CHAPTER 1 – INTRODUCTION

1.1: INTRODUCTION TO TRANSFER OF PROPERTY ACT

The Transfer of Property Act, 1882 happened to be one of the early legislations of the
nineteenth century. The Act is having an important place in the statute book with the main
objective to render the system of transfer of immovable property a system of public transfer.
Registration is therefore generally insisted upon for completing transfer, except in cases of
transactions of small value. Property is a very wide term and would include anything which
carries some value and over which the right of ownership may be exercised. The word
property in its most comprehensive sense includes all legal rights of a person except his
personal rights, which constitute his status or personal condition.' Under English law,
property is generally classified into real property and personal property. Real property
comprises of all properties admitted to specific recovery and is freehold interests in land.
Property in respect of which only a personal action lay was classified as personal property,
i.e., which comprised of all forms of property other than real property. 1

The Transfer of property Act was enacted in order to regulate the transfer of property
between two living persons which was earlier governed by the principle of justice, equity and
good conscience.

1
14.139.60.114:8080/jspui/bitstream/123456789/738/21/Property%20Law.pdf

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1.2: MEANING AND DEFINITION OF TRANSFER OF PROPERTY

Transfer of Property in simple terms means moving or shifting of a property from one person
to another. Transfer of property includes transferring of ownership or title from one person to
another.

Transfer of Property has been defined under Section 5 of the Transfer of Property Act, 1882
which says “transfer of property” means an act by which a living person conveys property, in
present or in future, to one or more other living persons, or to himself and one or more other
living person, and “to transfer of property” is to perform such act.2

In this section “living person” includes a company or association or body of individuals,

whether incorporated or not, but nothing herein contained shall affect any law for the time
being in force relating to transfer of property to or by companies, associations or bodies of
individuals.

2
Sinha R.K.; ‘The Transfer of Property Act’ Page No: 49

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1.3: SCOPE OF TRANSFER OF PROPERTY ACT

The Transfer of Property Act extends to the whole of India except the state of Bombay,
Punjab and Delhi. It has no uniform application in all the parts of the country. The Act is not
exhaustive because it does not contain complete law for all kinds of transfers in India.
Transfer of Property Act covers only a specific mode, namely, transfer of property between
living persons.

Transfer of Properties may take place either by act of parties or by operation of law.
This Act does not apply to transfer by operation of law. Moreover Transfer of Property Act
deals only with regards to transfer of immovable properties. Transfer of movable properties is
regulated by the Sales of Goods Act, 1930.With regards to all these points the scope of
Transfer of Property Act is limited; it is not a complete code of transfer of property.

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 CHAPTER 2 – HISTORY OF THE ACT

2.1: PRIOR TO BRITISH RULE

Prior to the British Rule there was practically no law as to real estate in India. A few points
were covered by the Regulations and Acts which were repealed either wholly or in part by
section 2 of the Act. The classical law relating to transfer of property was purely customary.
Before the advent of the British and their active intervention in the Indian legal system,
Hindus and Muslims were governed by their respective law in relation to transfer of property.
This arrangement worked adequately in the informal and traditional judicial system of
panchayats because; those who decided the matter were not only familiar with the nature of
the dispute but also with the law and the litigants as well. But for the rest of the law, the
courts, in the absence of any statutory provisions, adopted the English law as the rule of
justice, equity and good conscience. This was not satisfactory, for the rules of English law
were not always applicable to social conditions in India, and the case law became confused
and conflicting. To remedy this state of affairs, Commission was appointed in England to
prepare a code of substantive law of India.3

3
Mulla, The Transfer of Property Act, Page No: 11

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2.2: DURING THE BRITISH RULE

With the establishment of the informal courts in India by the British Government the same
scenario proved to be very confusing and uncertain. Realizing the absence of a concrete and
ascertainable law of property comparable to what they had in England, these courts applied
English rules governing transfer of property with modifications, to suit the Indian conditions.
However, such application of the British principles even with modifications, at times, was
grossly inappropriate due to the social and cultural differences between England and India.
Thus, the desirability of enacting the law relating to transfer of property was perceived soon
after the consolidation of British authority in India.4

The first Law Commission was appointed by the British Queen primarily to
codify the civil law in India including the one relating to transfer of property. The Transfer of
Property Act, though drafted in 1870, was the last of these drafts to become law. The draft
was sent to India by the Duke of Argyll who was then Secretary of State for India, and after
some amendments, it was first introduced as a Bill in the Legislative Council in 1877. The
Bill was then referred to a Select Committee, by whom it was revised and circulated for
public criticism. In deference to this criticism, all matters not directly referring to transfers
inter vivos were omitted, some clauses, referring to trusts, powers and settlements were
dropped and other clauses were added with a view to save the provisions of local law and
usage. The Bill was thus redrafted and was referred to the Second Law Commission, 5 but no
less than seven Bills were prepared before the first Bill was introduced in the Legislative
Council by Mr Whitley Stokes and passed into law on 17 February 1882.5

4
shodhganga.inflibnet.ac.in/bitstream/10603/39900/6/06_chapter%202.pdf
5
shodhganga.inflibnet.ac.in/bitstream/10603/39900/6/06_chapter%202.pdf

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 CHAPTER 3 - TRANSFER OF PROPERTY WITH
REFERENCE TO OTHER LAWS

3.1: TRANSFER OF PROPERTY WITH REFERENCE TO HINDU LAW

Transfer of Property Act deals with transfer of property between two living persons. Both the
persons should be alive at the time of making such transfer. But in case of the succession
rules discussed under Hindu law transfer of property from one person to another takes place
after the death of the person leaving behind the property. Once a person dies leaving behind
his property, the property automatically gets transferred to his heirs under the Hindu Law and
in such case the transferor has to do nothing. However the transfer under the Transfer of
Property Act deals with the transfer made by the parties and not by the operation of law.

For example, in the case of inheritance or under wills the devolution of property upon the
legal heirs or legatees is a transfer by operation of law.6

6
Sinha R.K.; ‘The Transfer of Property Act’ Page No: 04

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3.2: TRANSFER OF PROPERTY WITH REFERENCE TO MUSLIM
LAW

Like the Hindu Laws the transfer of property under the Muslim Law is made by operation of
law which means that one party has to be dead at the time of making such transfer unlike the
transfer under the Transfer of Property Act which requires living persons.

According to Section 2 of the Act, provisions of Chapter II of this Act do not affect any
inconsistent rule of Muslim Personal Law. Chapter II of this Act deals with concept and
principles of transfers generally. Accordingly, if there is any provision in the Transfer of
Property Act which is against any rule of Muslim Law, the rule of Muslim Law would prevail
over the conflicting provisions of this Act.7

7
Sinha R.K.; ‘The Transfer of Property Act’ Page No: 05

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CHAPTER 4 – OBJECT OF THE TRANSFER OF PROPERTY
ACT

4.1: REGULATION OF TRANSFER OF PROPERTY BETWEEN TWO

LIVING PERSONS

The basic object of the Transfer of property Act was to regulate the transfer of property
between two living persons. There was a need for regulation of transfer of property between
two living persons as because before the enactment of Transfer of Property Act the transfer of
property took place without the existence of proper law and if any dispute arose it was looked
upon by the judicial system of panchayats or by the informal courts in India established by
the British Rule. However, the same scenario proved to be very confusing and uncertain
because of the conflicting views. The dispute was also solved by adopting the English rule of
justice, equity and good conscience which was not satisfactory as because the rules of
English Law was not always applicable to the social conditions in India. So there was a need
of a proper law in order to regulate such transfer between two living persons so that the
parties would be governed by such law if any dispute occurred.

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4.2: COMPLETION OF LAW OF CONTRACT

Another basic objective of the Transfer of Property Act is to complete the law of Contract
which means that the transfer of property between two living persons is being made after
fulfilling all the essentials of a valid contract. So the Transfer of Property Act makes
registration compulsory for a valid transfer and there should be a legal consideration which is
both the essentials of a valid contract.

No contract is made only for the sake of making. It is made for something to done or not to
be done. In contracts relating to properties, the purpose is to get the property or property
rights transferred. The purpose of such contracts cannot be fulfilled unless the property
concerned is transferred. Although for a contract there was already the Indian Contract Act,
1872, but for the transfer of property, there was no enacted law. Therefore, before 1882, the
Code of Contract was not complete. Thus, the Transfer of Property Act, 1882, completed the
code of Contract.8

88
Sinha R.K.; ‘The Transfer of Property Act’ Page No: 03

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 CHAPTER 5 – CONCLUSION

Thus it can be concluded saying that the Transfer of Property Act though it was enacted to
regulate the transfer of property between two living persons and it has also been successful in
regulating such transfers but however his Act is not exhaustive as because this Act is
applicable only to immovable properties and the scope of this Act is limited because there are
certain states in India like Punjab, Bombay and Delhi where this act is not applicable and this
states regulates transfer of property between two living persons by adopting the English rule
of justice, equity and good conscience.

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 BIBLIOGRAPHY

STATUTE

 Transfer of Property Act, 1882

BOOKS

 Sinha R.K.; ‘The Transfer of Property Act’, Seventeenth Edition, Published by

Central Law Agency.
 Mulla, The Transfer of Property Act, 10th Edition, Lexis Nexis Butter Worth

WEBSITES

 14.139.60.114:8080/jspui/bitstream/123456789/738/21/Property%20Law.pdf

 shodhganga.inflibnet.ac.in/bitstream/10603/39900/6/06_chapter%202.pdf

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