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Define Transfer of Property and Explain About The Essential Elements of A Valid Transfer

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539 views

Define Transfer of Property and Explain About The Essential Elements of A Valid Transfer

Uploaded by

Kushagra Shukla
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Define transfer of property and explain about the

essential elements of a valid transfer(5-9)


The Transfer of Property Act, 1882, defines *transfer of property* under Section 5 as an act by which
a living person conveys property to one or more other living persons, either in the present or the
future. Here, a "living person" may include an individual, company, association, or any body of
individuals. In this context, *property* encompasses tangible items (like a house), rights exercised
over material things (such as the right to sell or gift property), and intangible rights (like debt
repayment). For a transfer to be valid, it must create a new title or interest in the transferee;
otherwise, it does not meet the Act’s criteria.

Essentials of a Valid Transfer of Property

For a transfer to be recognized as valid under the Transfer of Property Act, the following conditions
must be met:

1. Transfer Must Be Between Two Living Persons

The Act mandates that property transfers occur between living persons, a concept known as *inter
vivos* transfers. Both the transferor and transferee must be alive at the time of transfer. The
conveyance must effectively move the property from one person to another and establish a new title
or interest in the transferee's favor. If this condition is not met, the property transfer is invalid.

2. The Property Must Be Transferable

Section 6 of the Act outlines that, as a general rule, property of any kind may be transferred, but it
also identifies specific exceptions where transfer is prohibited:

- Spes Successionis: This refers to the mere chance of inheriting property, which cannot be
transferred. For example, a person expecting to inherit property upon another's death cannot legally
transfer this expectation.

- Right of Re-entry: The right to re-enter a property, commonly reserved in certain leases, is not
transferable as a standalone right separate from the land.

- Easements: Rights such as a right of way or light over another’s land cannot be transferred
independently as they are attached to the property itself.

- Restricted Interests: An interest specifically meant for personal use, such as a house lent for
personal purposes, is not transferable.

- Maintenance Rights: The right to maintenance, intended for personal benefit, is non-transferable.

- Right to Sue: The right to sue is exclusive to the aggrieved party, meaning it cannot be transferred
to another.

- Public Offices and Pensions: Public offices, which are based on personal qualifications, and
pensions, which are granted for past services, cannot be transferred.
- Res Communes: Resources held in common, like air, water, and sea, are not transferable as they
are shared and cannot be individually owned.

3. The Transfer Should Not Oppose the Nature of Interest

Certain things, such as air, water, and sunlight, cannot be transferred because they are natural
resources or *res communes* that belong to all. A transfer opposing the intrinsic nature of these
resources is invalid, as they are inherently communal and indivisible.

4. Lawful Consideration and Object

A valid transfer requires that both its consideration (payment or compensation) and objective are
lawful. Section 23 of the Indian Contract Act specifies that a consideration or object is unlawful if it:

- Is prohibited by law.

- Defeats the purpose of any law.

- Is intended for fraud.

- Involves harm to a person or their property.

- Is immoral or contrary to public policy.

If any transfer is based on an unlawful consideration or objective, it is deemed void under the Act.
This requirement ensures that transfers are conducted ethically and within the bounds of the law.

5. Competency of the Transferor

Section 7 of the Transfer of Property Act requires that the transferor be legally competent to
execute a transfer. To be competent, the person must be able to contract, which means they must be
of legal age (18 years or older), of sound mind, and not disqualified by law from contracting. This
competency standard is set by Section 11 of the Indian Contract Act, ensuring that only persons with
full legal capacity can engage in property transfers.

6. Proper Form and Manner of Transfer

Section 9 of the Transfer of Property Act allows for oral transfers unless a written document is
explicitly required by law. Some property transfers must be documented in writing to be valid,
including:

- Sale of immovable property valued at Rs. 100 or more.

- Transfer of actionable claims.

- Exchange of property valued at Rs. 100 or above.

- Mortgages, regardless of the value involved.


Written documentation is required for these types of transactions to ensure clarity and legal
enforceability. Following these formalities provides protection for all parties involved and confirms
the transfer’s legality.

Conclusion

The Transfer of Property Act establishes these essential conditions to ensure a transfer's validity. By
meeting each requirement — from ensuring the transfer occurs between living persons and verifying
the lawful nature of the property, to confirming the competency of the transferor and documenting
the transfer where required — property transfers align with principles of fairness, legality, and public
policy. If these essential conditions are not met, the transfer may be considered void or invalid. These
stipulations serve to safeguard the rights of the transferor and transferee, promoting just and orderly
transactions within property law.

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