INTRODUCTION TO TRANSFER OF PROPERTY ACT OF  1882

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INTRODUCTION TO TRANSFER OF PROPERTY ACT OF  1882

QUESTION BANK.
  1. 1. Explain the scope and object of the Transfer of Property Act.
  2. 2. Discuss the object and scheme of the Transfer of Property Act.
SHORT NOTES.
  1. Transfer of Property Act applies to inter vivos transfers, Explain.
Table of Content

I Historical Background:- 11

  1. Scope and object of the Act:- 12

(1) The Act applies to inter vivos transfers:- 12

(2)  The Act mainly deals with the transfer of immovable properties. 12

(3)  Muslim personal law will prevail in conflict:- 12

(4). T.P. Act is parallel law to the existing testamentary and intestate transfer:- 12

(5) The Act not exhaustive:- 13

III. Scheme of the Act:- 13

I. Historical Background:-

          Before the Transfer of Property Act came into existence in 1882, the transfer of immovable property in India was governed by the principles of English law and of equity. In the absence of any law on the transfer of immovable property, courts used to follow the rules of English law on real property and principles of justice and fair play. It resulted in confused and conflicting case laws. To avoid conflicting and confusing legal positions on the transfer of immovable property, a law commission was appointed in England to prepare a substantive law code for the transfer of properties in India. The bill was passed into law, and The Transfer of Property Act came into force in 1882 (henceforth, for the sake of brevity, “The Transfer of Property Act, 1882” is called “the Act”). The Act has been amended a number of times so far.

II. Scope and object of the Act:-

          The object and scope of the Act can be summarised in the following points:-

(1) The Act applies to inter vivos transfers[1]:-

The Act applies to the transfers of property between living persons, i.e. inter vivos. In other words, the Act applies to the transfer of property by one living person to another living person. Thus, it does not cover the transfer of the properties by operation of law. Transfer of property by operation of law means the transfer of property by way of testamentary (i.e. by will) or intestate (i.e. by operation of personal law of succession or personal law dealing with inheritance). Similarly, the transfer of property by order of the court is a transfer by operation of law.

(2)  The Act mainly deals with the transfer of immovable properties.

               The Act mainly deals with the transfer of immovable properties. However, Chapter II from Ss. 5 to 37 contains provisions that apply to the transfer of both movable and immovable properties. The Sale of Goods Act 1930 mainly deals with the transfer of movable properties or goods.

(3)  Muslim personal law will prevail in conflict:-

               If there is any provision in the T.P.Act that is contradictory to the rules of Muslim law, the rules of Muslim law will prevail over the conflicting provisions of the Act. Thus, according to S. 129 of the Act, provisions of the Act relating to gifts are not applicable to the gifts made by Muslims. This is because the gifts given by Muslims are governed by the Muslim law of Hiba.

(4). T.P. Act is parallel law to the existing testamentary and intestate transfer:-

               By making provisions for inter vivos transfers, the T.P. Act has provided a law parallel to the already existing laws of testamentary and intestate transfers. The Act has laid down definite, clear and uniform law for the transfer of immovable property by the act of parties.

(5) The Act is not exhaustive[2]:-

The Act is not exhaustive. It does not contain complete laws for all kinds of transfers in India. There are several kinds of properties and several modes of transfer. The Act does not deal with all of them. The preamble of the Act itself makes it clear that it is not exhaustive.[3]. The Act does not say that the object of its enactment is to collect and consolidate all the laws relating to the transfer of property in India. Even concerning transfers among living persons, the Act is not exhaustive. This is because, even in the case of transfer among living persons, there are several allied or correlated matters for which there are no detailed provisions, just passing references. e.g., provisions relating to mortgage and charges. Similarly, although the easementary rights are proprietary rights, the T.P.Act does not apply to easements.

III. Scheme of the Act:-

The general scheme of the T.P.Act is given below:-

Transfer of Property-

(A) By Act of parties-

(1) Inter Vivos (Transfer of Property Act 1882)

  1. a) Transfer of Property, whether movable or immovable (Ch. II, Ss. 5 to 37 and Ss. 122 to 137)
  2. b) Transfer of Immovable (Ch. II Ss. 38 to 53 A and Ch. III)

          (i) Sale (Ch. III Ss. 54 to 57)

(ii) Mortgage and Charges (Ch. IV Ss. 58 to 104)

          (iii) Lease   (Ch. V. Ss. 105 to 107)

(iv) Exchange    (Ch. IV Ss. 118 to 121)

            (v) Gift (Ch. VIII Ss. Ss. 122 to 129)

           (vi)Transfer of Actionable Claim (Ch. VIII Ss, 130 to 137)

       (2) Non-inter vivos

(a) Testamentary (E.g. Indian Succession Act, Hindu Succession Act,                                         Mohammedan Law, and other personal laws.)

(b) Intestate-

(B) By Operation of law (E.g. Succession, Insolvency, Auction by order of Court etc.)*****

[1] “संपत्ति हस्तांतरण अधिनियम” जीवित व्यक्तियों के बीच संपत्ति के हस्तांतरण पर लागू होता है|

[2]  अधिनियम संपूर्ण नहीं है

[3] i.e. the main purpose of the Act is to ‘define and amend certain parts of the pre-existing law of transfer of property by act of parties.

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