General principles of transfer of property act

What is transfer of Property Act? Is transfer of property immovable? Can power of attorney transfer property? Can transfer of property be made without writing?

The Act provides a clear, systematic and uniform law for the transfer of immovable property between living persons.

The object of the Transfer of Property Act is to define and amend law relating to Transfer of Property by act of parties and not to transfer by operation of law. A Transfer of Property is a contract and hence all necessary requirements to constitute valid contract are to be satisfied. Before that, the transfer of immovable property was governed by principles of English law and equity. The preamble of Act sets out the objectives of the legislation. The purpose of Act is to defined and ‘certain’ parts of the Law of transfer of property.

Ownership of the property carries with it certain basic rights, such as a right to have the title to the property , a right to possess and enjoy it to the exclusion of everyone else, and a right to alienate it without being dictated to, save in accordance with a provision of law. An absolute right to dispose of the property indicates that the owner can sell it for consideration or can donate it for religious or charitable purposes he may gift it to anyone, mortgage it or put it up for lease.

Save with the help of law, no other person can interfere with this power or right of the owner or dictate to him, what should be the manner of alienation, should he alienate or not, or even what kind of use it should be put to. In short, this right of alienation, that is one of the basic rights of the owner, cannot be unreasonably encroached upon by anyone through a private agreement. See full list on lawctopus.

Right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterised as property. Sections 1 1 and of the Transfer of Property Act deal with the imposition of restrictions or limitations in transfer of property. They contemplate situations where limitations may be imposed on the transferee by the transferor in the instrument on the interest so transferred. In such a case, the question that arises is: are such restrictions valid? If so, under what circumstances are they valid?

Section provides two exceptions to the rule againstinalienability. Secon property may be transferredfor the benefit of a woman who is not a Hindu, a Muslim, or aBuddhist, such that she shall not have the power to transfer theproperty or change her interest therein during her marriage. There, women could be givenproperty for their enjoyment without the right to alienate theproperty during her marriage. The rule protected women frombeing forced to alienate their property in favour of their husbands.

However, despite the abolition of the doctrine of coverture inEnglan this exception continues to remain on the statute booksin India. Section of the Transfer of Property Actdeals with repugnant conditions. Repugnant conditions are those that are inconsistent with the nature of the interest transferred.

Section prohibits the imposition of any condition directing the transferee to apply or enjoy in a particular manner, any interest that is transferred absolutely in a particular manner. Such conditions or directions are void and the transferee is entitled to receive property as if such a condition did not exist in the first place. The transfer itself is, however, not invalidated.

These conditions are inconsistent with the nature of the interest transferred. Therefore, they are called repugnant conditions. Illustration:A and B enter into a sale deed for a piece of land. The terms of the sale deed provides that the piece of land should be used for the purposes of starting a factory for the manufacture of jute textiles only.

B can enjoy the land in any manner that he chooses and the sale. Section 12provides that where property is transferred subject to a condition or limitation leaking any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void. This condition is invalid. Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

Although this relates to the restrictions on transfer of property , it is actually an exception to another general rule provided in Section of the Transfer of Property Act. B later becomes insolvent and A seeks to enforce the condition. The principle underlying this section is that a right of transfer is incidental to, and inseparable from, the ownership of the property.

The rule that a condition of absolute restraint is voi is founded also on the principle of public policy allowing free circulation and disposition of property. It is only a condition which absolutely restrains the transferee from disposing of the interest that is rendered void. A condition imposing partial restraint may be valid.

Moreover, every citizen has a right, under Article 300A of the Constitution of India, to property a. It doesn’t cover each and every aspect of transfer of property. Freedom of contract and freedom of alienation of property (i.e., the rights to enter freely into enforceable contracts on terms agreed to by the parties and to transfer property to whomever the owner wishes, on terms of his choosing) are the twin foundations of a market economy, an despite the challenges associated with extensive regulation and socialization of the market economies of the West, the basic principle regarding the transfer of property has remained unimpaired. It applies only to voluntary transfers. The student must lend much attention to the doctrines enshrined in the Act.

Case law is given its due place. General Clauses Act, the “Immovable property shall include lan benefits to arise out of lan and things attached to the earth or permanently fastened to anything attached to the earth. Transfer of a property by and ostensible owner is such a concept which was incorporated to protect the rights of innocent third parties vis-à-vis the property owners. Similarly, law relating to Gift of property is applicable for both properties. A: General principles as to transfer of property.

Conditional transfer Rule against perpetuity Rule of election Interest : vested and contingent. A: Transfer by ostensible owner, Rule of estoppel, Doctrine of lis pendense, fraudulent transfer and Part performance.