THE TRANFER OF PROPERTY ACT,1882

Dr Shakuntala Misra National Rehabilitation University

THE TRANFER OF PROPERTY ACT,1882

Project on Section 5 of the Transfer of Property Act,

1882

Gaurav Pandey
2015/ B.Com LL.B. / 01
B.Com LL.B. (Hons.)
III Year, V Semester
Submitted on : 28/10/2017
Dr Shakuntala Misra National Rehabilitation University,
Mohan Road, Lucknow,
 THE TRANFER OF PROPERTY ACT,1882

TABLE OF CONTENTS
Topic Covered Page Number

The Transfer of Property Act, 1882: Bare Provision 1

ACKNOWLEGEMENT 4

TRANSFER OF PROPERTY: AN INTRODUCTION 5

LIVING PERSONS 7

IN PRESENT OR IN FUTURE 9

TO HIMSELF 10

FAMILY SETTLEMENT 11

COMPROMISE 11

PARTITION 12

SURRENDER 13

RELINQUISHMENT 14

CHARGE 14

Bibliography 13
 ACKNOWLEGEMENT

I, GAURAV PANDEY, I feel myself highly elated, as it gives me tremendous pleasure to

come out with work on the topic SECTION 5 OF TRANDER OF PROPERTY ACT ,.

First of all I express my sincere gratitude to my Professor MRS. VIJETA DUA TANDAN
who enlightened me with such a wonderful topic. Without Him, I think I would have
accomplished only a fraction of what I eventually did. I thank her for putting her trust in me
and giving me a project topic such as this and for having the faith in me to deliver. Her sincere
and honest approach have always inspired me and pulled me back on track whenever I went
off-track. Maam, thank you for an opportunity to help me grow. I also express my heartfelt
gratitude to staff and help for the completion of this project.
Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I would thank my brother for guiding me.

THANKS YOU.

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 THE TRANSFER OF PROPRERTY ACT, 1882

Bare Provision of the Act

Of Transfers of Property by Act of Parties

(A) Transfer of Property whether moveable or immovable

5. Transfer of property Defined. In the following sections transfer of property

means an act by which a living person conveys property, in present or in future, to one or more
other living persons, or to himself, or to himself 1 and one or more 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
2
individuals .

TRANSFER OF PROPERTY: AN INTRODUCTION

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

1
Ins. by Act 20 of 1929, sec. 6.
2
Ibid.
3
See Mulla, The Transfer of Property Act, 9th 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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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 whereby 5a
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.6 Section 6 says that property of any kind may be
transferred, etc. Thus an actionable claim is property; 7 and so is a right to a reconveyance of
land.8 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.9

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,10 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.11

5
AIR 1937 Rang. 47.
6
Bansigopal v. V.K. Banerji, AIR 1949 All. 433.
7
Rudra Perkash v. Krishna, (1887) 14 Cal. 241, 244.
8
Narasingarji v. Panaganti, AIR 1921 Mad. 498.
9
Jones v. Skinner, (1835) 5 LJ Ch. 87, 90.
10 AIR 1986 SC 368.
11
Sinha, Dr.R.K., The Transfer of Property Act, 11 th 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.12

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 transfer13. 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, 1897.14

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.

Where property was acquired by or transferred in favor of Secretary of unregistered Society

or Club, Secretary of unregistered Club or Society has no legal status to hold or acquire the
property in question because Secretary of unregistered Society or Club cannot come within the
definition of living person within the meaning of Section 5 of the Act. 15 As such the
application by members of club claiming right of pre-emption on ground of transfer of
adjoining land was not maintainable.16

12
Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book Company (P) Ltd., Allahabad, 1989.
p. 113.
13
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.
14
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2 nd Ed., Wadhwa and Company Nagpur,
New Delhi, 2004. p. 93.
15
Usha Rani Kundu v. Agradut Sangha and other, AIR 2006 (NOC) 911 Cal.
16
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.17 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.18

An idol is a juristic person capable of holding property, 19 but it is not a living person. An
idol not being a living person, a dedication of land to an idol does not fall within the terms of
Section 12220 and need not be made in writing or by a registered instrument under Section
12322 of the Act.21 It has also been said that an idol is only the symbol of the deity and that it
would be contrary to the Hindu religion that a deity make an acceptance of worldly goods 22 as
discussed in the case below.

In Bhupati Nath v. Ram Lal,23 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 ancestors 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
24
Act.

17
Ashrafi Devi v. Prem Chand, AIR 1971 All. 457 (464).
18
Ibid.
19
Pramatha Nath v. Jai Indra Bahadur Singh, (1919) 46 IA 228; 42 All. 158; AIR 1919 PC 55.
20
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.
21
Narasimha v. Venkatalingum, (1927) Mad. 687.
22
See Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p. 81.
23
(1910) 37 Cal. 128.
24
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.,25Martin, 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,26 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.27

A transfer of property may take place not only in present, but also in the future, 28 but
the property must be in existence. The words in present or in future qualify the word
conveys, and not the word property. 29 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.30

To sum it up a transfer of a property may be made so as to take place with immediate

effect or to take place on a future date. The transferor can make arrangement that the property
is vested or accrues to the transferee immediately after the completion of the transfer. He may
also make such arrangements in which the vesting of the interest of the property is postponed
to a future date. He is free to transfer a property also upon the fulfillment of certain conditions.31
Some illustrations are given below:34

25
(1922) 24 Bom. LR 861.
26
(1907) 31 Bom. 165.
27
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2 nd Ed., Wadhwa and Company Nagpur,
New Delhi, 2004. p. 95.
28
Sumsuddin v. Abdul Husein, (1907) 31 Bom. 165, 172.
29
Jugalkishore v. Rao Cotton Co, AIR 1955 SC 376.
30
Mohendra v. Kali, (1903) Cal. 265, 274.
31
Sinha, Dr.R.K., The Transfer of Property Act, 11 th Ed., Central Law Agency, Allahabad, 2010, p.
52. 34 Ibid.
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 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.

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.

The conveyance may, therefore, be present, future or conditional.

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. 32 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.33

32
Naranbhai v. Suleman, (1975) 16 Guj. LR 289.
33
Sinha, Dr.R.K., The Transfer of Property Act, 11 th Ed., Central Law Agency, Allahabad, 2010, p. 54.
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 FAMILY SETTLEMENT

Family settlement or family arrangement is not a transfer of property. In a joint family property
all the members have their specific shares but they are not separated and are held conjointly by
all of them. When a family settlement takes place, the already existing specific shares of the
members of the family are defined and separated in order to avoid any possible disputes. Thus,
in a family settlement there is a mutual agreement between the members of a family to hold
their respective shares separately. It simply acknowledges and defines the title for each
member.34 In Sadhu Madho Das v. Pandit Mukund Ram,35 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.36

In Ramdeo Foods Products Pvt. Ltd. v. Arvindbhai Rambhai Patel,37 a memorandum of

understanding was executed to resolve the dispute between the members of a family. The
Supreme Court held that such memorandum agreed between the family members can be treated
as family settlement and the Court cannot interfere with this. The Court will not

easily disturb it. Accordingly it was held as family settlement and not as a transfer of
property.

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.38

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

34
Tek Bahadur v. Devi Singh, AIR 1966 SC 292.
35
AIR 1955 SC 481
36
Sinha, Dr.R.K., The Transfer of Property Act, 11 th Ed., Central Law Agency, Allahabad, 2010, p. 55.
37
AIR 2006 SC 3304.
38
Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1.

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defined.39 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.40

In other words compromise is not a transfer of property. Compromise means agreement for
the settlement of doubtful claims between the parties in respect of some property. Like family
settlement, here too the titles or interests of the parties are antecedent or already existing; the
compromise deed simply defines them.41 Since there is no conveyance in compromise it is not
a transfer of property.

PARTITION

A partition of property is not a transfer of property, but is analogous to an exchange42. In other

words partition means separating the parts of co-owned property. If in a property there are
several co-owners having, under the law, their respective interests but the whole property is
neither used nor enjoyed by them separately then, after the partition each member gets merely
the separate right of enjoyment43. Accordingly it has been held that partition is not really a
process by which a joint enjoyment is transformed into an enjoyment severally, and no
conveyance is involved in the process as the conferment of a new title is not necessary.44 It
simply effects a change in the mode of enjoyment of property but it is not an act of conveying
property from one living person to another.45 In Mohar Singh v. Devi Charan,46 the Supreme
Court explained the legal nature of a partition in the following words:

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 cosharers.

39
Balkrishna v. Raghunath, AIR 1951 Nag. 171.
40
Reddiar, MP v. A. Ammal, AIR 1971 Nag. 182.
41
Abbas Bandi Bibi v. Muhammad Raza, AIR 1929 Oudh 193.
42
Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p. 76.
43
Sinha, Dr.R.K., The Transfer of Property Act, 11 th Ed., Central Law Agency, Allahabad, 2010, p. 56.
44
Chanaderwati v. Lakhmi Chand, AIR 1988 Delhi 13.
45
Indoji Jethaji v. Kothapalli, (1919) 54 IC 146.
46
AIR 1988 SC 1365.

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Mookharjee, J., in Atrabanessa Bibi v. Safutullaah Mia,47 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,48 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 properties. It was held
that the document required to be duly stamped and properly registered.49

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.50

SURRENDER

Surrender is not a transfer of property as defined in the section.51 Surrender means merging of
a lesser interest with a greater interest in such a manner that the greater interest is not enlarged.
Surrender is therefore falling of lesser estate into greater. For example, A is landlord and B is
his tenant. A as landlord has ownership of the house. Ownership or absolute interest is a greater
interest. B as a tenant has also an interest in As house but Bs interest is lesser interest because
it is limited only to the right of enjoyment. Now, if B vacates the house before expiry of the
term of tenancy, it would amount surrendering of his right of residence. Here, the lesser interest,

47
(1916) 43 Cal. 504, 509.
48
(1966) SCR 349; AIR 1966 SC 432.
49
Vincent Lourdhenathan v. Josphine Syla Dominque, AIR 2008 NOC 1173 Mad.
50
Gurcharan Ram v. Tejwant Singh, AIR 2008 NOC 1650 P&H.
51
Makkan Lal Saha v. Nagendranath Adhikari, (1933) 60 Cal. 379; AIR 1933 Cal. 467.

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namely the right of residence, which was away from the absolute interest of the landlord during
tenancy, comes back to ownership. There is no creation of any new title or interest in favor of
the landlord. Thus surrender by a tenant to the landlord52 or by a widow to the reversioners56
has not been regarded as a transfer of property.

RELINQUISHMENT

Relinquishment is not alienation,53 unless intention to transfer is found to exist, as when it is

in favor of a person having no interest. 54 A registered instrument styled as a release deed
releasing the right, title and interest of the executant in the proprietary in favor of the release
for valuable consideration may operate as a conveyance.55

In other words, relinquishment means giving up of ones rights or interests. Its effect is
extinction of ones 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. 56

CHARGE

Charge is not a transfer of property. Charge is created on a property for securing a

payment out of that property. When the property of a person is charged for securing certain
payments e.g. maintenance, it is simply securing personal obligation out of the property. A
charge is, not transfer because the only right created under it is a right to payment out of the
property subjected to the charge.57

52
Morati v. Krishna, (1925) Nag. 455.
56
Kalka v. Jaswant, (1926) Oudh 69.
53
Provident Investment Co. v. Income Tax Commissioner, AIR 1951 Bom. 95.
54
Kuppuswami Chettiar v. Arumugam, (1967) 1 SCR 275, AIR 1967 SC 1395.
55
Thayyil Mammo & Another v. Ramunniram & Another, AIR 1966 SC 337.
56
See supra 62.
57
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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