Nature and Scope of Transfer of Property Act, 1882

INTRODUCTION

The concept of transfer of property, is something which has been in existence from times immemorial. It includes various aspects such as exchange of property, gift of property, sale of property, etc. A suitable law relating to all these aspects is essential as it is something of a very pervasive nature.

When the British came to India, and decided to explore different areas in India, they tried to understand how people deal with their land. That is when they came across the fact that there is an abundance of disputes regarding property. They realized that there is a need for a proper framework regarding property, defining and describing various things in this domain of law. They found that there is, (a) lack of rights of properties, (b) lack of remedies for people who’ve been wronged, and, (c) absence of an officially established procedure. The British Government had a discussion with several landlords, and set up a Law Commission in the United Kingdom to set up property law in India and it was circulated amongst the various landlords and people in India for reviews in 1876. In 1882, finally, the TOPA was introduced in India frames under the leadership Sir Charles Turner, with 8 chapters and 120 sections.

The property law came into force in Goa and Daman and Diu, in November 1965, and has been in existence ever since.[1] The provisions of the Act have been applicable in the Travancore area from July, 1975.[2] Where, in Punjab and Rajasthan, and Bihar, it was applied after 1964[3], 1963[4], and 1969[5], respectively.

NATURE AND SCOPE OF THE ACT

The Transfer of Property Act, 1882 (TOPA) is the primary act which regulates the transfer of property in India. It has a wide purview and it includes majority of the various facets related to transfer of property. Transfer of property is defined in Section 5 of the Act, as, “In the following Sections, ‘transfer pf 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][6], and one or more other living persons; and ‘to transfer property’ is to perform such act.[7]

The nature of the Act is Civil; hence, a person would be civilly liable for committing a wrong under this act, and would be liable to pay compensation to the party wronged.

Scope of the Act is enumerated in the following points:

1. Living Persons: The transferor and transferee should be living persons in the conveyance to be a transfer as defined in this section. A dedication to God or an idol is not a transfer to a living person.[8] This includes corporations as well.
2. Applicability: Section 1 of the Act reads that, “it extends in the first instance to the whole of India except the territories which, immediately before the 1^st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.” This implies that, it applies to all part of India except the part-B territories, namely, States of Bombay, Punjab and Delhi. Hence, we can say that its scope is limited.
3. Not Exhaustive: TOPA is not exhaustive and it is evident as it is elucidated in its preamble. The word ‘consolidate’ is omitted from being included in the preamble, and there are, a numerous type of properties that the Act does not include and their transfer is not regulated by the Act.
4. Immovable Property: This Act predominantly deals with the transfer of immovable property; immovable property is covered to a very less extent. Movable property is mostly dealt with in Sale of Goods Act, 1930.

In addition to that, Muslim law is exempted from the TOPA. Therefore, if there is a property dispute, Muslim Personal Law will prevail over the Act.

MEANING OF TRANSFERABLE PROPERTY

Section 6 of the Act, titled, “What may be transferred?” defines the types of transferable property. This section basically defines what cannot be transferred. The wordings of the section go as, “Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.” It then further goes on to define what types of property may not be transferred. It is as follows:

1. Chance of an heir apparent: ‘Spes successionis’ in the Section 6 of TOPA are which are described in this section as ‘non-transferable’ are the properties which have the possibility of an heir succeeding to an estate, the chance of a relation obtaining a legacy (a gift by will) on the death of a kinsman, and any other mere possibility of a like nature. In other words, it means that a property cannot be transferred just on the context of a mere possibility that one might acquire it as an heir on any off-chance. For example: If A is next in line to retrieve X’s property after his death, and if he transfers such property, the transfer would be invalid.
2. A right of re-entry: A right of re-entry is an owner’s right to enter upon his property when it is not in his possession. It is generally found in lease agreements, typically used when there is a delay in payment of rent, and the owner wants to inquire about it. Sub-section (b) of section 6 states that the right of re-entry, cannot be separated from the ownership of the property. For example, if A’s property is leased out to B, the right to re-enter the land cannot vest in some other person, until and unless the property is transferred to him.
3. Easement: Easement is the right to use, or restrict the use, of land which ordinarily falls in the way of one’s passage. Example, If A lives in a house, and to get out of his house he needs to cross B’s property. Right of easement is not transferrable. A person cannot transfer such right to use someone else’s property to a third person.
4. Interest Restricted to personal enjoyment[9]: This clause enumerates that anyone cannot transfer an interest restricted in its enjoyment of him. A transfer of such interest would defeat the object of the restriction. As an example, if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment to another. Under this clause, the following kinds of interest have been held not to be transferable: —

(a) A religious office

(b) Emoluments attached to priestly office. Where, however, the right to receive offerings made at a temple is independent of an obligation to perform services involving qualifications of a personal nature, the right is transferable.

(c) A right of pre-emption

(d) Service tenures.

5. Right to future maintenance: A right to future maintenance is something which is only for the individual advantage of the person to whom it is granted and, that is why, it’s not transferrable. Right of future maintenance has been a conflicted topic before the insertion of this Sub-section in 1929, about whether the right to future maintenance when it was fixed by a decree was transferable. But finally, it was observed that the assignment of a decree for maintenance is valid if the maintenance has already become due but as to future maintenance it is not valid.
6. Mere right to sue Offices and salary Transfer opposed to the nature of interest Non-transferable interest: A mere right to file a suit, in respect of any damages, say, for breach of contract, or for tort, cannot be transferred. The purpose of this was mainly to avert gambling in litigation. Example: A and B get into a contract. On the due date, A fails to perform as per the contract, and B suffers a loss of 5000 rupees. B cannot transfer the right to recover the damages to C. Such a transfer would be invalid. A public office cannot be transferred, nor the salary of public officer[10].

Pension is non-transferable, as long as it is unpaid and in the hands of the government, but the moment it is paid to the pensioner of his legal representative, it can be attached of transferable.[11]

7. Transfer opposed to the nature of interest: This sub-section prohibits transfer (1) such that putting the transfer in effect would be against to the interests of parties affected thereby, (2) would involve unlawful object or consideration, and (3) involving a party who is disqualified by law to be a transferee.
8. Non-transferable interest: The sub-section (h) of Section 6 of the Act is same as the proviso in Sub-section (i) of Section 108 of this Act. The same was inserted by the Amendment Act, 1885 to eliminate any uncertainty which might come up because of the fact that section does not principally apply to leases for agricultural reasons. Under this rule, a tenant having a non-transferable right of occupancy cannot alienate or assign his interests in the occupancy. For example, an agriculturist of an estate, in regards of which the revenue has been defaulted, cannot assign his interest in the field.

Thus, any property which is free from the above-mentioned encumbrances and does not cause an impediment, is transferable property under the Transfer of Property Act, 1882.

KINDS OF TRANSFERABLE PROPERTY

The distinction of types of property can be done on various basis. They are as follows:

1. Nature: This classification is on the basis of form of existence of a property.

(a) Movable and Immovable property: Movable property is property which can be moved from one place to another. For example, cars, jewellery, etc. Immovable property on the other hand, is incapable of being moved. Example, house. According to Section 3 of TOPA, it does not include standing timber, growing crops, and grass.

(b) Tangible property and Intangible property: Tangible property is the type of property which can be seen, touched, and felt. Intangible property is property which cannot be seen touched, or felt. Question in this accord arises in case of tangible property being a commodity.

(c) Corporeal and Incorporeal: It is almost similar to tangible and intangible, but incorporeal property is the type of property which cannot be seen, but its value can be determined. Example, trademark, patent, etc.

(d) Realty Property: It is the real property. It grants property owners the ability to use their property as they see fit.

(e) Personality Property: This is the property which is personal and mobile. For example, clothes, vehicle, etc.

2. Purpose: This classification is on the basis of accessibility, ownership, requirement of restrictions. The types of properties under this classification are Public and Private.

The reasons for this particular distinction are, (i) establishing the nature of rights of parties, (ii) it helps in keeping land records of title of land due to which laws of ownership apply, and (iii) for the purpose of deciding the brokerage of the area.

There also exists Unclaimed Property, which is neither private, nor public. 5-8% of the property in India is unclaimed.

3. Object of Use: This classification is based on why a particular property has been acquired, either to build upon, or for open use, etc.

For the specific purpose of the Act, types of Transferable Property have been more accurately defined as under:

1. Constructed and Non-constructed: Constructed land is further divided into Domestic (example, bungalow, farmhouse, etc.) and Commercial (example, malls, offices, etc.)
2. Agricultural Land and Non-agricultural Land (land which gets Non-Agriculture Order).
3. Watery Land: Generally, in coastal states, and where majority of private property comes under water.
4. Hills

These were a few types of transferable properties for the purpose of the Act.

We would like to conclude by saying that the nature of the Transfer of Property Act is civil, and its scope is quite wide but limited in terms of territorial application and types of property. Apart from that, transferable property defined in section 6 of the Act is any property, apart from the ones excluded in the subsequent sub-sections, and there are various types of properties classified on different basis, which have been elucidated above.

[1] Sazro Govind v. Malba Madeva, AIR 1969 Goa 42

[2] Laxmi Pillai v. Eswara Pillai, AIR 1977 Ker

[3] Grain Chand v. Ratan Lal, AIR 1964 Punj 210

[4] Champalal v. Rameswara, AIR 1967 Raj. 233

[5] Channu v. Usharani AIR 1960 Pat. 331

[6] Inserted by Transfer of Property Amending Act, 1929

[7] Section 5, Transfer of Property Act, 1882

[8] G.C.V. Subba Rao, 2 Law of Transfer of Property (5^th ed.).

[9] LawTeacher. November 2013. Property of ‘any kind’ may be transferred. [online]. Available from: https://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php?vref=1 [Accessed 26 July 2018].

[10] Liverpool v. Wright (1859) 28 LJ Ch 8G8

[11] Saundariya Bai v. UOI, AIR 2008 MP 227