Transfer of Property

Property Transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done.

Meaning of  Transfer of Property:

The  transfer of  property in India is subject to the provisions of the Transfer of Property Act 1882 and it is this law that regulates the assignment of property within India. This Act has specific conditions attached for the transfer of property and came into force on 1 July 1882.

As we all know property is classified into 2 kinds:

1. Immovable property: - This concept includes the Land, houses and all the structures that are constructed on the land.
2. Movable property: - This includes the properties like jewellery, FDs, Bank accounts and cash. 

Under the 1882 Act, 'transfer of property' means an act by which a person conveys the property to one or more persons, or himself, either in the present or in the future.

Transfer of Property with the  Available  Modes of Transfer:

Property  transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done. However, to be able to contract and sign a transfer document the ability to contract is important and to understand the ability to contract, we have to refer to section 11 of the Indian Contract Act, 1872.

Section 11 says that every person is competent to contract

1. Who is of the age of majority according to the law to which he is subject,
2. Who is of sound mind, and
3. Is not disqualified from contracting by any law to which he is subject.

Process amounting to the transfer of property:-

We can transfer properties using certain instruments as listed below: -

(1)   Gift Deed: - As we are all familiar, transferring property ownership by ‘gifting’ the property using a gift deed is used quite commonly in India. Under, Section 122 of the Transfer of Property Act, 1882, gifting a property must be done voluntarily and without consideration of any kind. An acceptance is made by the recipient during the lifetime of the donor. If the acceptance is not made in the lifetime of the donor, the gift becomes void.

(2)   Sale Deed: - The most commonly used method of property transfer is through a Sale Deed. A sale deed is executed between the two parties i.e. the  seller and buyer, for monetary consideration. The  sale is completed once the ownership gets transferred to the new owner, after registration at the office of the  Sub-Registrar of Assurances.  

Acts  Not  Amounting to  Transfer

(3)   Relinquishment Deed: - Under this mode of conveyance, an owner or relinquisher can release all his rights in favour of the other member without consideration. Stamp duty in these cases will be applicable only on the relinquished property and not the property, as a whole. The basic principle here is that no other person apart from the co-owners can create this Deed, hence there is no actual conveyance of title to any third party but among the co-owners themselves.

(4)   Will: - Will is also an effective medium through which the family property can be secured. However, this happens only after the death of the testator and does not qualify the condition of a living or a juristic person to be present. After the death of the testator, the legal heirs need to apply to the concerned civil authorities with a copy of the will, death certificate and Succession Certificate for completing the allocation process.

(5)   Partition Deed: - This method helps transfer property ownership from one person to another by a Partition Deed when there are jointly-owned properties. This helps to divide the property so that each person’s share is determined and partitioned. However, again this is between the co-owners and only the shares get  bifurcated, hence, it’s not a transfer.

(6)   Lease or Leave licence: Although it transfers possession for some time to the lessee or licensee, it’s not transferring the title of the property and the same devolves back on the owner after the expiry of the  lease/licence period.

Principles  Guiding the  Transfer of Property:

The conditions and principles guiding the transfer of property are as under:

1. Transfer to be effected to a living or juristic person: The main criterion for an effective transfer is that there must be a transfer of the property between living or juristic persons. It could be an individual, firm, corporate or  association but not  partnerships.
2. Transfer through Conveyance: A property can be conveyed in the present or the future.
3. The  property must be transferable: Section 6 of Transfer of Property Act, 1882 lists properties that cannot be transferred and if any of the properties fall in that category they cannot be transferred.
4. Transfer of property must be done by a competent person: The property transferred must be effected by a person of sound mind, the person must be a major or he is not a person disqualified by contract law.
5. The transfer should be made in a prescribed form: The sale of intangible property should be in a written format with requisite government fees paid.
6. The rule against perpetuity : Property must be transferred during the lifetime of an individual, as the perpetuity rule cannot be followed.  A property cannot be transferred to an unborn child and it is necessary to consider that while transferring the interest of the property, the person should be above the age of 18 years.
7. Conditional transfer of property: As we know under Section 25 of the transfer of property Act, 1882, the property may be transferred complying with the condition elaborated. However, if the condition becomes impossible, forbidden by law, opposed to public policy, or is immoral the transfer would be held void.

Conclusion:

The Transfer of Property Act was enacted to create an all-inclusive Act that can provide information about the transfer in a very simple language. Hence, as envisaged above,  we can effect the transfer of property through various sections of the Transfer of Property Act