Textbook on Transfer of Property Act, 6th ed
Textbook on Transfer of Property Act, 6th ed / THE TRANSFER OF PROPERTY ACT, 1882
Currency Date: 24 April 2020
© 2020 LexisNexis
,THE TRANSFER OF PROPERTY ACT, 1882
(4 of 1882)
[17th February, 1882]
An Act to amend the law relating to the Transfer of Property by act of parties.
Preamble.—WHEREAS it is expedient to define and amend certain parts of the law
relating to the transfer of property by act of parties; it is hereby enacted as follows:—
Comments
1. Regulation of Transfer by Act of Parties
Before the Transfer of Property Act came into existence in 1882, the transfers of
immovable properties in India were governed by the principles of English law and
equity. In the absence of any statutory provisions the courts had to fall back upon
English law on real properties, sometimes forcing the courts to decide the disputes
according to their own notions of justice and fair play, resulting in confused and
conflicting case laws. To remedy these confusions and conflicts a Law Commission
was appointed in England to prepare a code of substantive Law of Transfer of
Properties in India. This Commission prepared a draft Bill which was sent to the
secretary of State for India. This Bill was introduced in the Legislative Council in 1877.
The Bill was then referred to a Select Committee and it was also sent to the Local
Governments for their comments. This Bill was discussed and redrafted on many
points and referred to a Third Law Commission. The Third Law Commission consisted
of Sir Charles Turner, Chief Justice of Madras, Sir Raymond Wast and Mr Whitely
Stokes, Law Member of the Council of the Governor-General.
The Bill pertaining to Transfer of Property Act, 1882 was prepared not less than seven
times before the final Bill was passed and it came into force with effect from 17
February 1882, as Transfer of Property Act, 1882 (4 of 1882).
The preamble of the Transfer of Property Act, 1882 says that "whereas it is expedient to
define and amend certain parts of the law relating to the transfer of property by act of
parties; it is hereby enacted as follows:—".
2. Preamble
The provisions of the Transfer of Property Act, 1882 have no application in a case
where a transfer of property takes place by operation of law. As would appear from the
Preamble of the Transfer of Property Act, 1882, the same applies only to transfer by act
of parties. A transfer by operation of law is not validated or invalidated by anything
contained in the Act. A transfer which takes place by operation of law, therefore, need
not meet the requirement of the provisions of the Transfer of Property Act or the Indian
Registration Act. Section 11 of the Act provides for a non obstante clause. An
overriding effect, therefore, has been given thereby over all other laws for the time
being in force.1
,3. Act Not Exhaustive
It is to be noted that in the language of Preamble neither the word "consolidate" nor the
word "exhaustive" is used. This means that the Act is not exhaustive of a complete
Code. It only defines and amends certain parts of the law relating to the transfer of
property which is already existing. It is not giving any new consolidated law. Therefore,
the help of certain principles of English law which are not inconsistent with the present
Act may be taken on occasions on the basis of justice, equity and good conscience.
Where any case is not covered by the provisions of the Act, the courts are permitted to
administer the principles of equity. But where the case is within the provisions of the
Act, the Act must be applied. The principle that courts are authorized to act according
to justice, equity and good conscience where there is no specific provision of law
governing the case means that the English law is to be applied if its application is
suited to the Indian society and its circumstances.
4. Objects and Scope of the Act
The Act defines and amends the law relating to transfer of property by act of parties.
The Act does not cover transfer of property by operation of law. Further, transfer of
property by act of parties again may be inter vivos or testamentary. Inter vivos transfer
means transfer between two living persons whereas testamentary transfer relates to
transfer by will etc. The Transfer of Property Act, 1882, covers only inter vivos transfers.
Testamentary transfers are governed by the Indian Succession Act, 1925. The objects
and scope of the Act may be summarized in terms of the following points:
(1) This Act applies only to transfers by living persons. It does not regulate transfers by
operation of law. In case of transfer by living persons both the transferor and the
transferee are living at the time of transfer. In case of transfer by operation of law, the
property is transferred even though the transferor is not alive on the date of transfer. In
this mode of transfer the property is transferred automatically by the process of law.
For example, devolution of property upon the legal heirs or legatees by inheritance or
under wills is by operation of law. Transfers by orders of a court or transmission of
property in cases of insolvency, sale or forfeiture in execution of court's decree are all
by operation of law.
(2) The Act mainly deals with the transfer of immovable properties. Although sections
5 to 37 of Chapter II contain provisions which are applicable to both kinds of property
whether movable or immovable, mainly the Act deals with transfers of immovable
property. Transfers of movable property are regulated by the Sale of Goods Act, 1930.
(3) Chapter II of the Act which contains general principles of transfer does not affect
transfer by Muslims even if it is against any of the provisions of Chapter II. This means
that if there is any provision in the Transfer of Property Act, 1882 which is against any
rule of Muslim Law, the rule of Muslim Law will prevail over the conflicting provisions of
Act. The gifts made by Muslims are governed by the Muslim Law of Hiba. Section 129
of Chapter VII says that provisions of this Chapter (relating to gifts) would not be
applicable to gifts made by Muslims. However, such exemptions are given only in
respect of those rules of Muslim Law which are in conflict with any of the provisions of
the Act dealing with the transfers in general.
(4) The Act has not only defined the existing rules of transfers but also amended and
modified some of them so as to make them suitable to the socio-economic conditions
of India.
(5) The Act has provided a parallel law to the already existing laws of testamentary and
intestate transfers.
, (6) Certain incidents of any contract or constitution of property are saved by the Act.
This means that they are exempted from the operation of the Act provided they are not
inconsistent with the provisions of the Act and are allowed by the law for the time
being in force. Constitution of property means essential nature of property. The
provisions of the Transfer of Property Act, 1882 cannot be applied to affect or change
the basic nature of the property itself.
(7) The Transfer of Property Act, 1882 was not made applicable to the whole of India in
the first instance. As originally enacted, the Act did not extend to the then State of
Bombay, Punjab and Delhi. It was extended to the State of Bombay by a notification in
the Official Gazette. It is not applicable to the territories included in the State of Punjab.
The general scheme of the Transfer of Property Act, 1882, is given below in a tabular
form:
SCHEME OF TRANSFER OF PROPERTY ACT, 1882
5. Applicability of the Act
The Transfer of Property Act, 1882 came into force on 1 July 1882. It was applicable to
the whole of British India except the territories of Bombay, Punjab and Burma. The Act
empowers the State Governments to extend its provisions to the whole or any part of
the territories of the State Government concerned by notification in the Official Gazette.
The State Governments may also exempt territories administered by them from the
provisions of sections 54 (paras 2 and 3), 59, 107 and 123, either retrospective or
prospectively.
From 1 January 1893 the Act was extended to the territories of Bombay and from 22
December 1924 to the whole of Burma. In Punjab, this Act is not enforceable but its
provisions are being applied by the courts on the basis of principles of justice, equity
and good conscience. However, sections 54, 107 and 123 were extended to all the
municipalities in Punjab (including areas of Haryana and Chandigarh) and all the
notified areas under section 241 of the Punjab Municipal Act, 1911. Similarly, in Delhi,
from 1 December 1962 all the provisions of this Act except section 129 were made
applicable and from 1 November 1965, the whole of the Act was enforced in Goa,
Daman and Diu with no exceptions.
Textbook on Transfer of Property Act, 6th ed / THE TRANSFER OF PROPERTY ACT, 1882
Currency Date: 24 April 2020
© 2020 LexisNexis
,THE TRANSFER OF PROPERTY ACT, 1882
(4 of 1882)
[17th February, 1882]
An Act to amend the law relating to the Transfer of Property by act of parties.
Preamble.—WHEREAS it is expedient to define and amend certain parts of the law
relating to the transfer of property by act of parties; it is hereby enacted as follows:—
Comments
1. Regulation of Transfer by Act of Parties
Before the Transfer of Property Act came into existence in 1882, the transfers of
immovable properties in India were governed by the principles of English law and
equity. In the absence of any statutory provisions the courts had to fall back upon
English law on real properties, sometimes forcing the courts to decide the disputes
according to their own notions of justice and fair play, resulting in confused and
conflicting case laws. To remedy these confusions and conflicts a Law Commission
was appointed in England to prepare a code of substantive Law of Transfer of
Properties in India. This Commission prepared a draft Bill which was sent to the
secretary of State for India. This Bill was introduced in the Legislative Council in 1877.
The Bill was then referred to a Select Committee and it was also sent to the Local
Governments for their comments. This Bill was discussed and redrafted on many
points and referred to a Third Law Commission. The Third Law Commission consisted
of Sir Charles Turner, Chief Justice of Madras, Sir Raymond Wast and Mr Whitely
Stokes, Law Member of the Council of the Governor-General.
The Bill pertaining to Transfer of Property Act, 1882 was prepared not less than seven
times before the final Bill was passed and it came into force with effect from 17
February 1882, as Transfer of Property Act, 1882 (4 of 1882).
The preamble of the Transfer of Property Act, 1882 says that "whereas it is expedient to
define and amend certain parts of the law relating to the transfer of property by act of
parties; it is hereby enacted as follows:—".
2. Preamble
The provisions of the Transfer of Property Act, 1882 have no application in a case
where a transfer of property takes place by operation of law. As would appear from the
Preamble of the Transfer of Property Act, 1882, the same applies only to transfer by act
of parties. A transfer by operation of law is not validated or invalidated by anything
contained in the Act. A transfer which takes place by operation of law, therefore, need
not meet the requirement of the provisions of the Transfer of Property Act or the Indian
Registration Act. Section 11 of the Act provides for a non obstante clause. An
overriding effect, therefore, has been given thereby over all other laws for the time
being in force.1
,3. Act Not Exhaustive
It is to be noted that in the language of Preamble neither the word "consolidate" nor the
word "exhaustive" is used. This means that the Act is not exhaustive of a complete
Code. It only defines and amends certain parts of the law relating to the transfer of
property which is already existing. It is not giving any new consolidated law. Therefore,
the help of certain principles of English law which are not inconsistent with the present
Act may be taken on occasions on the basis of justice, equity and good conscience.
Where any case is not covered by the provisions of the Act, the courts are permitted to
administer the principles of equity. But where the case is within the provisions of the
Act, the Act must be applied. The principle that courts are authorized to act according
to justice, equity and good conscience where there is no specific provision of law
governing the case means that the English law is to be applied if its application is
suited to the Indian society and its circumstances.
4. Objects and Scope of the Act
The Act defines and amends the law relating to transfer of property by act of parties.
The Act does not cover transfer of property by operation of law. Further, transfer of
property by act of parties again may be inter vivos or testamentary. Inter vivos transfer
means transfer between two living persons whereas testamentary transfer relates to
transfer by will etc. The Transfer of Property Act, 1882, covers only inter vivos transfers.
Testamentary transfers are governed by the Indian Succession Act, 1925. The objects
and scope of the Act may be summarized in terms of the following points:
(1) This Act applies only to transfers by living persons. It does not regulate transfers by
operation of law. In case of transfer by living persons both the transferor and the
transferee are living at the time of transfer. In case of transfer by operation of law, the
property is transferred even though the transferor is not alive on the date of transfer. In
this mode of transfer the property is transferred automatically by the process of law.
For example, devolution of property upon the legal heirs or legatees by inheritance or
under wills is by operation of law. Transfers by orders of a court or transmission of
property in cases of insolvency, sale or forfeiture in execution of court's decree are all
by operation of law.
(2) The Act mainly deals with the transfer of immovable properties. Although sections
5 to 37 of Chapter II contain provisions which are applicable to both kinds of property
whether movable or immovable, mainly the Act deals with transfers of immovable
property. Transfers of movable property are regulated by the Sale of Goods Act, 1930.
(3) Chapter II of the Act which contains general principles of transfer does not affect
transfer by Muslims even if it is against any of the provisions of Chapter II. This means
that if there is any provision in the Transfer of Property Act, 1882 which is against any
rule of Muslim Law, the rule of Muslim Law will prevail over the conflicting provisions of
Act. The gifts made by Muslims are governed by the Muslim Law of Hiba. Section 129
of Chapter VII says that provisions of this Chapter (relating to gifts) would not be
applicable to gifts made by Muslims. However, such exemptions are given only in
respect of those rules of Muslim Law which are in conflict with any of the provisions of
the Act dealing with the transfers in general.
(4) The Act has not only defined the existing rules of transfers but also amended and
modified some of them so as to make them suitable to the socio-economic conditions
of India.
(5) The Act has provided a parallel law to the already existing laws of testamentary and
intestate transfers.
, (6) Certain incidents of any contract or constitution of property are saved by the Act.
This means that they are exempted from the operation of the Act provided they are not
inconsistent with the provisions of the Act and are allowed by the law for the time
being in force. Constitution of property means essential nature of property. The
provisions of the Transfer of Property Act, 1882 cannot be applied to affect or change
the basic nature of the property itself.
(7) The Transfer of Property Act, 1882 was not made applicable to the whole of India in
the first instance. As originally enacted, the Act did not extend to the then State of
Bombay, Punjab and Delhi. It was extended to the State of Bombay by a notification in
the Official Gazette. It is not applicable to the territories included in the State of Punjab.
The general scheme of the Transfer of Property Act, 1882, is given below in a tabular
form:
SCHEME OF TRANSFER OF PROPERTY ACT, 1882
5. Applicability of the Act
The Transfer of Property Act, 1882 came into force on 1 July 1882. It was applicable to
the whole of British India except the territories of Bombay, Punjab and Burma. The Act
empowers the State Governments to extend its provisions to the whole or any part of
the territories of the State Government concerned by notification in the Official Gazette.
The State Governments may also exempt territories administered by them from the
provisions of sections 54 (paras 2 and 3), 59, 107 and 123, either retrospective or
prospectively.
From 1 January 1893 the Act was extended to the territories of Bombay and from 22
December 1924 to the whole of Burma. In Punjab, this Act is not enforceable but its
provisions are being applied by the courts on the basis of principles of justice, equity
and good conscience. However, sections 54, 107 and 123 were extended to all the
municipalities in Punjab (including areas of Haryana and Chandigarh) and all the
notified areas under section 241 of the Punjab Municipal Act, 1911. Similarly, in Delhi,
from 1 December 1962 all the provisions of this Act except section 129 were made
applicable and from 1 November 1965, the whole of the Act was enforced in Goa,
Daman and Diu with no exceptions.
