In India, the property gets divided into two parts- movable and immovable property. The Transfer of Property Act, 1882, being age-old legislation, deals with the transfer of property between living beings; the act came into force on 1st July 1882. The act gets seen as an extension of the Law of Contract and runs parallel to the succession laws.
The Transfer of Property Act, 1882 deals with specific transfers related to immovable property and general principles related to movable and immovable property transfers.
The transfer, in general, refers to things conversion from one person to another and property is defined as a physical or virtual entity that an individual or group of people owns.
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BACKGROUND OF THE TRANSFER OF PROPERTY
Before the British Era in India, Hindus and Muslims were governed by their laws to transfer property.
But when Britishers came to India, they took active participation in the Indian Legal System. Initially, they established informal courts without clean and concrete laws that were absent compared to England’s law. Thus, the High Court advised creating laws related to the transfer of property.
The privy council also advised the authorities that the principle of a good conscience, equity and natural justice has many uncertainties, and immediate action was required.
To solve the issues, the then Queen Elizabeth II appointed the First Commission. After certain amendments were sent to India, the commission prepared a draft and introduced it in the legislative council in 1877. It was sent to the selection committee, where it got rejected due to public criticism.
The bill got redrafted by the Second Law Commission, in which some of the provision was borrowed from English Law on Real Property, i.e., The Law of Conveyancing and Property Act, 1881. This time, the law got shaped to suit the Indian Population that the Indian Non-Professional Judges would easily understand.
Despite various amendments by the Second Commission, there was the expansion of the law. Therefore, a special committee was appointed to amend the act. Various amendments were made to expand the scope and to exist or clear the existing errors.
SCOPE OF TRANSFER OF PROPERTY ACT
The transfer of property act is primarily applicable to transferring immovable property from one human being to another. It is also applicable to the transfer of property by individuals or by companies.
The act is only applicable to acts of parties, i.e. sale, leases or mortgage, exchange, gift or actionable claims, and not to transfer of property applicable by law, i.e. it does not cover inheritance, will, forfeiture, insolvency or through the execution of a decree.
FEATURES OF TRANSFER OF PROPERTY ACT, 1882
- It lays down that the act is related to the transfer of property by the act of the parties.
- It provides uniform and clear laws that are concerned with the transfer of immovable property.
- It extends the Indian Contract Act,1872, as the Contract Act was considered an inexhaustive code.
- The transfer of property law is not a copy of English law but is an enactment based on the country’s socio-economic condition.
- Transfer of Property is a subject of the concurrent list provided in the Constitution of India. Thus, the power is in the hands of both State and the Parliament to pass laws related to the transfer of property.
- The transfer of property act applies to lex loci to all the people living in its jurisdiction, not as per the personal laws that differ from person to person.
- Several principles like Justice, Equity and Good Conscience govern the act.
- It highlights the provisions of the inter-vivos parallel to the existing laws related to testamentary and intestate succession.
- The act cannot prevail over the special laws related to the general laws on the property.
ESSENTIAL ELEMENTS OF TRANSFER OF PROPERTY ACT, 1882
Crucial elements for transfer of property under the Transfer of Property Act, 1882 are:
Living or Juristic Person
For transfer of property under the Act mentioned above, the party should be a living or juristic person. A juristic person can be an individual firm, corporate, company, association but not a partnership firm.
Transfer Through Conveyance
Any property conveyance can get done either in the present or future, where it is necessary to ensure that nothing gets transferred before the title.
Transfer of property must get done by a person competent
For a valid transfer of property, the property that gets transferred must be documents transferred by the sound mind, who is not intoxicated and a major; the law must not disqualify him.
Property cannot get transferred to the unborn child
A property cannot get transferred to the unborn child, and the person transferring the interest of the property should be above the age of 18 years.
MEANING OF ‘TRANSFER’ UNDER TRANSFER OF PROPERTY
The term transfer in Transfer of Property includes the transfer of sale, mortgage, lease, actionable claim, gift or exchange of property. The term does not include the transfer of property through a court decree or through wills or cases that deal with property succession.
WAYS TO TRANSFER PROPERTY
The transfer of property can get done in two ways;
- By the act of Parties
- By the virtue of law
TYPES OF PROPERTY TRANSFERS UNDER THE TRANSFER OF PROPERTY ACT
The transfer of property as per the transfer of property act, in general, includes six types of property transfers:
- Actionable claim
KINDS OF PROPERTY TRANSFER UNDER THE TRANSFER OF PROPERTY ACT, 1882
Sale of Immovable Property
In the sale of immovable property, ownership is transferred from the buyer to the seller in exchange for a certain amount.
Mortgage of Immovable Property
The immovable property is transferred from a mortgagor to the mortgagee in mortgage form to secure the loan. The mortgagor has to pay the principal amount with interest to release immovable property from the mortgagee.
Leases of Immovable Property
The possession of the property is transferred from one person to another at a fixed price. In this scenario, the ownership does not get transferred.
Exchange of Immovable Property
When two parties agree to exchange the immovable property
Gift of Immovable Property
Gift refers to transfer or property from one person to another without any consideration. In this, the donor transfers the rights on the property to the donee who accepts it.
WHO CAN TRANSFER PROPERTY
Section 7 of the Transfer of Property Act lays specific rules for the people who are legally eligible to transfer the property. The act states that every person qualified to enter into a contract is eligible to be a party for the matter related to the transfer of property act. Accordingly, a person at least eighteen years of age and sound mind can enter into a contract.
PROPERTIES THAT CANNOT GET TRANSFERRED UNDER THE TRANSFER OF PROPERTY ACT, 1882
Transfer of Property Act’s Section 6 mentions the property that cannot get transferred.
The properties that cannot get transferred are:
- The property that the person expects to get inherited in future.
- The right to re-entry cannot breach a condition that is subsequently not transferred to anyone except the owner.
- The right to easement cannot get transferred.
- The interest of the property that has restricted enjoyment cannot get transferred to anyone except the owner.
DUTY OF THE SELLER AND BUYER DURING TRANSFER OF PROPERTY
DUTY OF SELLER
The transfer of property Act’s Section 54 of the Act provides the duties of the seller in case of transfer of property; the duties are as follows:
- To disclose any material defect to the buyer that is present in the property.
- To provide to the buyer on his request the title documents that are related to the property.
- To answer the queries of the buyer related to the property.
- To execute a proper conveyance of the property, when buyer tenders it to him for execution at an appropriate time and place, on payment or tender of the amount due in respect of the price.
- To take care of the property and its documents even if it gets sold and takes property care as an ordinary prudence man.
- To give possession of the property to the buyer.
- To pay all the balances and public charges that get accrued till the date of sale.
DUTY OF THE BUYER
- To disclose any fact about the property that the buyer is aware of and the seller is unknown to that fact, which may increase the amount of the property in the future.
- To pay the purchase money to the seller on time.
- To bear any loss that has accrued on the property, which the seller does not cause.
The mortgage is the term that gets derived from the word’ ‘Hypotheca’ from Roman Law. The concept of a mortgage is very clear and simple. When any property is given as a security for any loan, the property is said to get mortgaged. And, if the person is unable to repay the loan amount, the creditor has the right to sell the mortgaged property and recover the loan amount.
The concept of a mortgage is not new, and neither is it just a subject that first got discussed in the Transfer of Property Act, 1882. The concept also gets recognised under Hindu and Muslim Laws. The property is pledged to the creditor; the debtor is barred from the possession until the repayment is made. And the creditor took the profits instead of interest.
Chapter IV of the Transfer of Property Act, 1882 deals with the concept of a mortgage.
Section 58 of the Transfer of Property Act defines the term Mortgage as the transfer of an interest in immovable property to secure the payment of money advanced, an existing or future debt or the performance of an engagement that may give rise to a pecuniary liability.
Parties to the mortgage are Mortgagor and Mortgagee, where a mortgagor is a person who transfers the interest in immovable property, and the person to whom such interest gets transferred is the mortgagee.
Mortgage Money is the principal money and the interest of which payment gets secured for the time being. And the instrument from which such transfer gets effected is the mortgage deed.
ESSENTIAL CONDITION OF MORTGAGE
- There is the transfer of interest to the mortgagee.
- The interest gets created in specific immovable property.
- The mortgage gets supported by consideration.
KINDS OF MORTGAGE
Section 58 of the Transfer of Property Act provides for six kinds of mortgage; they are as follows:
The simple mortgage gets defined under Section 58(b) of the Transfer of Property Act,1882. The mortgagor does not transfer immovable property to the mortgagee but agrees to repay the amount. And the mortgagee agrees with the condition that in a failure case to pay the amount, he has all the right to sell the property. And use the proceeds of the sale as a transaction for loan repayment.
Section 58(c) of the Transfer of Property Act defines Conditional Mortgage. In this case, three conditions get placed on the mortgagor, and the mortgagee has the right to sell the property in the following conditions:
- Mortgagor defaults in the payment of mortgage money on a specific date.
- As soon as the mortgagor makes the payment, the sale becomes void.
- On payment by the mortgagor, the property gets transferred, and such a transaction is called a mortgage by conditional sale.
Section 58(d) of the transfer of property act defines a usufructuary mortgage. Under this mortgage, the mortgagor delivers the possession of the property to the mortgagee and authorises the mortgagee to retain the property until the mortgagor makes payment. And also authorise him to receive the rent or profit arising out of the property and consider it a payment of interest.
Section 58(e) defines an English mortgage as the absolute transfer of the property to the mortgagee by the mortgagor. It specifies the date on which the repayment of the amount with interest would be made. Upon such repayment, the property should be re-transferred to the mortgagee.
Deposit of Title Deeds
Section 58(f) of the transfer of property act defines the Deposit of title deed. Like a mortgage where a person living in Calcutta, Madras, Bombay or any other state as specified by the State Government, delivers to the creditor or his agent the title documents of the immovable property to create security and then such transaction is called Deposits of title-deed.
Section 58(f) defines an Anomalous Mortgage as a mortgage other than the mortgages mentioned above.
RIGHTS AND LIABILITIES OF MORTGAGOR AND MORTGAGEE
RIGHTS OF MORTGAGOR
- Right of redemption (Section 60)
- Right to transfer property to a third party (Section 60A)
- Right to inspect and production of documents (Section 60B)
- Right to accession (Section 63)
- Right to Improvement (Section 63A)
- Right to Renewed Lease (Section 64)
- Right to grant a lease (Section 65A)
LIABILITIES OF MORTGAGOR
- Covenant for the title (Section 65(a))
- Covenant for the defence of title (Section 65(b))
- Covenant for payment of public charge (Section 65(c))
- Covenant for payment of rent (Section 65(d))
- Covenant for the discharge of prior mortgage (Section 65(e))
RIGHTS OF MORTGAGEE
- Right to Foreclosure or Sale (Section 67)
- Right to sue (Section 68)
- Right to sell (Section 69)
- Right to appoint a receiver
- Right to accession to mortgaged property (Section 70)
- Right to spend money (Section 72)
- Right to proceed of revenue sale or compensation on acquisition (Section 73(1))
LIABILITIES OF MORTGAGEE
- Duty to manage the property
- Duty to collect rents and profits
- Duty to pay rent, revenue and public charge
- Duty to make necessary repairs
- Duty not to commit destructive acts
- Duty to properly use the insurance money
- Duty to keep the accounts
- Duty to apply rents and profits
Property law gets considered as one of the essential concepts of the legal system of any country, and every other person living in a country has some relation with the property. For the safety and security of the property of citizens, a country must have a rigid property law.
The Transfer of Property Act got introduced to create a comprehensive act that provides information about the transfer in a very simple language and has gone under various amendments due to uncertainties present in the original draft. Under the act, the property is transferable under several conditions that must be satisfied. Every kind of transfer has different conditions that must be satisfied. For transfer of property, it mustn’t fall under Section 6 of the Act that provides for the conditions in which the property cannot get transferred.
The mortgage concept is considered one of the essential parts of the Transfer of Property Act, 1882, as it helps secure the debtor and the creditor.
FAQS RELATED TO TRANSFER OF PROPERTY ACT
What can get transferred under the transfer of property act?
Any immovable property can get transferred under the Transfer of Property Act.
What are the modes of transfer of property?
According to the transfer of property act, the property can get transferred through the sale, exchange, gift, mortgage, lease and specific, actionable claims.
Define mortgagor and mortgagee?
The person who transfers the interest is called the mortgagor, and the one to whom such interest get transferred is the mortgagee.
What is the right to redemption?
Right to redemption signifies the inherent right of the mortgagor to get back the property and document on payment of principal and interest on mortgaged property on or before a specified date.
What is an Instrument?
According, the Transfer of Property Act, 1882, an instrument refers to a non-testamentary instrument; it acts as evidence of the transfer of property between living parties.