Transfers Of Property By Act Of Parties

Chapter 2 – Transfer of Property Act, 1882 covered the Transfer of Property by the act of Parties sections 5 to 34.

Dear Readers, the understanding of this chapter easily, we are dividing this chapter into 3 parts. In Part- 1, we covered sections 5 to 12.

5Transfer of property defined
6What may be transferred
7Persons competent to transfer
8Operation of transfer
9Oral transfer
10Condition restraining alienation
11Restriction repugnant to interest created
12Condition making interest determinable on insolvency or attempted alienation

Transfer of property defined (Section 5)

In the following sections “transfer of property” means an act by which a living person conveys property, in present or in the future, to one or more other living persons, 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 the transfer of property to or by companies, associations or bodies of individuals.

 What may be transferred (Section 6)

Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it becomes payable.

(g) Stipends allowed to the military, naval, air force and civil pensioners of the government and political pensions cannot be transferred.

(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee.

(i) Nothing in this section shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as the such tenant, farmer or lessee.

Persons competent to transfer (Section 7)

Every person competent to contract and entitled to the transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent, and in the manner, allowed and prescribed by any law for the time being in force.

Operation of transfer (Section 8)

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include when the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and,

where the property is machinery attached to the earth, the movable parts thereof; and,

where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and,

where the property is a debtor another actionable claim, the securities, therefore (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and,

where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Oral transfer (Section 9)

A transfer of property may be made without writing in every case in which writing is not expressly required by law.

Condition restraining alienation (Section 10)

Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:

PROVIDED that property may be transferred to or for the benefit of women (not being a Hindu, Muhammadan, or Buddhist) so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

Restriction repugnant to interest created (Section 11)

Where, on a transfer of property, an interest therein is created absolutely in favor of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.

Condition making interest determinable on insolvency or attempted alienation (Section 12)

Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavoring to transfer or dispose of the same, such condition or limitation is void.

Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.



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