In this article we will learn about the persons who are competent to transfer property under the transfer of property Act and will decrypt each and every term that the legislature has enacted in the provisions dealing with this part of law.
Provision of law
The transfer of property Act 1882 was enacted by the Parliament of India on the 17 Feb 1882 and it came into force on the first day of July, 1882. It is an Act to amend the law relating to the Transfer of Property by act of parties. It contains a total of 137 sections, 8 Chapters,
Applicability of the Transfer of Property Act
It is pertinent to mention that the transfer of property Act 1882 specifically applies when the “transfer of property” is between persons and not a result by operation of law. For example: If Ram agrees to buy the property from Shayam the transaction will be governed by the Transfer of Property Act, 1882 but if he buys the property from an auction held by the bank towards execution of a liquidation decree issued by the court then it shall not be governed by the transfer of property Act.
It should also be noted that this Act is also not applicable when the transfer is a result of will or succession laws.
Who can transfer property under the Act?
The Transfer of property Act, 1882 in section 7 states:
Persons competent to transfer—Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.Transfer of Property Act“
This plain and simple definition contains terms such as “Competent to contract”, ” Transferable Property”, ” Authorized to dispose of transferable property” which must be studied in details:
Competent to contract
“Who is competent to contract?”
Section 11 of the Indian Contract Act, 1972 states that any person who is of the age of majority according to the law to which he or she is subject, is not of unsound mind and is not disqualified by any law for the time being in force is competent to contract.
The term “transferable property” means property that can be transferred. Section 6 of the Transfer of Property Act states that any property can be transferred except the following:
- The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
The expression Spes Successionis means mere chance, hope or possibility of succession. This was done to ensure that there’s no wagering on the mere possibility of an heir succeeding to an estate or a relation obtaining a legacy on death or even a mere possibility of similar nature have been excluded from the definition as to what can be transferred under the Act.
- A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.
In other words, Ram has leased his Apartment to Shyam for a period of 6 years. But under a condition that if the Apartment is damaged or any accident like fire occurs, Ram shall have the right to re-entry. One day, the Apartment is on fire. This is a breach of condition which is subsequent to the transfer and now the right to re-entry cannot be transferred.
- An easement cannot be transferred apart from the dominant heritage.
Easement refers to the ownership rights or right in re aliena. For example: Ram has the right to draw water from the Well. But he cannot transfer such a right alone under this Act unless he transfers the whole ownership right.
- All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
There are few rights that are so personal to the ownership of the property that it cannot be transferred. For example if Mona has lent a property to Sayan under a restriction that it is only for his personal use. He cannot further transfer such property to any third person.
- A mere right to sue.
The right to sue someone cannot be transferred. A entered into a contract with B to deliver certain goods. A has failed to perform the contract and B has the right to sue A for damaged. Now, B cannot transfer this right to sue to any person as it has been restricted under this provision of the Act.
- A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;
Any government or public job, nor any salary arising out of a public office or job can be transferred.
- Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.
Rohini is an officer of the Naval forces in India. Any perks or stipend arising out of such office cannot be transferred by Rohini under this Act.
- No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee;
For example a transfer of property for a consideration of Blackmail, theft, dacoity or murder is void because it is not in public interest.
Authorized to dispose of transferable property
Who may be authorized to dispose of transferable property?
Any person authorized under a Power of Attorney can have the power to dispose or alienate the property subject to the limitations laid down in section 6 of the Transfer of property Act and other laws in force for the time being.
Transfer by person not authorized to dispose of transferable property not his own is void ab initio by law and is incapable of subsequent ratification Kanchi Kamamma Vs. Y AAppanna AIR 1973 AP 201. This is because no one can deal with property which is not his own unless he shows that he has some right to do so either as an agent, guardian or trustee.
Roshan is an Indian Citizen living abroad in America. He authorizes Heena who is a resident in India to dispose or alienate his properties in India in his absence through a power of attorney. Now, Heena can transfer Roshan’s property and is Authorized to dispose off property that can be transferred within the meaning of section 7.
Transfer or Property Act UPSC Questions
Section 6 lays down that any property of any kind can be transferred barring a few exceptions.
Transfer of Property Act prescribes six modes of transfer i.e Lease, sale, exchange, gift, mortgage and by creating an actionable claim.
Yes. A Gift is a transfer of property as has been stated in section 122 of the Transfer of Property Act.
As per the provision of law any person who is capable of entering into a contract, and holds the right to transfer property either his own or authorized to transfer property not his own is capable of transferring property.
A transfer by a lunatic of his property is void. A lease of property granted by the lessor at a time when he was mentally unstable and incapable of understanding the effect of the transaction is void- Amina Bibi v Saiyed Yusut AIR 1922 All 449
It is a settled principle of law that a minor is incapable of contract. A minor’s transfer of property is not only voidable but void. As was held in the case of mohiri bibi vs Damordar Das.
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