pay at a future date. The price has to be reasonably fixed.
●Delivery of property- The sale of property is to be registered if the price is more than a hundred rupees.
●Rights and duties of buyers and sellers- The rights and duties are subject to the contract between the parties.

What are the essentials of mortgage under TPA?

●Parties- The person who transfers the interest of his property as collateral to take a loan is called mortgagor. The person to whom such interest is transferred is called mortgagee.
●Mortgage clause- The deed shall contain a clause which states that who shall bear the cost of repairs or any other additional costs and can the mortgagee further mortgage the property or not.
●Possession- This clause decides whether the mortgagor has the right to exercise possession over the immovable property or not.
●Redemption- After the principle amount and interest has been paid the property goes back to the real owner of the mortgaged property.

What are the different kinds or mortgages

a.Simple mortgage or registered mortgage.
b.Mortgage by deposit of title deeds.
c.Mortgage by conditional sale.
d.Usufructuary mortgage.
e.English mortgage.
f.Anomalous mortgage.

What do you mean by simple mortgage?

●Without delivering possession of the mortgaged property.
●When the mortgagor binds himself personally to pay the mortgaged money by execution and registration of a mortgage deed. In the deed, he agrees that in case of his failure to pay the money, the mortgagee shall have the right over the property. The latter can sell the property to recover his money.

What does mortgage by deposit of title deeds mean?

In this kind of Mortgage there is simply a deposit of document of the title without writing or any other legal formalities. This Mortgage, therefore, does not require any writing and being an oral transaction, is not affected by the law of registration.

What is usufructuary mortgage?

Here, the possession of the property is transferred to the mortgagee. The mortgagee can even earn the income from the given property.

What is English mortgage?

After the transfer of the property, the mortgagor personally binds himself to pay the money on a specified date as per the agreement.

What is anomalous mortgage?

Any other kind of Mortgage or combination of the above-defined mortgages come under the category of Anomalous Mortgage.

What are the essentials of lease under TPA?

●Parties- The parties to a lease are the lessor and the lessee. The lessor is also called the landlord and the lessee the tenant.
●Subject matter of lease- The subject matter of lease must be immovable property. The contract for right for grazing is not lease. A mining lease is lease and not a sale of minerals.
●Duration of lease- The right to enjoy the property must be transferred for a certain time, express or implied or in perpetuity. The lease should commence either in the present or on some date in future or on the happening of some contingency, which is bound to happen.
●Consideration- The consideration for lease is either premium or rent, which is the price paid or promised in consideration of the demise.
●Sub-lease- A lessee can transfer the whole or any part of his interest in the property by sub-lease. However, this right is subject to the contract to the contrary and he can be restrained by the contract from transferring his lease by sub-letting. The lessee can create sub-leases for different parts of the demised premises. The sub-lessee gets the rights, subject to the covenants, terms and conditions in the lease deed.

What are the essentials of exchange under TPA?

When two people mutually transfer ownership of one thing for ownership of another thing, and neither of the things could be money or both of the things could be money, is known as exchange.
●Ownership- The person shall be exclusive owner of the property.
●Subject matter- It is applicable to both movable and immovable property.
●Mode of transfer- Money in one form may be exchanged for money in
another form.

What are the essentials of gift under TPA?

●Parties- The person giving the gift is donor and person receiving the gift is donee.
●Subject matter- It should be existing property and capable of identification. A future property cannot be a gift. It can be movable or immovable property.
●Consideration- The transfer should be without consideration and voluntarily.
●In case of an immovable property it shall be registered and attested by 2 witnesses.
●The transfer should be accepted by the donee in the lifetime of the donor.
If the donor dies before the acceptance, the gift is void.

In A Nutshell

●The Transfer of Property Act, 1882 is applicable only to immovable properties and not to movable properties.

●Immovable property includes, land, benefits arising out of that land and things attached to that land.

●Timber, standing crops and grass are treated as movable property.

●The transfer of immovable property shall be made between 2 legal persons who are competent to enter into contract for a lawful consideration.

●There are 5 modes of transfer- sale, mortgage, lease, exchange and gift.

●Sale, mortgage and lease are applicable only to immovable property while exchange and gift is applicable to immovable and movable property both.

Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( Disclaimer)

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The Indian Easements Act, 1882

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