Académique Documents
Professionnel Documents
Culture Documents
Transfer of Property
Section 5
Compiled By
Ankit Chowdhri
10/09
Table of Contents
Case Table i
Abbreviations iii
Living Persons 3
In Present of In Future 5
To Himself 6
Family Settlement 6
Compromise 7
Partition 8
Surrender 9
Release 9
Relinquishment 10
Charge 11
Bibliography 12
Table of Cases
Balkrishna v. Raghunath 7
Gobinf v. Dwarkanath 11
Jones v. Skinner 2
Kalka v. Jaswant 9
Mohendra v. Kali 5
Morati v. Krishna 9
i
Naranbhai v. Suleman 6
Narasimha v. Venkatalingum 4
Narasingarji v. Panaganti 2
Reddiar, MP v. A. Ammal 7
Sarin v. Poplai 8
ii
Abbreviations Used
Abbreviation Used Used in place of
& and
AP Andhra Pradesh
Ed. Edition
Ibid. Ibidem
Ins. Inserted
J. Justice
p. page number
PC Privy Council
Sec. Section
v. versus
Vol. Volume
iii
iv
The Transfer of Property Act, 1882
Chapter II
The word “transfer” is defined with the reference to the word “convey”. This word in
English Law in its narrower and more usual sense refers to the transfer of an estate in land;
but it is sometimes used in a much wider sense to include any form of assurance inter vivos.
The word „conveys‟ in Section 5 of the Indian Act is used in the wider sense referred to
above. Transferor must have an interest in the property. He cannot sever himself from it and
yet convey it.3 A lease comes within the meaning of the word „transfer‟.4
The words „living person‟ exclude transfers by Wills and the Will only operates after
the death of the testator.5
In Ma Kyin Hone v. Ong Boon Hock,6 a single Judge of the Rangoon High Court
said that the word „transfer‟ is a word of very wide meaning and includes every transaction
1
Ins. by Act 20 of 1929, sec. 6.
2
Ibid.
3 th
See Mulla, The Transfer of Property Act, 9 Ed., LexisNexis Butterworths, 2004, p. 73.
4
Krishna Kumar Khemka v. Grindlays Bank PLC, AIR 1991 SC 899.
5
See topic Living Persons at p. 3.
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whereby a party divests himself or is divested of a portion of his interest, that portion
subsequently vesting or being vested in another party. This meaning of „transfer‟ is supported
by the aforesaid definition in the Act.
The Legislature has not attempted to define the word „property‟, but it is used in this
Act in its widest and most generic legal sense.7 Section 6 says that „property of any kind may
be transferred‟, etc. Thus an actionable claim is property; 8 and so is a right to a reconveyance
of land.9 Property is not only the thing which is the subject matter of ownership, but includes
the dominium or the right or ownership or of partial ownership, and as Lord Langdale said it
is the most comprehensive of all terms which can be used inasmuch as it is indicative and
descriptive of every possible interest which the party can have.10
It may be noted that property is essentially a bundle of rights and interests. When a
property is transferred, there may be transfer of all the rights in that property or only some of
it. All the rights in the property signify ownership or absolute interest. Only some rights or
interests in a property would mean partial or limited interest. In Sunil Sidharthbai v.
Commissioner of Income Tax,11 the Supreme Court rightly observed that in general, transfer
of property means passing of a right in the property from one person to another. In one case
there may be passing of entire bundle of rights from transferor to transferee, but in another
case there may be transfer only some of such rights. This, if A makes a gift of his house to B,
there is transfer of absolute interest of the house. It is a transfer of „property‟. On the other
hand, if A transfers the right of enjoyment of his house to B for a certain period it is called a
„lease‟. It is transfer of only partial interest in the house but it is also a transfer of
„property‟.12
6
AIR 1937 Rang. 47.
7
Bansigopal v. V.K. Banerji, AIR 1949 All. 433.
8
Rudra Perkash v. Krishna, (1887) 14 Cal. 241, 244.
9
Narasingarji v. Panaganti, AIR 1921 Mad. 498.
10
Jones v. Skinner, (1835) 5 LJ Ch. 87, 90.
11
AIR 1986 SC 368.
12 th
Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 53.
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Living Persons
The words “living person” can only mean a human being, who is alive and conveys
his property to another person. A person, who disposes of his property by will, does not
convey it as a living person because the transfer takes effect after his death. There is no
present transfer.13
The words are use d as the transfer under the Act must be a deed intra vivos and not
by will. According to the Section, both the transferor and the transferee must be living, which
includes under Section 13 a person not in existence at the date of the transfer 14. The
explanation to the section further includes in the phrase a company or association or body or
individuals whether incorporated or not. So does also “person” according to the General
Clauses Act, 1897.15
The expression „inter vivos‟ refers to transfer or conveyance of the property from one
living person to another. Thus it is an act between two living persons who are parties to such
transaction, which takes place between two. That also is the trust of Section 5 of the Transfer
of Property Act. It is significantly more clear and explicit when it says that “transfer of
property” means „an act by which is living person conveys property to one or more other
living persons.‟
13 th
Row, Sanjiva, The Transfer of Property Act, 4 Ed., Vol. 1, The Law Book Company (P) Ltd., Allahabad, 1989.
p. 113.
14
Section 13 reads “Transfer for benefit of unborn person. – Where, on transfer of property, an interest
therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior
interest created by the same transfer, the interest created for the benefit of such person shall not take effect,
unless it extends to the whole of the remaining interest of the transferor in the property.”
15 nd
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2 Ed., Wadhwa and Company Nagpur,
New Delhi, 2004. p. 93.
16
Usha Rani Kundu v. Agradut Sangha and other, AIR 2006 (NOC) 911 Cal.
17
Sohoni, Vishwas Shridhar, Transfer of Property Act, Premier Publishing Company, Allahabad, 2008. p. 66.
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A deity is not included in the definition of person in Section 5 of the Act.18 If a deity
is not a person, the provisions of the Act including Section 3 do not govern a transfer of
property made in favor of a deity.19
In Bhupati Nath v. Ram Lal,25 a full bench of the Calcutta High Court dealing with a
Hindu will, held that the principle of Hindu Law which invalidates a gift other than to a
sentiment being capable of accepting it does not apply to a bequest to the trustees for the
establishment of an image and the worship of a Hindu deity after the ancestor‟s death nor
does it make such a bequest void. The Full Bench, after examining the Hindu texts and
authorities observed that according to the strict Hindu juridical notion there can be no gift in
favor of the Gods for in the case of deities there cannot be any acceptance and therefore
necessarily any gift.
Court has not been regarded as „living person‟ therefore; transfer made by the order to
the Court is not a transfer of property within the meaning of Section 5 of the Transfer of
Property Act.26
18
Ashrafi Devi v. Prem Chand, AIR 1971 All. 457 (464).
19
Ibid.
20
Pramatha Nath v. Jai Indra Bahadur Singh, (1919) 46 IA 228; 42 All. 158; AIR 1919 PC 55.
21
Section 122 reads “Gift Defined. – Gift is the transfer of certain existing movable or immovable property
made voluntarily and without consideration, by one person, called the donor, to another, and accepted by or
on the behalf of the done.” “Acceptance when to be made. – Such acceptance must be made during the
lifetime of the donor and while he is still capable of giving. If the done dies before acceptance, the gift is void.”
22
Section 123 reads “Transfer how effected. – For the purpose of making a gift of immovable property, the
transfer must be effected by registered instrument signed by or on behalf of the donor, and attested by at
least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either
by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as
goods sold may be delivered.”
23
Narasimha v. Venkatalingum, (1927) Mad. 687.
24 th
See Mulla, The Transfer of Property Act, 9 Ed., LexisNexis Butterworths, 2004, p. 81.
25
(1910) 37 Cal. 128.
26
Raghubar Singh v. Jai Indira Bahadur Singh, AIR 1919 PC 55.
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In Present or in Future
The words “In Present of in Future” mean that the conveyance may be one which
takes effect immediately on execution or at some distant date, that is to say, the interest of the
transferee arises immediately on the execution of the document of at the date fixed by the
parties. In Re Mahomed Hasham & Co.,27Martin, J., in holding that Section 5 did not apply
to the Presidency Town Insolvency Act, observed: “I am not absolutely sure what the words
„in presenter in future‟ refer to. I should have thought grammatically they refer to property. In
Shumsuddin v. Abdul Husein,28 Jenkins, CJ., remarked, “there is no definition in the Act of
„convey‟ or of „property,‟ but It is to be noticed that a transfer means a conveyance of
property not only in present but also in future.29
A transfer of property may take place not only in present, but also in the future,30 but
the property must be in existence. The words „in present or in future‟ qualify the word
„conveys‟, and not the word „property.‟31 A transfer of property that is not in existence
operates as a contract to be performed in the future which may be specifically enforced as
soon as the property comes into existence.32
A makes a gift of his property to B. He does not mention to when B shall get
the property and also does not law down any condition. The transfer is present
and B gets the property with immediate effect.
27
(1922) 24 Bom. LR 861.
28
(1907) 31 Bom. 165.
29 nd
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2 Ed., Wadhwa and Company Nagpur,
New Delhi, 2004. p. 95.
30
Sumsuddin v. Abdul Husein, (1907) 31 Bom. 165, 172.
31
Jugalkishore v. Rao Cotton Co, AIR 1955 SC 376.
32
Mohendra v. Kali, (1903) Cal. 265, 274.
33 th
Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 52.
34
Ibid.
Page | 5
A transfers his property to B for life and then to C. The transfer in favor of B
is present (although he gets only life-interest) but the transfer in favor of C is
future transfer.
A makes a gift of his watch to B provided that B gets first division in the next
examination. Here, although the gift has been declared today but it shall take
effect only if B gets first division. Such transfers are called conditional
transfers.
To Himself
A transfer of property under Section 5 of the Act requires two „living persons‟, the
transferor and the transferee. One cannot transfer a property to himself. But, one can transfer
a property to himself in some other capacity. The words „to himself‟ were added to this
section by the Amending Act, 1929 to include in the transfer of property also a case where a
person makes any settlement of his property in a trust and appoints himself as the sole
trustee.35 Here, the transferor and the transferee are physically the same person but as
transferor he has the legal status of settlor whereas as transferee his legal status is that of
trustee.
Transfer of property as contemplated under this Act carries the same meaning
throughout this enactment as it has been defined in Section 5. This definition has limited the
scope of the term „transfer of property‟. Unless the above mentioned essential elements are
present in transaction, it cannot be regarded as a transfer of property.36
Family Settlement
35
Naranbhai v. Suleman, (1975) 16 Guj. LR 289.
36 th
Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 54.
Page | 6
for each member.37 In Sadhu Madho Das v. Pandit Mukund Ram,38 the Supreme Court
observed that family arrangement is based on the assumption that there is an antecedent title
of some sort in the parties and the agreement acknowledges and defines what that title is.39
It is not necessary that a family settlement should be restricted to the members of the
family upon a particular degree. Such settlements can take place not only among the heirs of
a particular class, they can include persons outside the preview of succession.41
In a family settlement since there is no „creation of new title or interest in favor of any
member, there is no conveyance, therefore, it is not a transfer of property.
Compromise
A compromise of doubtful rights is not a transfer but is based on the assumption that
there was an antecedent title of some kind in the parties which the agreement acknowledged
and defined.42 The position would be different if such a compromise also transferred
properties to a person who has neither a pre-existing title nor a claim to such a title.43
37
Tek Bahadur v. Devi Singh, AIR 1966 SC 292.
38
AIR 1955 SC 481
39 th
Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 55.
40
AIR 2006 SC 3304.
41
Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1.
42
Balkrishna v. Raghunath, AIR 1951 Nag. 171.
43
Reddiar, MP v. A. Ammal, AIR 1971 Nag. 182.
44
Abbas Bandi Bibi v. Muhammad Raza, AIR 1929 Oudh 193.
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Partition
“Partition is not actually a transfer of property, but would only signify the surrender
of a partition of a joint right, in exchange for a similar right from the other co-sharer or co-
sharers.”
Mookharjee, J., in Atrabanessa Bibi v. Safutullaah Mia,50 said that partition signifies
the surrender of a portion of a joint in exchange for a similar right from the co-sharer.
In Sarin v. Poplai,51 Gajendragadkar, CJ., has observed that „the true effect of
partition is that each coparcener gets specific property in lieu of his undivided right in respect
of the totality of the property of the family.‟
For the purpose of determining whether the document is a partition deed, it is the
contents of the document that are to be taken in to consideration and not the nomenclature
alone. There is no recital in the whole order agreement to the effect that it was recording the
agreement of an earlier partition which had already taken place. The agreement in question
purported to create, declare, assign, limit and extinguish right and interest over immovable
45 th
Mulla, The Transfer of Property Act, 9 Ed., LexisNexis Butterworths, 2004, p. 76.
46 th
Sinha, Dr.R.K., The Transfer of Property Act, 11 Ed., Central Law Agency, Allahabad, 2010, p. 56.
47
Chanaderwati v. Lakhmi Chand, AIR 1988 Delhi 13.
48
Indoji Jethaji v. Kothapalli, (1919) 54 IC 146.
49
AIR 1988 SC 1365.
50
(1916) 43 Cal. 504, 509.
51
(1966) SCR 349; AIR 1966 SC 432.
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properties. It was held that the document required to be duly stamped and properly
registered.52
A father partitioned his property among his three sons. The agricultural land was
given to one of them, the plaintiff in the case. The pucca house was given to the two others.
They were already in possession of the property respectively as distributed under the partition
and had been making improvement in their respective shares. Thus they had been acting on
the family settlement. They had become bound by it. The Court said that it was immaterial
that the mutation of the agricultural land was in the name of all the three sons.53
Surrender
Release
Release is a transfer of property. Is a larger interest falls into a smaller interest in such
a way that smaller interest is enlarged then, for the holder of the smaller interest there is
creation of a new title or interest. Since some new titles or interest are added to transfer of
52
Vincent Lourdhenathan v. Josphine Syla Dominque, AIR 2008 NOC 1173 Mad.
53
Gurcharan Ram v. Tejwant Singh, AIR 2008 NOC 1650 P&H.
54
Makkan Lal Saha v. Nagendranath Adhikari, (1933) 60 Cal. 379; AIR 1933 Cal. 467.
55
Morati v. Krishna, (1925) Nag. 455.
56
Kalka v. Jaswant, (1926) Oudh 69.
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property.57 Where a person in whose favor the “release” is executed gets rights by virtue of
the release, the deed amounts to “transfer.”58
Relinquishment
In other words, relinquishment means giving up of one‟s rights or interests. Its effect
is extinction of one‟s rights in a property; there is no intention that the person relinquishing
his interest is conveying that interest in favor of another person. Relinquishment is therefore,
not a transfer so that it may amount to a transfer of property as defined in Section 5 of the
Act.64
57
Official Assignee, Madras v. Tehmina Dinshaw Tehrani, AIR 1972 Mad. 187.
58 th th
Mulla, Transfer of Property, 5 Ed., p. 51. Cited in Sinha, Dr. R.K., The Transfer of Property Act, 11 Ed.,
Central Law Agency, Allahabad, 2010, p. 57.
59
(1975) 1 MLJ 236.
60
AIR 2003 AP 498.
61
Provident Investment Co. v. Income Tax Commissioner, AIR 1951 Bom. 95.
62
Kuppuswami Chettiar v. Arumugam, (1967) 1 SCR 275, AIR 1967 SC 1395.
63
Thayyil Mammo & Another v. Ramunniram & Another, AIR 1966 SC 337.
64
See supra 62.
Page | 10
Charge
65
Gobinf v. Dwarkanath, (1908) 35 Cal. 837.
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Bibliography
Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004.
Nandi, N., The Transfer of Property Act, 1882, 2nd Ed., Dwivedi Law Agency,
Allahabad, 2010.
Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company
(P) Ltd., Allahabad, 1989.
Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency,
Allahabad, 2010.
Sohoni, Vishwas Shridhar, Transfer of Property Act, Premier Publishing Company,
Allahabad, 2008.
The Transfer of Property Act, 1882, Bare Act, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2010.
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2nd Ed., Wadhwa
and Company Nagpur, New Delhi, 2004.
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