TRANSFER OF PROPERTY

What do you mean by Transfer of Property?

Transfer of Property
Section 5 of the Transfer of Property Act defines the term transfer of property. Property from one person to another person can be transferred in several ways such as by way of private or a court sale, gift, will, inheritance, relinquishment etc., yet all these kinds of transfers are not subject to the application of Transfer of Property Act. Under section 5 of the Transfer of Property Act, the term transfer has been defined as an act of a living person whereby he conveys existing property to one or more living persons and only those transaction are covered under the term transfer are subject to the application of this Act. Transfer of titles that take place in other ways are governed by different enactments.
The following are the essential ingredients of the transfer of property

1. The transfer of property is an act
   Transfer of property is an act or process. Under this activity something is done by the person who wants the transfer of property. Property is not transferred automatically without transferor’s act. Transferring property would mean doing of this act or performing such acct. The legal effect of this act is passing of property from one person to another person.
2. Living person
   The Act governs transfers only between living persons or transfer inter vivos. The person who makes the transfer is called the transferor. The transferor must be in existence at the time of making of the transfer. The transferor must also be competent person i.e. the age of majority, of sound mind and not otherwise disqualified to transfer the property.
   The term ‘living person’ also includes a juristic person, a company or association or a group of individuals whether incorporated or not. As company have been included in the term ‘living person’ in this section, it clearly brings out that a company can effect the transfer of property but the same would be not be regulated by the provisions of this section.
   The provision of the transfer of Property Act shall not be applicable to any grant or other transfer of land or any interest therein to be made by or on behalf of the Government.
3. Conveys
   In a transfer of property the living person i.e., the transferor coveys the property. There must be conveyance in every transfer of property. Conveyance means any act by the transferor by which certain new titles of interest are created in favour of the transferee. The word ‘conveys’ includes any form of assurance inter vivos in which some new title or interest is created in the favour of the transferee. Before the transfer of property, the transferee does not have that particular interest. After the transfer of property, the transferee gets the particular interest which is given by the transferor. Anything done or any form of assurance by virtue of which transferee gets new title or interest which he did not have before the transfer is called conveyance.

In the case of Hemendra Nath Mukerji v. Kumar Nath Roy, 12 Cal WN 478, a egistered deed called a deed of disclaimer the executants relinquished all their right, title and interest and claim in the properties in favour of the releasee upon the condition that the releasee would discharge certain debts and the executants would be under no liability to pay those debts. Though the deed was stamped only as a release and not with ad valorem stamp. The Court held that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer.

In the case of Joginder kumar Goyal v. E of NCT Delhi, 2016 (158) DRJ 241, a power of attorney given by a fisherman cooperative society to another to manage fishery does not create an interest in the property and therefore would not amount to transfer. As immovable property can be illegally and lawfully transferred/ conveyed only by a registered deed of conveyance. GPA Sale or Sale agreement or Will transfers cannot be used to transfer immovable property.

4. In present or future The term in present or in future’ qualifies the word ‘conveys’ and not the term ‘property. It means that a transfer is a conveyance of such property that must be in existence at present, but whose conveyance may take place depending upon the terms of the contract concluded between the parties not only at present, but also in the future. It does not refer to the conveyance of future property, but may include conveyance of an existing property in future.

5. Property
The word property has a very wide meaning and includes property of all descriptions. It means movable properties such as cars or tables. It means immovable properties such as lands or houses. It also means intangible properties such as right to catch fish or an actionable claims or other beneficial interest in the property.

In Sunil Sidharthbai v. CIT, AIR 1986 SC, the Supreme Court has rightly observed that in general transfer of property means passing of right in the property from one person to another. Where all the rights in the property are transferred, it would be a transfer of property, but where only some rights are transferred, it would be a transfer of an interest in the property.

6. To another living person
There must also be another person to whom the property may be transferred. Such other person is called a transferee. Transfer of property is an act between, living persons, the transferee must also be a living person.
The transferee need not be a competent person. Transferee may be a minor, insane or even a child in mother’s womb. But the transferee must be in existence when the transfer is made. Property cannot be transferred to a person who is not in existence at the date of the transfer.

7. Transferor and transferee the same person
Normally the transferor and the transferee would be two separate individuals or group of individuals, the expression ‘to himself’ in section 5 indicates that there may be a situation where the transferor and the transferee can be the same person. No person can transfer property to himself in the same capacity but if he transfers property in one capacity to himself and receives it in some other capacity, then such transfer if permissible.

In the case of Naranbhai v. Suleman (1976) 16 Guj LR 289, court held that a Person may thus convey land to or vest land in himself in some other capacity. A person creating a trust can transfer the property from his individual capacity to himself as a trustee.