THE TRANSFER OF PROPERTY ACT, 1882
Chapter 1
Leaning Objectives
After going through this chapter you should be able to understand:
Various definition given under ‘The Transfer of Property Act, 1882
Types of property under the Act
Distinguish between Movable and Immovable Property
Concept of Transfer of Property
Properties which can be transferred and which cannot be transferred
Rules against perpetuity
Structure
1.1 Introduction
1.2 Important Definitions
1.3 Types of Property
1.4 Transfer of Property
1.5 What cannot be transferred
1.6 Rules against perpetuities
1.7 Exceptions to the rule against perpetuity
1.1 Introduction
The act came into force on 1st July, 882. The Act applies to the whole of India.
The Preamble to the Act lays down that it is an Act to define and amend the law relating
to transfer of property by act of parties (i.e. not by operation of law)
The objectives of the Transfer of Property Act are as follows :
1. To bring the rules which regulate the transmission of property between living
persons into harmony with the rules affecting its its devolution upon death, and
thus to furnish the complement to the work commenced in framing the law of
intestate and testamentary succession; and
2. To complete the code of contract law, so far as it relates to immovable property.”
The Act is limited to the transfer of property by act of parties, as distinguished form a
transfer by operation of law e.g. in case of inheritance (succession), insolvency, forfeiture,
or sale in execution of a decree. It relates to transfers of property inter vivos, i.e. voluntary
transfers between living persons, and has no application to the disposal of property by will.
Some of the general provisions of the T.P Act may be applied even to transfer by
operation of law, on principles of justice, equity and good conscience.
,If the property is movable, the sale of Goods Act will apply, and if it is immovable, the
Transfer of Property Act will govern the case.
1.2 Important Definitions
1. Property- Transfer of Property Act 1882 does not define the term ‘property’ but it has
been used in its widest and most comprehensive sense. Property is a legal term to
denote every kind of a interest or right which has an economic content. When a property
is transferred, the rights along with the property are also transferred. Property is divided
into two broad category i.e. Movable and immovable property.
2. Immoveable property – Transfer of property act does not defined the term
immovable property but it only speaks that immovable property does not include standing
timber, growing crops or grass.
As the act do not give exhaustive definition it only tells what is not included in
immovable property, it become necessary to explore the other acts which defined the
term immovable property.
According to section 3(25) of the General clauses Act 1897, “the Immovable
property shall include land, benefit to arise out of land and things attached to earth or
permanently fastened to anything attached to the earth”.
Registration Act 1908 define ‘immovable property’ as “ it shall include land, buildings,
hereditary allowances, right to ways, lights, ferries, fisheries or any other benefits to arise
out of land or things attached to the earth or permanently fastened to anything which is
attached to the earth but not standing timber, growing crops or grass”.
3. Instrument- Section 3 of the transfer of property act defines instruments as
“Instrument means a non-testamentary instrument”. The transfer of property act does
not deal with testamentary transfers (will etc.), that is why instrument does not cover
testamentary instrument under this act.
4. Attested- Attested in relation to an instrument, means and shall be deemed always to
have meant attested by two or more witnesses each of whom has
(a) seen the executant sign or affix his mark to the instrument, or
(b) has seen some other person sign the instrument in the presence and by the
direction of the executant, or
(c) has received from the executant a personal acknowledgment of his signature or
mark, or of the signature of such other person, and
(d) each of whom has signed the instrument in the presence of the executant; but
(e) it shall not be necessary that more than one of such witnesses shall have been
present at the same time, and
(f) no particular form of attestation shall be necessary.
To attest means to sign and witness any fact. In T.P. Act attesting means
that a person has signed the document by way of testimony of the fact that he saw it
,executed. The party who sees the document executed is, in fact, a witness to it; if he
subscribes as a witness, he becomes an attesting witness. To ‘execute’ means to write
and to put signatures on the instrument.
5. Registered- According to Transfer of property act “Registered” means registered in
any part of the territories to which this Act extends under the law for the time being in
force regulating the registration of documents.
According to Registration Act,
(a) the description of the property must be suitably given so that it become easy to
identify the property,
(b) registration must be done in the area in which the property is situated
(c) the registration must be by the prescribed authority and
(d) the document for registration must be presented by the proper person.
For the purpose of registration of a document, it is mandatory to fulfill all the above
provisions of Registration Act, if the provisions of registration act will not fulfilled, the
document will not be considered as duly registered.
6. Attached to the earth- Attached to the earth means--
(i) rooted in the earth, as in the case of trees and shrubs;
(ii) imbedded in the earth, as in the case of walls or buildings; or
(iii) attached to what is so imbedded for the permanent beneficial enjoyment of that
to which it is attached:
7. Actionable Claim- Actionable claim means a claim
(a) to any debt, other than a debt secured by mortgage of immoveable property or
by hypothecation or pledge of moveable property, or
(b) to any beneficial interest in moveable property not in the possession, either
actual or constructive, of the claimant,
(c) which the Civil Courts recognize as affording grounds for relief, whether such
debt or beneficial interest be existent, accruing, conditional or contingent.
In brief, an actionable claim means –
(i) a claim to an unsecured debt, or
(ii) a claim to any beneficial interest in movable property not in possession of the
claimant.
Every claim is not an actionable claim. It must be a claim either to a debt or to a
beneficial interest in movable property. The beneficial interest is not the movable
property in itself, and may be existing, accruing, conditional or contingent. The
, movable property in which such beneficial interest is claimed, must not be in the
possession of the claimant.
A debt is an obligation to pay a definite amount of sum of money, if the sum money is not
certain, it is not debt. A debt may be payable in future, or it may be conditional or
contingent. Debt secured by a mortgage of immovable property or by pledge of movable
property is excluded from the definition of actionable claim, as they are secured.
Beneficial interest refers to a claim under a contract to movable property.
8. Notice - A person is said to have notice" of a fact when he actually knows that fact,
or when, but for willful abstention from an inquiry or search which he ought to have made,
or gross negligence, he would have known it.
1.3 Types of Property
Transfer of Property Act 1882 does not define the term ‘property’ but it has been used in
its widest and most comprehensive sense. A property is a collection of rights. When a
property is transferred, the rights along with the property are also transferred but it is not
necessary to transferred all rights with the property, the arrangement can be made by
which some of the rights may be transferred. For example, when gift of a house is made
by the transferor to transferee, there is a transfer of absolute right but in case of a lease
agreement only partial interest i.e. right of enjoyment of the house is transferred. Property
is divided into two broad category i.e. Movable and immovable property.
1. Immovable Property – The transfer of property Act 1882 has not defined the term but
Section 3 of the act merely lay down that "immoveable property" does not include
standing timber, growing crops or grass.
Section 3(26) of the general clause Act 1897 defined immovable property as “it
shall include land, benefits to arise out of land and things attached to the earth, or
permanently fastened to anything to the earth.’’
According to Indian Registration Act, Immovable Property includes land, building,
hereditary allowances, right to ways, lights, ferries, fisheries, or any other benefits to arise
out of land and things attached to earth, but not standing timber, growing crops or grass.
Immovable Property means lands, benefits arising of the lands and the things attached to
the earth or permanently fastened to anything attached to the earth. Other than the
physical aspect, every benefit arising from and every interest in the property is also
included in the definition. It excludes three things, namely, standing timber, growing crops
and grass.
It may be concluded from above definitions that Immovable Property means lands,
benefits arising of the lands and the things attached to the earth or permanently fastened
Chapter 1
Leaning Objectives
After going through this chapter you should be able to understand:
Various definition given under ‘The Transfer of Property Act, 1882
Types of property under the Act
Distinguish between Movable and Immovable Property
Concept of Transfer of Property
Properties which can be transferred and which cannot be transferred
Rules against perpetuity
Structure
1.1 Introduction
1.2 Important Definitions
1.3 Types of Property
1.4 Transfer of Property
1.5 What cannot be transferred
1.6 Rules against perpetuities
1.7 Exceptions to the rule against perpetuity
1.1 Introduction
The act came into force on 1st July, 882. The Act applies to the whole of India.
The Preamble to the Act lays down that it is an Act to define and amend the law relating
to transfer of property by act of parties (i.e. not by operation of law)
The objectives of the Transfer of Property Act are as follows :
1. To bring the rules which regulate the transmission of property between living
persons into harmony with the rules affecting its its devolution upon death, and
thus to furnish the complement to the work commenced in framing the law of
intestate and testamentary succession; and
2. To complete the code of contract law, so far as it relates to immovable property.”
The Act is limited to the transfer of property by act of parties, as distinguished form a
transfer by operation of law e.g. in case of inheritance (succession), insolvency, forfeiture,
or sale in execution of a decree. It relates to transfers of property inter vivos, i.e. voluntary
transfers between living persons, and has no application to the disposal of property by will.
Some of the general provisions of the T.P Act may be applied even to transfer by
operation of law, on principles of justice, equity and good conscience.
,If the property is movable, the sale of Goods Act will apply, and if it is immovable, the
Transfer of Property Act will govern the case.
1.2 Important Definitions
1. Property- Transfer of Property Act 1882 does not define the term ‘property’ but it has
been used in its widest and most comprehensive sense. Property is a legal term to
denote every kind of a interest or right which has an economic content. When a property
is transferred, the rights along with the property are also transferred. Property is divided
into two broad category i.e. Movable and immovable property.
2. Immoveable property – Transfer of property act does not defined the term
immovable property but it only speaks that immovable property does not include standing
timber, growing crops or grass.
As the act do not give exhaustive definition it only tells what is not included in
immovable property, it become necessary to explore the other acts which defined the
term immovable property.
According to section 3(25) of the General clauses Act 1897, “the Immovable
property shall include land, benefit to arise out of land and things attached to earth or
permanently fastened to anything attached to the earth”.
Registration Act 1908 define ‘immovable property’ as “ it shall include land, buildings,
hereditary allowances, right to ways, lights, ferries, fisheries or any other benefits to arise
out of land or things attached to the earth or permanently fastened to anything which is
attached to the earth but not standing timber, growing crops or grass”.
3. Instrument- Section 3 of the transfer of property act defines instruments as
“Instrument means a non-testamentary instrument”. The transfer of property act does
not deal with testamentary transfers (will etc.), that is why instrument does not cover
testamentary instrument under this act.
4. Attested- Attested in relation to an instrument, means and shall be deemed always to
have meant attested by two or more witnesses each of whom has
(a) seen the executant sign or affix his mark to the instrument, or
(b) has seen some other person sign the instrument in the presence and by the
direction of the executant, or
(c) has received from the executant a personal acknowledgment of his signature or
mark, or of the signature of such other person, and
(d) each of whom has signed the instrument in the presence of the executant; but
(e) it shall not be necessary that more than one of such witnesses shall have been
present at the same time, and
(f) no particular form of attestation shall be necessary.
To attest means to sign and witness any fact. In T.P. Act attesting means
that a person has signed the document by way of testimony of the fact that he saw it
,executed. The party who sees the document executed is, in fact, a witness to it; if he
subscribes as a witness, he becomes an attesting witness. To ‘execute’ means to write
and to put signatures on the instrument.
5. Registered- According to Transfer of property act “Registered” means registered in
any part of the territories to which this Act extends under the law for the time being in
force regulating the registration of documents.
According to Registration Act,
(a) the description of the property must be suitably given so that it become easy to
identify the property,
(b) registration must be done in the area in which the property is situated
(c) the registration must be by the prescribed authority and
(d) the document for registration must be presented by the proper person.
For the purpose of registration of a document, it is mandatory to fulfill all the above
provisions of Registration Act, if the provisions of registration act will not fulfilled, the
document will not be considered as duly registered.
6. Attached to the earth- Attached to the earth means--
(i) rooted in the earth, as in the case of trees and shrubs;
(ii) imbedded in the earth, as in the case of walls or buildings; or
(iii) attached to what is so imbedded for the permanent beneficial enjoyment of that
to which it is attached:
7. Actionable Claim- Actionable claim means a claim
(a) to any debt, other than a debt secured by mortgage of immoveable property or
by hypothecation or pledge of moveable property, or
(b) to any beneficial interest in moveable property not in the possession, either
actual or constructive, of the claimant,
(c) which the Civil Courts recognize as affording grounds for relief, whether such
debt or beneficial interest be existent, accruing, conditional or contingent.
In brief, an actionable claim means –
(i) a claim to an unsecured debt, or
(ii) a claim to any beneficial interest in movable property not in possession of the
claimant.
Every claim is not an actionable claim. It must be a claim either to a debt or to a
beneficial interest in movable property. The beneficial interest is not the movable
property in itself, and may be existing, accruing, conditional or contingent. The
, movable property in which such beneficial interest is claimed, must not be in the
possession of the claimant.
A debt is an obligation to pay a definite amount of sum of money, if the sum money is not
certain, it is not debt. A debt may be payable in future, or it may be conditional or
contingent. Debt secured by a mortgage of immovable property or by pledge of movable
property is excluded from the definition of actionable claim, as they are secured.
Beneficial interest refers to a claim under a contract to movable property.
8. Notice - A person is said to have notice" of a fact when he actually knows that fact,
or when, but for willful abstention from an inquiry or search which he ought to have made,
or gross negligence, he would have known it.
1.3 Types of Property
Transfer of Property Act 1882 does not define the term ‘property’ but it has been used in
its widest and most comprehensive sense. A property is a collection of rights. When a
property is transferred, the rights along with the property are also transferred but it is not
necessary to transferred all rights with the property, the arrangement can be made by
which some of the rights may be transferred. For example, when gift of a house is made
by the transferor to transferee, there is a transfer of absolute right but in case of a lease
agreement only partial interest i.e. right of enjoyment of the house is transferred. Property
is divided into two broad category i.e. Movable and immovable property.
1. Immovable Property – The transfer of property Act 1882 has not defined the term but
Section 3 of the act merely lay down that "immoveable property" does not include
standing timber, growing crops or grass.
Section 3(26) of the general clause Act 1897 defined immovable property as “it
shall include land, benefits to arise out of land and things attached to the earth, or
permanently fastened to anything to the earth.’’
According to Indian Registration Act, Immovable Property includes land, building,
hereditary allowances, right to ways, lights, ferries, fisheries, or any other benefits to arise
out of land and things attached to earth, but not standing timber, growing crops or grass.
Immovable Property means lands, benefits arising of the lands and the things attached to
the earth or permanently fastened to anything attached to the earth. Other than the
physical aspect, every benefit arising from and every interest in the property is also
included in the definition. It excludes three things, namely, standing timber, growing crops
and grass.
It may be concluded from above definitions that Immovable Property means lands,
benefits arising of the lands and the things attached to the earth or permanently fastened
