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| TRANSFERABILITY OF PROPERTY IS GENERAL RULE ITS NON TRANSFERABILITY IS AN EXCEPTION”.-ANALYSE. |
TRANSFERABILITY OF PROPERTY IS GENERAL RULE ITS NON TRANSFERABILITY IS
AN EXCEPTION”.-ANALYSE.
SYNOPSIS
STATEMENT OF PROBLEM
Clause (a) of section 6 of the Transfer Of
Property Act excludes mere chance of an heir apparent of succeeding to an
estate from the category of transferable property. The technical expression for
such a chance is ‘Spes Successionis’. During the lifetime of a person, the
chance of his heir apparent succeeding to the estate or the chance of a
relation obtaining a legacy under his will is a ‘Spes Successionis’(chance of
succession). Such expectancy does not amount to an interest in property and
cannot be made the subject matter of a transfer. The paper aims at analyzing
the position of the same while looking at a case study to understand why this
is an exception to the general rule and how it is different from other cases of
a like nature.
RESEARCH OBJECTIVES
1.To analyze and understand in this project, and seeks to differentiate between the types of property that may be transferred from the non-transferable type.
2. To know about the discretion of the courts
regarding if any loopholes found later on while incorporation a company by a
promoter.
3. To understand the nature of work and it is essential to understand the connection that exists between the
transfers of property.
4. The focus of this paper would
be on the provisions of the Act, with close reference to the relevant section
of the Code, in trying to understand the nature of property in general, thereby
trying to answer the specific question of whether or not all property is
transferable.
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| QUESTION & ANSWER |
RESEARCH QUESTIONS
1. What is property?
2. In how many category property can be
classified?
3. What do we mean by transfer of property and
what are the elements?
4. Does Transfer of Property Act 1882 cover both movable & immovable
property?
5. How many kind of transfer? When Transfer of
Property Act 1882 not amounting to transfer of Property?
6. What is Spec Successions?
RESEARCH METHOD
Methodology” implies more than simply the methods the researcher used to
collect data. It is often necessary to include a consideration of the concepts
and theories which underlie the methods. The methodology opted for the
study on the topic may be Doctrinal.
Doctrinal research in law field indicates arranging, ordering and analysis of the
legal structure, legal frame work and case laws by extensive surveying of legal
literature but without any field work.
SOURCES OF DATA
The Secondary
sources:
· Books
(1). the Transfer of Property Act, 1882, Bare Act.
(2). SRA Rosedar, B.Com BL, Lexis Nexis, Property Laws (Transfer of
Property & Easements)
(3).Dr. Rao Surya Rega, Ph.D (Law), Lectures on Transfer of Property,
Asia Law House, Reprint 2016.
(4). Dr. Sinha R.K., Formerly, Head & Dean, Faculty of Law
University of Allahabad, The Transfer of Property Act, Central Law Agency, 18th Edition,2017.
(5). Shukla S.N., LL.M (Luck), The Transfer of Property Act [ACT NO. 4
OF 1882], Allahabad Law Agency, 29th Edition,2015
· Website
(4).https://www.quora.com/Does-Transfer-Of-Property-Act-1882-cover-both-immovable-and-movable-Property
· Dictionary-
CONCISE LAW DICTIONARY (LEXIS NEXIS)
FIFTH EDITION.
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| CHAPTER ONE |
CHAPTER 1:
INTRODUCTION
Selling is essentially a transfer of feelings – Zig Ziglar
Except as
specified in various clauses of s.6 of the act, property of any kind may be
transferred. Therefore, general rule is that property of any kind may be
transferred as laid down in s.6 and the person pleading non-transferability
must prove the existence of any usage or custom which restricts the right of
transfer. Clause (a) of section 6 of the transfer of property act discusses
the chance of an heir apparent to succeed to the property. A person having
interest which is spes successionis i.e. mere expectancy to
succeed to the property in future is not a right and is not capable of being
transferred. Such a person cannot bring a suit on the basis of such chance of
succession. Similarly, a gift of spes successionis is invalid
and confers no title on the donee.
Where the
transfer is not of the right of expectancy of an heir apparent but of the
property itself, it cannot be said to be a transfer of a mere chance to
succeed. Thus, when a person is not heard of for a long time and is believed to
be dead, an agreement to transfer the property, entered into by his brother who
is in enjoyment and possession of the property in dispute, is not a transfer of
the right of expectancy, but of the property itself and is not hit by cl (a) of
s.6.
It is
important to note the meaning of the word property as applied in the act.
Property has been given a rather wide spectrum covering both tangible material
things, e.g., land and houses as well as rights which are not exercised over
any material, e.g., a right to repayment of a debt. The word ‘transfer’ in the
Act has also been used in a wide sense. It may mean either transfer of all the
rights and interests in the property or transfer of one or more of subordinate
rights in the property. Thus, the expression ‘transfer of property’ may,
therefore, imply either transfer of things, transfer of one or more of the
rights in a thing, or transfer of a debt
From the above discussion, it is clear that, the expression transfer of
property as defined in section 5 is wide enough to cover any transaction which
has the effect of conveying property from one living person to another. Since
conveying of the property involves the creation of new title or interests in
favor of the transferee. That is to say, if new title or interest has not been
created in favor of the transferee, the property is not conveyed, hence no transfer
of property.
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| CHAPTER TWO |
CHAPTER 2:
PROPERTY
2.1 What is
property?
The term
property is derived from the Latin term ‘propertia’ which means ‘a thing
owned’. The term ‘property’ has different meanings. Any physical object or
thing is property. Any object which is owned is property. Property denotes a
proprietary right of a person but not a personal right.
The word ‘property’ is
a term of a wide connotation and in the Act, it has been seen in any of the
following senses:-
(1).Tangible
material things, e.g., land and houses.
(2).Rights
which are exercised over material things, e.g., right to enjoy and possess,
right to sell or to make a gift of things.
(3).Rights
which are not exercised over any material, e.g., a right to repayment of a
debt.
2.2 Category
of property classified
The property
can be classified in to two categories.
(1).Immovable Property (excluding standing timber, growing crops, and
grass)
(2).Movable Property
Movable Property
"Immovable property" includes land,
buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or
any other benefit to arise out of the land, and things attached to the earth or
permanently fastened to anything which is attached to the earth, but not standing
timber, growing crops nor grass. ”immovable property" shall include
land, benefits to arise out of the land, and things attached to the earth, or
permanently fastened to anything attached to the earth.
Movable Property
In civil law systems, personal property is often
called movable property or movables – any property that can
be moved from one location to another.
1.The movable property can easily be transported from one place to
another, without changing its shape, capacity, quantity or quality.
2. Examples: vehicles, books, utensils, timber, etc.
3. Mango trees, if cut and sold for timber purpose, are deemed as
movable property.
4. Contract for cutting the bamboos and collection of beedi leaves
for orvesjear comes under movable property.
5. The movable property need not be registered under the Indian
Registration Act, 1908. It is purely optional.
6. The movable property is liable to sales tax, and Central sales
tax, subject to certain restrictions and conditions under the Andhra Pradesh
General Sales Tax Act, 1957 (or the State concerned) and the Central Sales Tax
Act, 1956.
7. Mere delivery with intention to transfer the movable property
completes the transfer.
8. Movable property does not form an accretion to an ancestral impartibly
estate. (Case-law: Thakur Hari Singh vs. Commissioner of Income-tax (AIR
1968 Raj. 5).
2.3 What do
we mean by transfer of property & its elements?
The requirements to be met as per
Section 5 are four in number.
Transfer must be by a living or
juristic person.
A juristic person was defined in the case Shiromanigurudwara Prabhakar committee, Amritsar v.
Sri SomnathDass. In this case the
court said that a juristic person can be an individual, firm, corporate
company, association, society, not including partnership firm. Any individual
who can sue or be sued under law would satisfy this requirement.
The transfer must be through a
conveyance.
Thirdly, the property itself must be
transferred.
Fourthly, it must be made
to a living or a juristic person.
2.4 Does Transfer of
Property Act 1882 cover both movable & immovable property?
Chapter II (S.5-S.53A) of
the Act lays down the general law n respect of property and can be interpreted
to be applicable to both Movable as well as Immovable property subject to the
express language of the section concerned. For instance S.6 talks about both
movable as well as immovable properties. Similarly S.25 (Conditional Transfer)
also applies to both movable and immovable properties. Look at it this way.
Since S.5 while defining the expression “Transfer of Property” uses the word
“property” (without qualifying with any adjectives like “movable” or
“Immovable” It makes us path clear to safely assume that the entire act applies
to both movable as well as movable properties.
2.5 Kind of transfer? When
Transfer of Property Act 1882 not amounting to transfer of Property?
Here we
will discuss the different types of transfers mentioned in the TP Act.
In addition, we will also look into License as provided under Sec. 52
of Indian Easement Act, 1882, which is many times confused with lease and
erroneously used.
1. SALE
According
to section 54 of the Transfer of Property Act, Sale is a transfer of ownership
in exchange for a price paid or promised or part-paid and part-promised.
In a sale, there is an absolute transfer of all rights in the property sold.
MODE OF TRANSFER BY SALE
There are
only two modes of transfer by sale, that is: (i) by the
registered instrument; and (ii) delivery of possession.
A transfer by sale of tangible immovable property of the value of one hundred
rupees and upwards can be made only by a registered instrument.
2. MORTGAGE
Section 58 of Transfer of
Property Act defines
a mortgage as the transfer of an interest in a specific immovable property for
the purpose of securing the payment of money advanced or to be advanced by way
of loan, an existing or future debt or the performance of an engagement which
may give rise to a pecuniary liability. Thus, a mortgage is a transfer of an
interest in specific immovable property as security for the repayment of a debt.
The
transferor is called mortgagor, the transferee a mortgagee; the principal money
and interest of which payment is secured for the time being are called the
mortgage-money, and the instrument (if any) by which the transfer is effected
is called a mortgage-deed.
3. EXCHANGE
Section 118 of the Transfer of
Property Act provides
that when two persons mutually transfer the ownership of one thing for the
ownership of another, neither thing nor both things being money only, the transaction
is called an Exchange. The definition of the word exchange is not limited to
immovable property. Exchange is not only exchange of lands but also barter
of goods. In Harish Chandra v. Chandra Shekhar (AIR 1977 All 44).
4. GIFT
Section 122 of the Transfer of
Property Act 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.
Such acceptance must be made during the lifetime of the donor and while he is
still capable of giving. If the donee dies before acceptance, the gift is
void. A gift of immovable property to a minor is complete when it
is accepted by a person on behalf of the minor and appends his thumb impression
on the gift-deed in token of acceptance.
5. LEASE
Section 105 of the Transfer of Property Act lays down that a lease of
immovable property is a transfer of a right to enjoy such property, made for a
certain time, express or implied, or in perpetuity, in consideration of a price
paid or promised, or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified occasions to the transferor
by the transferee, who accepts the transfer on such terms. The transferor
is called the lessor, the transferee, is called the lessee, the price is called
the premium, and the money, share, service or other thing to be so rendered is
called the rent.
Transfer of Property Act, 1882 not amounting to Transfer of Property
As the transfer of property’ means ‘conveying of
property’, i.e., creation of new title or interest in the favor of
the transferee, if new title or interest has not created in favor of
transferee , the property cannot be said to be conveyed, thus no transfer of
property.
1. Partition-
As nothing new is obtained by a co-sharer on partition, it is not a transfer of
property. His specific share, which vested in him earlier, is simply separated.
2. Relinquishment:—it
is an extinction of a right and therefore, there is nothing left to transfer.
Thus a relinquishment (The act of giving up and abandoning a struggle or task)
by a reversionary of his reversionary interest does not amount to transfer. But
if the person in whose favor the ‘release’ is executed, gets certain
rights by virtue of such release, the transaction may amount to a transfer
4. Surrender.—it
is not a transfer as it is the manager of a lesser estate with a greater one.
5. Easement.—the
creation of an easement (the privilege of using something that is not your own)
does not amount to a transfer.
6. Will.—Because
it operates from the death of the person making it, while the definition
contemplates a transfer by a living person, does not fall within the definition
of transfer.
7. Compromise.—it
may or may not amount to transfer. It depends on the facts and circumstances of
each case. In Hussiaa Banu v. Shivanarayan, (AIR 1968 MP 307)
8. Family
arrangement/settlement. — A family settlement entered into by the parties for
the purpose of putting an end to the disputes among family members does not
amount to transfer, not being an alienation it does not amount to the creation
of an interest.
2.6 Spec Successionis
An expectation of succeeding to property. It is not a title, but adventurous lenders may see it as a form of comfort. Spes successionis within the meaning of Section 6 of the Act: The
things referred to in this Sub-section as non-transferable are the chance 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.
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| CHAPTER THREE |
CHAPTER 3:
PROPERTY of ‘ANY KIND’ MAY
BE TRANSFERRED
3.1
Property of ‘any kind’ may be transferred
The
Transfer of Property Act, 1882 (hereinafter, the Act) is a civil
legislation of immense importance owing to the vast number of property related
transactions taking place throughout the country. A uniform legislation was the
need of the hour considering this factor, and this act was drafted to serve the
selfsame purpose. It is important to note the meaning of the word property as
applied in the act. Property has been given a rather wide spectrum covering
both tangible material things, e.g., land and houses as well as rights which
are not exercised over any material, e.g., a right to repayment of a debt. The
word ‘transfer’ in the Act has also been used in a wide sense. It may mean
either transfer of all the rights and interests in the property or transfer of
one or more of subordinate rights in the property. Thus, the expression
‘transfer of property’ may, therefore, imply either transfer of things,
transfer of one or more of the rights in a thing, or transfer of a debt.
3.2 Transferable Property & attachment – a Critical Overview
Section 6 of the Act explains the nature of the
property liable to be transferred under the said provision.
In general "property of any kind may be
transferred'. There is however, a series of exceptions to this, as enumerated
under sub-sections (a) to (i), explained hereafter. It is interesting to note
the distinct similarity between these sections and those made by Section 60 of
the Civil Procedure Code as to the property which cannot be attached in the
execution of a decree. Although there is this similarity yet there is a
difference between the exceptions made in this section and exceptions made in
Section 60. Certain things such as tools of artisans and necessary cooking
vessels can be transferred, yet they, under Section 60 of the Code cannot be
attached. Apart from the exceptions made by the present section there are
certain restrictions imposed by other laws on the power of transfer. For e.g.,
restrictions in Hindu law against the transfer of coparcenary property.
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| CHAPTER FOUR |
CHAPTER 4:
CASE STUDY
4.1 Shiromanigurudwara Prabhakar Committee, Amritsar v. SomnathDass
Fact of the case - In this case the court said that a juristic
person can be an individual, firm, corporate company, association, society, not
including partnership firm. Any individual who can sue or be sued under law
would satisfy this requirement.
4.2 Harish Chandra v. Chandra Shekhar AIR 1977 ALL 44
Fact of
the case - It was held that a release-deed is a conveyance, hence a
transfer of property. If the release deed states that the releaser was the
owner and it shows an intention to transfer his title and its operative word
sufficiently was the conveyed the title it would amount to transfer.
4.3 Hussia Banu v. Shivanarayan AIR 1968 MP 307
Fact of the case - it was held that where one of the parties to
a settlement gives up a claim to receive a certain sum of money from the other,
in consideration of the latter’s given up the right to certain property claimed
by him, it would amount to a transfer.
4.4
Karpagathachi v. Nagarathinathachi
Fact of
the case & judgment - , two-widows had divided the husband’s
property into two shares and took possession of respective shares. Under the
partition deed each widow gave up her life interest. When one of the widows
died her daughter took over the possession. The other widow filed a suit
against the daughter claiming for the share, which is in possession of the
daughter of the other widow. The court held that each widow transfer her right
of survivor ship according to section 6(a) of transfer of property act.
Charge cannot be transferred because it is a right, which is a part of
property. Compromise cannot be transferred. Easement cannot be transferred
because these are the rights or interest arising of land, which is a part of
the property but cannot be transferred. Family arrangement may be transferred.
A will cannot be transferred because it does not operate by act of parties.
Auction sale cannot be transferred because property is in possession of
another.
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| CHAPTER FIVE |
CHAPTER 5:
CONCLUSION &
SUGGESTION
It is thus of crucial importance that these
concepts are well understood by both lawyers and the parties concerned. This
project has attempted to bring out such distinctions as were found relevant for
the present discussion, and the more important portions of such
legislation have been incorporated for the purpose of a meaningful
analysis of the issues at hand. I have tried my best in this research work that
the discussion ushered in this paper will go the distance in clarifying the
murky areas of these pivotal provisions.
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| TRANSFERABILITY OF PROPERTY IS GENERAL RULE ITS NON TRANSFERABILITY IS AN EXCEPTION”.-ANALYSE. |
I have tried to incorporate the difference in
position in this regard between the said provisions of the Code and the Act,
illustrating how though the conceptual similarity is apparent on the face of
the matter, there is a great difference in terms of the meaning and content of
the two statutory provisions. Also, it has been concluded that though in
general, ‘all property may be transferred’, this is subject to the exceptions
mentioned in Section 6(a) to (i) of the Act. Thus, one may safely assume that,
due regard being given to such exceptions, expressly mentioned in the Act, transfer
of all other categories of property is possible and this Act is in furtherance
of the selfsame objective of arriving at the desired level of uniformity in
terms of regulating property issues throughout the length and breadth of this
diverse nation.
Thanks & Regards
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