Introduction

• Transfer means to convey a certain property from one person to another. Transfer of Property means the conveyance of such property.
• Provisions related to transfer of Immovable Property are dealt with by the Transfer of Property Act, 1882 (TPA).
• Section 3 of TPA defines Immoveable Property as property that does not include standing timber, growing crops or grass. The Act does not provide a clear or unambiguous definition and therefore following clauses are to be examined:
  • The Registration Act, 1908 under S.2(6) mentions that immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.
  • The General Clauses Act under S.3(19) mentions immovable property that it shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

How is Ananda Behera v. States of Orissa (1955) related to Transfer of Immovable Property?

• In this case the Plaintiff obtained the license to fish from Raja of Parikud by paying heavy sums of money and had the receipt of payment for the same. Orissa Estates Abolition Act was passed by virtue of which land owned by Raja of Parikud vested with the State of Orissa. The licenses were obtained by the Plaintiff dated prior to the land being vested in the state.
• The Court held that the Chilka lake is an "Immovable property" as per Section 3(26) of General Clause Act and Fisheries are the "Benefits Arising out of Land".
• The right to enter the land and carry-on fishing for the purpose of business is also regarded as "Benefits arising out of land" or "Profit a prendre".

What is a Transfer of Property?

• Section 5 of TPA defines “Transfer of property” - 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 and one or more other living persons.
• Living Persons include Company, Association Body of individuals, whether incorporated or not.

What are the Modes of Transfer of Immovable Property?

• Sale
  • Chapter 3 of TPA deals with ‘Sale’ and the relevant provisions range from Section 54 – Section 57.
  • Section 54 - Sale defined. — Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
  • Sale How Effected
    • Tangible Immoveable Property of the Value of One Hundred Rupees and Upwards - By a registered instrument.
    • Tangible Property of a Value Less Than One Hundred Rupees - By a registered instrument or by delivery of the property.
  • Delivery How Effected - When the seller places the buyer, or such person as he directs, in possession of the property.
• Mortgage
  • Chapter 4 of TPA deals with ‘Mortgage’ and the relevant provisions range from S.58 - S.99.
  • Section 58 - “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined. — A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
  • The transferor is called a Mortgagor, the transferee a Mortgagee. The principal money and interest of which payment is secured for the time being are called the mortgage-money. The instrument (if any) by which the transfer is affected is called a mortgage-deed.
• Charge
  • Chapter 4 of TPA deals with ‘Charge’ and the relevant provisions are from Section 100 – Section 104.
  • Section 100 - Charges. — Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions herein before contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
  • Primary requisites of charge:
    • Immovable property of one person is made security for the payment of money to another.
    • Transfer takes place by the act of parties or by operation of law.
    • This transaction does not amount to a mortgage.
• Lease
  • Chapter 5 of TPA deals with the provision of ‘Lease’ and the relevant provisions range from Section 105 – Section 117.
  • Section 105. Lease defined. —A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
  • Lessor, lessee, premium and rent defined — The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
  • Lease How Effected:
    • Lease of Immoveable Property from Year to Year, or for Any Term Exceeding One Year, or Reserving a Yearly Rent - By a registered instrument. Where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
    • All Other Leases of Immoveable Property - By a registered instrument or by oral agreement accompanied by delivery of possession.
• Exchange
  • Chapter 6 of TPA deals with ‘Exchange’ and the relevant provisions range from Section 118 – Section 121.
  • Section 118 - Exchange defined —When two persons mutually transfer the ownership of one thing for the ownership of another neither thing or both things being money only, the transaction is called an “exchange”.
• Gift
  • Chapter 7 of TPA deals with ‘Gift’ and the relevant provisions range from Section 122 – Section 129.
  • Section 122 - Gift defined — “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
  • Acceptance when to be made —Such acceptance must be made during the lifetime of the donor and while he is till capable of giving.
  • Transfer How Effected: By a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
• Actionable Claim
  • Chapter 8 of TPA deals with Actionable Claims and the relevant provisions range from Section 130 – Section 137 and the definition is provided by Section 3.
  • Section 3 defines actionable claim as a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

Conclusion

The transfer of property involves the conveyance of ownership or rights from one person to another, and it can be broadly categorized into two main types: immovable property and movable property. The immovable property is transferred intervivos (living person) having certain exceptions such as transfer of property to unborn persons.