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PROJECT ON

Transfer Of Property By Act Of Parties and


Operation Of Law: A Critical Examination
TRANSFER OF PROPERTY ACT PROJECT SUBMITTED TO

Dr. VIKASH AGRAWAL


FACULTY OF TRANSFER OF PROPERTY ACT

Submitted by ASHISH KUMAR CHANDAHE


ROLL NO.- 33
SECTION- C

HIDAYATULLAH NATIONAL LAW


UNIVERSITY
RAIPUR, C.G.
i

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION
TABLE OF CONTENTS
1)
2)
3)
4)
5)
6)
7)
8)

Certificate of Declaration.iii
Acknowledgement...iv
Research Methodology..v
Introduction..1
Objective...2
Natural Resource Accounting an overview...............................................3
System of National Accounts......................................................................4
Evolution and development of National Income Accounting System in
India..6
9) System of Integrated Environmental and Economic Accounting7
10) Data-gaps, Availability and its necessity8
11) Natural Resource Accounting necessity and its effect on efficiency9
12) Conclusion10
13) Bibliography and Webliography..11

A PROJECT ON TRANSFER OF PROPERTY ACT

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TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

CERTIFICATE OF DECLARATION
I Ashish kumar chandahe hereby declare that the project work entitled submitted in HNLU,
Raipur, is record of an original work done by me under the able guidance of Dr. Vikash
Agrawal faculty member (Transfer of Property Act), HNLU, Raipur.

ASHISH KUMAR CHANDAHE


ROLL NO.- 33
SEMESTER 4
BATCH XI

A PROJECT ON TRANSFER OF PROPERTY ACT

iii

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

Acknowledgement
I feel myself highly exhilarated to work on this project involving Transfer Of Property by
act of parties and Operation of Law: A Critical Examination. And I have tried my level
best to throw light upon his personality and achievements.
I take this opportunity to thank Dr. Vikash Agrawal who had played the role of a central
character and always given me the courage and wisdom to shape my ideas in right direction.
Special thanks to the I.T. staff and library staff who have devoted their valuable time to give
me all sorts of suggestions, ideas and facilities regarding this topic.
Last but not the least I thank all the members of the H.N.L.U. and all others who have helped
me in the completion o this work.

A PROJECT ON TRANSFER OF PROPERTY ACT

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TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

RESEARCH METHODOLOGY
This project is based upon doctrinal method of research. This project has been done after a after a
through research based upon intrinsic and extrinsic aspects of the project.
Sources of Data:
The following secondary sources of data have been used in the project1. Articles.
2. Books
3. Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily analytical
and based on secondary source of data.

A PROJECT ON TRANSFER OF PROPERTY ACT

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

INTRODUCTION

The Transfer of Property Act 1882 was intended to define and amend the existing law, and not to
introduce any new principle.1It embodies principle of equity , justice and good conscience. 2The Chief
objects of TPA were first to bring the rules which regulates the transmission of property between
living persons into harmony with the rule affecting its devolution on death and thus , to furnish and
complement the work commenced in framing the law of testamentary and intestate succession and
secondly ; to complete the code of contract law so far as it relates to immovable property. 3The Act is
not exhaustive , and it does not profess to be a complete code. This is apparent from the omission of
the word consolidate, which occurs , for instance , in the preamble of Indian Evidence Act 1872. The
Preamble to the Indian Contract Act 1872 is worded in terms similar to the preamble of TP act. In
Irrawaddi Flotilla Co. v. Bhugwandas, which was a case under the Contract Act , the Privy Council
observed that the said Act did not profess to be a complete code dealing with the law relating to
contracts , that is purported to do no more than to define and amend certain parts of that law , and that
the legislature did not intend to deal exhaustively with the law relating to contracts.
Both the Parliament and the state legislature have the power to make laws with respect to Transfer of
Property other than agriculture land, which matter is included in entry 6 of the concurrent list in the
seventh schedule to the Constitution . Legislation relating to the relationship of landlord and tenant,
including rent control with respect to non-agriculture land , will come under entry 6 of listIII. The
subject of transfer of agriculture land is covered by entry 18 of the state list. A state law relating to
the transfer of agriculture land may override the provisions of the TP act, for instance , as to
mortgages of agriculture land. Transfer of the agriculture land , whether belonging to scheduled tribes
or other persons, would come under entry 18 of the list II,which carries with it not only a power to
make a law placing restriction on transfer and alienation of such including a prohibition thereof, but
also the power to make a law re-open such transfer and alienations. The Supreme Court has held that
the Public Premises Act 1971 in so far it deals with a licencee of premises other than premises
belonging to the Central government , falls in the entries 6,7 and 46 of list III . It is held Benami
Transactions Act 1988, is not an enactment relating to the transfer of property, but is a law relating to
trusts and trustees and therefore , cannot be related to the legislative head Transfer of Property in
entry 6 of list III.4
The Supreme Court ,in the case of Bharat Petroleum Corporation Ltd. V. P. Kesavan has held:
As would appear from the preamble of the transfer of property act, the same applies only to transfer
by act of parties. A transfer by operation of law is nit validated or invalidated by anything contained in
the act. A transfer which takes place by operation of law ,therefore,need not meed the requirement of
the provision of the transfer of property Act or the Indian Registration Act.
These words exclude transfer by operation of law ,ie, by sale in execution, forfeiture , insolvency or
intestate succession . It also Limits the scope of the Act to transfer inter vivos, and excludes
testamentary succession.

Tajjo Bibi V. Bhagwan(1899) ILR 16 All 295


Nalakath Suinuddin v. Kooridakan Sulaiman (2002) 6 SCC 1
3
Whitley Stokes, Anglo-Indian Codes
4
S Mohammad Anwaruddin V. Sabina Sultana
2

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

What is Transfer of Property?


All properties either movable or immovable constantly remain in the state of transfer and no society
exists without such activity. A transfer may be by way of sale, exchange, gift, lease, mortgage or
actionable claim. Prior to the year 1882 no law existed which really governed activities of transfer of
properties in India and in the absence of statutory enactments English Law was adopted which was
not satisfactory due to entirely different social conditions prevailing in India from that of England.
Since the year 1882 the law relating to the transfer of properties by the act of the parties is codified in
the Transfer of Property Act, 1882. The Act contains provisions defining as to what is transfer of the
property, what may be the transfer, person competent to transfer, conditions restraining the transfer,
transfer for the benefit of unborn person, transfer in perpetuity for the benefit of public, vested
interest, contingent interest, conditional transfer, etc. It provides for sales, mortgages, charges and
leases of immovable properties, exchanges, gifts, and transfer of actionable claim. Though not
exhaustive, this act encompasses important transactions of properties.
Section 5 of Transfer Of Property Act, 1882Transfer of property defined.In the following sections transfer of property means an actfby
which a living person conveys property, in present or in future, to one or more other living persons, or
to himself, or to himself and one or more other living persons; and to transfer property is to perform
such act.
[In this section living person includes a company or association or body of individuals, whether
incorporated or not, but nothing herein contained shall affect any law for the time being in force
relating to transfer of property to or by companies, associations or bodies of individuals.]
Transfer of Property has been defined in section 5of the TP Act meaning an act by which a living
person conveys property; in present [or in future to one or more other living persons and to transfer
property is to perform such act.
Transfer can be only between/amongst living persons.
A transfer presupposes two distinct persons; one of whom is called a transferor and the other
transferee. Section 5 of the Act as it originally stood did not indicate what the expression living
person, as used in that section, really meant. The Amendment Act, 1929 added a paragraph to the
section for the purpose which says : "In this section living person includes a company or association
or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law
for the time being in force relating to transfer of property to or by companies, associations or body of
individuals."
According to this provision, the expression living persons include juristic persons such as a
corporation; since such persons being the creatures of law are regarded as standing on the same

footing as other living beings. An idol, however, though a juristic person and capable of
holding property, is not a living person and therefore, a dedication of a property to an idol is
not a transfer and need not be made in writing or by a registered instrument under Section 123 of the
Act.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

Analysis of definition.

1. Transfer of property has special technical meaning in Transfer of Property Act. Only conveyances
are transfer of property for the Act. Three modes convey absolute title e.g., sale, gift, exchange. Two
convey limited interest e.g., mortgage and lease.
2.
Transfer inter vivos alone are included as transfer in Transfer of Property Act, e.g., transfer
from living person or persons to living person or persons.
3.
Transfer can be present or future but transferor and transferee must be living -persons. The
only exception is Section 13 of Transfer of Property Act.
4.
Living person is a wider term than natural human beings. It includes juristic persons like
company and other like associations or body of individuals whether registered or not registered.
5.
Other laws governing transfer to or by the juristic persons etc. are not affected by Transfer of
Property Act.
It will be observed from this definition that the term transfer used in the Act is not in its widest and
most generic sense comprehending all the species of contract which pass real rights, or interests, but
only in strict limited sense e.g., sale, gift, exchange, lease and mortgage. The essence of the word
transfer is to convey, and therefore, transfer of property would ordinarily include not only the five
specific categories of transfer dealt with in the Act, but any transaction which has the effect of
conveying any property or any interest therein from one person to another. Succession, court sales,
auction, inheritance all effect the transfer of property from one hand to another; but these are not
covered by Transfer of Property Act. Provisions of Transfer of Property Act do not apply to these
cases.
Act not exhaustive of all kinds of transfers.
Section 5 makes it clear that only transfers inter vivos are dealt with in the Act. Even as to transfers
inter vivos the Act is not exhaustive. It deals with sale, mortgage, gift, lease and exchange. There may
be other kinds of transfers but they would not be governed by the Transfer of Property Act. If a
transfer in question is governed by the Transfer of Property Act, it may be oral or written. If it is
reduced to writing, it need not be registered unless it is compulsorily registrable under the Indian
Registration Act.
Section 17(1) of Registration Act deals with 5 situations wherein registration is compulsory e.g., Gift
deed, Sale deed of immovable worth Rs. 100 or above, annual lease, transfer of decree or award etc.
Clause (2) enumerates 13 exceptions e.g. composition deed, endorsement or transfer of debenture,
share, Government grant of immovable property, instrument of partition made by revenue officer etc.
Clause (3) makes authority to adopt as compulsorily registrable. Section 18 enumerates 7 situations in
which registration of the deed is optional, e.g., Instruments transferring? immovable property of less
than Rs. 100 worth, lease for period less than 1 year, wills etc.5 However, the registration of Will
under U.P.Z.A. & L R Act, 1951 is compulsory.

Operation of Law
5

Kempraj v. Burton Son and Co., A.I.R. 1970 S.C. 1872.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION
Operation of law is a term used to describe situations where rights or liabilities are conferred
automatically, instead of as the result of a specific legal action. A classic example of assignment of
rights by operation of law can be seen when someone dies without leaving a
will. Operation of law determines the heirs and transfers the property to them. This allows the
estate to be handled and limits legal wrangling.
The law has a number of provisions in place designed to address situations when changes or transfers
need to occur and there is no directive in place to determine what to do. Otherwise, issues could
remain pending indefinitely. Some examples of situations where operation of law can come into play
include cases in which people fail to file legal objections, judges do not rule on motions in a timely
fashion, or people do not act to secure a right or avoid a liability.
People do not have to take any actions for assignment by operation of law to occur. In the example of
a person who dies intestate, the property is transferred to the presumed heirs by default. The laws of
inheritance spell out the hierarchy of heirs, allowing an appointed executo to determine who is first in
line for the proceeds of the estate. If there is a dispute, such as a question about someone's relationship
to the deceased, it can be brought up while the estate is processed.

Sometimes, it is possible to dispute a transfer or change of status that happens as a result


ofoperation of law. In these cases, people must be able to demonstrate that they were genuinely not
aware of the situation which necessitated the change. Not being aware, the person had no opportunity
to take an appropriate action to address the situation. Legal remedies are sometimes available to
reverse the change, as seen in cases where people forfeit the contents of an inactive bank account to
the state and can later restore the funds under unclaimed property laws.
It is important for people to be aware of the role that operation of law can play in their own lives.
Failure to act in a timely fashion on a matter of a legal nature may result in extinguishment of rights,
as seen in cases of adverse possession. People can also be shouldered with liabilities if they do not
pay close attention. People who can be vulnerable to assignments of liabilities or extinguishments of
rights include property owners and certain professionals such as doctors .

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

Abandonment or release of claim

An abandonment of a claim to property is not transfer. 6 A relinquishment in favour of a coparcener is


not a transfer.7 A Hindu widow's surrender in favour of the nearest reversionar is not a transfer.8 The
reason in all these cases is this : In a transfer as defined by Section 5, some proprietary right of the
transferor is conveyed to the transferee. In the abandonment, relinquishment or surrender, there is only
the withdrawal of the claim and its extinction, but no conveyance of it to the transferee, and so they
are not transfers as defined in Section 5 of Transfer of Property Act.
In K. Hatchi Gowder v. H. Bheema Gowder,9 it was held that a release deed could not be effective to
transfer title. It can only feed title but cannot transfer title. If two persons claim the same property
adversely against each other, release deed by one of them to the other may be effective to complete or
place beyond doubt the latters title to the property.
In A.S. Krishnamurthy v. CM Revanna,10 one co-owner relinquished her 1/3 share in undivided
property to another who had 5/8 share. This made transferee absolute and full-owner. Document of
release was held to be a valid document. He could as such issue valid notice of termination under
Section 106 of T.P. Act.
There are many field under which Transfer of Property Act does not apply , These all property is
being transferred by Operation of law -

Family arrangement
A family arrangement is a transaction between members of the same family intended to be generally
and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by
preserving the family property or the peace and security of the family by avoiding litigation or by
saving the honour (Halsbury, Laws of England Vol 17, Third Edition pp. 215-216). Therefore, where
a deed of settlement between the members of a family was entered into, the family arrangement
would be binding on the parties even though the title of one of the parties to the litigation was not in
dispute.11 It is to be noted here that the party taking advantage under family arrangement is estopped
from turning back from arrangement or trying to revoke it. 12

S.K. Sattar v. Gundappa,13 is a leading decision of Supreme Court on family arrangement. The family
arrangement is not transfer of property. It is a transaction between members of the same family for the
6
7
8

Khunni Lai v. Govinda, 33 All 356 (PC).


Subamma v. Bala Subbareddi, (1945) 1 MLJ 140 (FB).
Natwar Lai v. Dadubhai, AIR 1954 SC 61 : (1954) 56 Bom. L.R. 447 (SC).

A.I.R. 1960 Mad. 33.

10

AIR 2010 NOC (Karnataka) 2692.

11

Ram Charan Dass v. Mst. Girjanandini Devi and others, A.I.R. 1959 Ail. 473.

12

ThayyullatJi.il K Kannan v. Thayyullathil Kalliani, A.I.R. 1990 Ker. 226.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

benefit of the family so as to preserve the family property, the peace and security of the family,
avoidance of family dispute and litigation and for saving the honour of the family. The assumption is
that there was antecedent title in the parties and the arrangement acknowledges and defines what that
title is. It is not conveyance of property from a person who has title to a person who has no title.
The true nature of family arrangement is that it does not involve any transfer. Therefore, a family
arrangement to which reversioners under Hindu Law are parties is not prohibited by Section 6(a) of
Transfer of property Act.14
A family arrangement by which the antecedent right of the parties is acknowledged and defined, is not
a transfer of property, as it does not convey any new and distinct title to the heir of the parties. 15 A
bona fide arrangement of doubtful claims is not a transfer of property at all, but really a recognition of
the title of the opposite party and an abandonment of all further claims to it. Such an arrangement is
not a transfer within the meaning of the Act. 16
In AIR 2009 (Mad.) 1061, the Court held that family arrangement can be oral but if it is to be
recorded, it should be by way of memorandum. If it is in evidence of any relinquishment of any
immovable property it would require registration under Section 17 of Registration Act.

Family settlement
The principles of family settlement were quoted with approval by Supreme Court in Hansa
Industries Pvt. Ltd. v. Kidarsan Industries,17 The family settlements are governed by the principles
which are not applicable to strangers. The court examines the settlement keeping the broadest interest
of the family. Family settlement is to be given effect to and no technical grounds are permitted to
disturb the settlement. It may be oral. When so, no registration is required. When it is written, the
deed must be registered. To be seen is, whether it is bare memorandum prepared after oral settlement
or it is a document containing terms and recitals, of family settlement. No registration in the first case;
in the second it is required to be registered.
In this case, the question was whether a covenant in family settlement incorporated with the consent
of parties could be avoided in pretext of practical inconvenience of living in same house. The court
held. No it cannot be avoided. It would operate and would be enforced. 18
Section 6 deals with the transfer of property i.e., transfer of right of property by one party to another
party. Since the transactions of family arrangement or compromise of doubtful claims or
relinquishments or renunciations does not constitute the transfer of any right of property from one
party to another, Section 6 does not apply to those transactions. 19 The family settlement or
compromise is based upon the assumption that there was an antecedent title of some kind in the
parties and the agreement acknowledges and defines what that title in dispute is. 20

13
14

A.I.R. 1997 S.C. 998.


A.I.R. 1959 All. 473.

15

Khunni Lai v. Govinda, 33 All. 356 (PC).

16

Inder Pal v. Saranam Singh, A.I.R. 1951 All. 823.

17

A.I.R. 2007 S.C. 18.

18

Manish Mohan Sharma v. Ram Bahadur, A.I.R. 2006 S.C. 1690.


19
20

Ram Charan v. Girjanandini, A.I.R. 1959 All. 473; see also M.P. Reddiar v. A Ammai, A.I.R. 1971 Mad. 182.
Chander Das v. Debi Das, A.I.R. 1951 All. 522.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

The converting of an expectancy as to a certainty and avoiding chance of litigation in future is a good
consideration for a family settlement. 21 For a valid family settlement, the existence of family dispute
is not necessary.
A family settlement differs from compromise in the sense that while the latter implies an existing
dispute, family settlement may be concluded for avoiding future disputes.
Settlements are not uniformIt may bring about Transfer or Conferment of rights instantly upon parties to it. If any party is not
entitled to the property (If immovable) under relevant Law of Succession, then that settlement
operates as transfer and has to be registered.
Family settlement and family arrangement are almost interchangeable expressions but the term family
settlement is a legal terminology, and carries a definite legal meaning whereas family arrangement is
a term that is usually made use of without meaning anything significant to the contrary of family
settlement.
Where the self-acquired property was disposed of by will it was held that successors of testator
cannot change devolution or mode of succession by entering into family arrangement. 22
In the case of Bachchu v. Harbans,6 there was a dispute regarding joint family property. The dispute
was referred to arbitration where both parties came to an agreement that after the death of the
widows, the property in the possession of widows would be divided equally among the parties. The
agreement, being a family settlement, was held to be valid.
A, Bf C and D are four separated brothers. A and B die. The surviving brothers, named C and D came
to an agreement that one of them who married the widow of A will take share of A and the other, after
the death of the widow of B will get the share of B. The agreement is a family arrangement and
therefore it is valid.23

Compromise
In the case of in Mahesh Chandra Sharma v. Smt. Raj Kumari Sharma, the testator bequeathed the
house for life to the wife and then to the son. The wife was prohibited from transferring the house.
After the death of the testator, the dispute arose between mother and son. The validity of the will was
disputed in suits that were filed. However, they (mother and son) reached compromise. The mother
had acknowledged and accepted his son's title to house in lieu of right of residence in the first floor
and cash for maintenance. The Honble Supreme Court held that the compromise de hors their claims
under Will. Compromise does not amount to transfer and is not incompetent and ineffective for being
inconsistent with the terms of Will.
In the case of Mst. Bibi Sayeeda and others v. State of Bihar and others,24 it has been held that the
right to hold bazar (market) is integral to immovable property.

21

Ram Charan v. Girjanandini, A.I.R. 1959 All. 473.

22

A.I.R. 1953 All. 213.

23

Pokhar Singh v. Mst. Dulari, A.I.R. 1930 All. 687.

24

A.I.R. 1996 S.C. 1936.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

Partition

A partition is not a transfer because it merely affects a change in the mode of enjoyment of property
and is not an act of conveying property from one living person to another. 25 A partition of a joint
Hindu family property is not a transfer. In a partition each co-owner gets a specific property in lieu of
his right in all the joint properties. In case of Radha Krishnayya v. Sarasamma,26 Subbarao, J.
observed : "Partition is really a process in and by which a joint enjoyment is transformed into an
enjoyment in severality. Each one of the sharers had an antecedent title and therefore no conveyance
is involved in the process as a conferment of a new title is not necessary. The crucial test of a
transfer, namely, a conveyance by a person in favour of a person having no right in the property
previously is not satisfied. For this reason partition is not a transfer. Likewise, the Madras High Court
has held the view that in the case of an unequal partition, no transfer takes place. 3 Partition is really a
process in and by which a joint enjoyment is transformed into an enjoyment in severality. Each one of
the co-sharers had an antecedent title and, therefore, no conveyance is involved in the process as a
conferment of a new title is not necessary.27
Mst. Girija Bai v. Sada Shiv,1 Commissioner of Income Tax Gujarat v. Kishan Lai,28 V.N. Sarin v. Ajit
Kumar,29 and S.K. Sattar v. Gundappa,l are leading pronouncements of Privy Council and Supreme
Court of India accepting the proposition that partition in Hindu Law is not transfer ofproperty. The
partition does not give title. It does not create any interest. It only enables the sharer to obtain what is
his own in a definite and specific form for purposes of disposition independent of the wishes of his
former co-sharers. The incidents of joint family property are that each coparcener has an antecedent
title to the said property though its extent is not determined until partition takes place. That being so,
the partition really means that whereas initially all the coparceners had subsisting title to the totality
of the property of the family jointly, that joint title is transformed by partition into separate titles of
the individual .coparceners in respect of several items of properties allotted to them respectively.
In Aralappa v. Jagannath,30 the question was whether any person can file suit for declaration of his
share without claiming possession on basis of partition deed? The court held that such suit for
declaration alone is not maintainable because partition does not create any interest in joint family
property. It is already there. Mere declaration is not possible.

Surrender
In Makhan Lai Saha v. N.N. Adhicary,31 it was observed : the word transfer has not been defined in
any statute of law applicable to this country. The word surrender is used in Transfer of Property Act
25

Indoji Jithaji v. Kot hap alii, 54 IC 146 : Pokhar Singh v. Dulari, 52 All. 716.

26

A.I.R. 1951 Mad. 213.

27

Observation of Subbarao, J., referred in Chandrau'ati v. Lakhi Chand. A.I.R. 1988 Del. 13 (18).

28

A.I.R. 1965 S.C. 866.

29

A.I.R. 1966 S.C. 432.

30

A.I.R. 2007 Kar. 91.

31

A.I.R. 1933 Cal. 467.

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION

in relation to determination of lease (Section 111). There is no indication in the enactment that
surrender is a mode of transfer. The word surrender differs from transfer. In this case, the court
held that it is not possible to hold that surrender by a tenant is transfer. But there is no doubt that a
surrender in certain circumstances may amount to transfer and operate as such. 32 In surrender,
leasehold interest is given back to lessor who has reversionary right. It merges in reversion.

Will
These words exclude transfers for a will operates from the death of the testator.33 Transfer of share or
interest in a cooperative society to die nominee of its member operating on his death' would also be
excluded like Where the beneficiary is not a living person, the expression used is creation of an
interest in an unborn person contemplated under Section13 . A Muslims gentleman executed a
document styled as will. By this document , he divided certain properties amongst his daughter and
nephew in his life- time and gave possession to the persons named. It was held that it was conveyance
and not a will , even though it described the beneficiary as heirs . Not being a registered document ,
it was invalid. Attestation prior to execution of the document is liable to be ignored , and is on
attestation in the eyes of law.

ConclusionTransfer of Property by act of Parties works according to the Transfer of Property Act,1882 but there
are many transfer are being done which does not work according to that Act, that Transfer works
32

See also Mahabala Bhatta v. A.C. Gowda, (1969) 1 Mys. LJ 203.


33

.
9

TRANSFER OF PROPERTY BY ACT OF PARTIES AND OPERATION OF LAW:


A CRITICAL EXAMINATION
according to Operation Of Law. Whenever we discuss about the Will , it appears that there will be a
person who make his/her will for someone but it does not work under the Transfer of Property
Act,1882 .It will work just according to Law by their will. Same thing happen with the Partition,
Succession and so on.

There are many case has been registered under Transfer of Property Act,1882 but there may be some
possibility that transfer by Operation of Law can be filed under Transfer Of Property Act,1882. For
Example : A person make his will under which his son gets a Land for life time then to his son son
and after some time he transfer it to the third party for the consideration of money. At this point the
Transfer of the Land is legal under Transfer of Property,1882 but originally it is illegal under Personal
law. So as conclusion all transfer does not come under Transfer of Property Act,1882 there are many
personal law under the transfers can be governed

REFERENCES
a. The Transfer Of Property Act, Dr. R.K. SINHA
b.
10