Brief Discussion about Transfer of Property Act, 1882

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

Advocate

 

Brief Discussion about Transfer of Property Act, 1882-

Tanmoy Mukherjee

Advocate

In a civilized society, transfer of property from one person to another is quite obvious. There are different laws/legislations governing the transfer of property, movable and immovable under different circumstances as stated below:

1. When a movable property (or goods) is transferred from one living person to another living person, the law applied is the Sale of Goods Act, 1930.

2. When property is transferred from dead person to living person/persons, the law applied is the Law Succession

(i) When a person dies, in testate i.e. dies leaving a testate/ will, the law applied is, Testamentary Succession.

(ii) When a person dies intestate i.e. dies without testate/will, the law applied is, Intestate Succession.

3. When an immovable property is transferred from one living person to another living person, the law applied is, Transfer of Property Act, 1882.

The Transfer of Property Act was passed in 1882 and came into force from 1st July 1882. It mainly deals with the transfer of immovable property and also movable property between two living persons i.e. transfer inter vivos. The Act does not apply to transfers by operation of law (E.g.: Succession, Court Sales, and Insolvency etc.).

Transfer of Property-

 Transfer of Property may be explained under the following categories-

1. Transfer of movable and immovable property.

2. Transfer inter vivos i.e. between two living persons and transfer from one dead person to one or more living persons; and

3. Voluntary transfers and involuntary transfers.

Meaning and Object-

The main object as enshrined in the preamble of the Transfer of Property Act was to amend/regulate the law relating to the transfer of property by the act of parties. The main purpose of the Act is to bring the rules, which regulated the transmission of property between living persons into harmony with the rules affecting its devolution and thus to furnish as it were a complement to the work accomplished in framing the law of testamentary and intestate succession. Its second purpose was to complete the Code of the law of contract in so far as it related to immovable property. It is not exhaustive and leaves the scope for applying the rules/principles of justice, equity and good conscience in case a particular case is not covered by any one of the provisions of the Act. Some of the principles of the Act are based on the principles of equity.

Historical Background-

 Before passing of the Transfer of Property Act, the Indian Courts, to settle the disputes, used to apply/follow the English law in the presidency towns of Madras, Bombay and Calcutta and applied the principles of justice, equity and good conscience. Consequent to the dual system of law, there was no uniformity in application of the law resulting in uncertainty. To overshadow the situation, it was felt necessary to codify the law on Transfer of Property. For this purpose, a commission was appointed to prepare a Code of substantive law of transfer of property in India. The Commission prepared the draft of the T.P. Act in 1870 and submitted the same to the Duke of Argy, the then Secretary of State for the approval. The Bill with necessary modifications was presented in the Council in 1877. A select committee was appointed to examine the draft Bill, but it failed to give the draft, a concrete shape. Then, it was referred to the Second Law Commission. After many discussions and modifications, the Bill was revised and republished in 1878. The Bill so prepared was approved by the legislature and received the assent of the Governor General on 17 November 1882.

Territorial Extent-

 The Act of 1882 came into force on the 1st day of July, 1882, and it extended to the whole of British India except the territories administered by the Governor of Bombay in Council, the Lieutenant/Governor of the Punjab and the Chief Commissioner of Burma (now Myanmar). Subsequently, the Act was extended to the whole of the territories (other than the Scheduled districts) under the Administration of the Government of Bombay from 1st January 1893. Similarly, it was extended to the whole of Burma (now Myanmar) from 22nd December 1924.

The Extra Provincial Jurisdiction Act, 1947 empowered the Provincial Governments to apply the laws to certain territories belonging to Indian States which were merged in the Provincial Governments. Those areas are now merged in the territory of India and by virtue of the Merged States Laws Act, 1950 and the Part B States Laws Act, 1951; the Transfer of Property Act has been extended to the States which have now been merged in the territory of India.

Punjab-

In Punjab, the Transfer of Property Act is (not) enforced but its provisions as to matters of principles are followed as rules of equity, justice and good conscience. This is to say the Courts in Punjab may follow those provisions of the Act which appear to be the statutory recognition of the principles of equity, justice and good conscience, but in so doing, the Courts would not rely upon the technicalities involved in any provision of the Act. From 6th May 1935, however, Ss.54, 107 and 123 have been extended to all the municipalities in Punjab including areas in Haryana, and Chandigarh and the areas declared to be notified areas under Section 241 of the Punjab Municipal Act, 1911.

Delhi-

In the Union Territories of Delhi, all the provisions of the Act except Section 129 have been made applicable with effect from 1st December 1962.

Bombay-

 The Act has been extended to the States merged in the State of Bombay by Act IV of 1950.

Madras-

 The Act has been repealed or modified to the extent necessary to give effect to the provisions of Madras. Act III of 1922 in the city of Madras.

Kerala-The Act has been made applicable to Kerala by the Travancore-Cochin Act XI of 1955. Provisions of the Transfer of Property Act were made applicable in respect of agricultural lands in Travancore area of Kerala State with effect from 1st July 1955. Before that date, the provisions of the Act were applied as principles of justice, equity and good conscience.

In other parts of India the Act extended as follows-

(i) The State of Tripura and Vindhya Pradesh by Act XXX of 1950.

(ii) Manipur by Act XXX of 1950.

(iii) Madhya Pradesh by M.P. Act XII of 1950.

(iv) Shillong by Assam Act of 1947.

(v) The whole of the then Saurashtra and Hyderabad areas by Bombay Act 57 of 1959.

(vi) The whole of Rajasthan by Notification of the State Government in 1952.

(vii) Partially extended to Berar by Act 48 of 1941.

Scope of the Act-

The scope of the T.P.Act is limited, as it does not apply to all transfers, which take place in India. The Act is subject to certain territorial and other limitations as stated below:

 (1) The Transfer of Property Act applies to transfer by act of parties. It does not regulate a transfer by operation of law, i.e. a transfer which is necessitated by the order of a court of law, for example insolvency, court sale or auction, forfeiture, etc. Its operation is, therefore, limited to transfers by act of parties only except in a few cases saved by Section 2 of the Act.

(2) The Act deals with a transfer of property inter-vivos, i. e. a transfer between the living persons. Thus, a transmission of property which takes place under a will or through succession is not covered by this enactment. (Kishori vs. Krishna Kamini, 37 Cal. 377).

(3) Although the Transfer of Property Act, 1882, contains provisions also for the transfers of movable properties (e.g. Section 5 to Section 37) a major portion of the enactment is applicable to the transfers of immovable properties only.

(4) Section 2 of this Act saves the rules of Mohammedan Law in so far as they are inconsistent with any of the provisions contained in Chapter-II. The result is, therefore, that Chapter-II of the Transfer of Property Act does not affect the transfer by Mohammedans even if it is against any of the provisions of Chapter-II. Again, Section 129 of the Act expressly says that nothing contained in Chapter-VII of the enactment (relating to gifts) shall be deemed to affect any rule of Mohammedan Law.

(5) Territorial limitations.

-Thus, it is seen that the Act is not exhaustive. Although the Act covers a large area of the law of transfer of immovable property, it does not profess to be a complete Code. It was intended to define and amend the existing law, and not to introduce any new principles. (Tajo Bibi vs. Bhagwan Prasad (1918) ILR 16 All. 295). When, therefore, the provisions of the Act are not applicable to a case, the Courts are entitled to apply rules of English Law, not inconsistent with the Act on the basis of the rules of justice, equity and good conscience.

-The Transfer of Property Act, 1882 has been amended, repealed in part (partly) from time to time namely. The Amendment of 1929 or The Transfer of Property (Amendment) Act 1929 (Act No. XX of 1929) which came into force on 1st April 1930. The Amendment Act of 1929 amended more than 50 sections and introduced some new sections.

Changes brought about by the Act of 1929-

The Transfer of Property (Amendment) Act, 1929, which came into force from 1st April 1930, introduced drastic changes/extensive amendments in the Act. Some of the changes are detailed below-

(1) Registration of a compulsorily registrable document operates as constructive notice. The effect of this provision is to supersede the Privy Council decision in Tilak Dhari Lal's case (48 Cal 1 (PC).

(2) Transfer in favour of a class is not to be wholly void though some members of the class are unable to take. By this rule in Leak vs. Robinson (35 ER 979), it has been jettisoned and the decision of the Privy Council in Sundarajan vs. Natarajan (48 Mad 906 (PC) superseded.

(3) The doctrine of part performance has been statutorily recognized and embodied in Section 53-A. The result of this is to render obsolete such rulings of the Privy Council as Arif vs. Jadunath (58 Cal 1235 (PC) and Pir Bux vs. Mohammed Tahir (58 Bom 650 (PC).

(4) A mortgage is usufructuary if the mortgagor binds himself to deliver possession though possession is not actually delivered. This provision statutorily overrules the view to the contrary taken by a Full Bench of the Madras High Court in Subbamma vs. Narayya (41 Mad 259 (FB).

(5) The mortgagee has to bring a single suit in consolidation of all the mortgages held by him in respect of which the mortgage money has become due and in respect of which he has the right to obtain the same kind of decree. This provision supersedes such decisions as Subramania vs. Siva Subramania (38 Mad 927 (FB) and Sunder Singh vs. Valu (20 All 322).

(6) The remedy of foreclosure which, according to the decision of the Privy Council in Vasudeva Mudaliar vs. Srinivasa (30 Mad 426 (PC), was available to the English mortgagee, has been taken away from him. This remedy is restricted to a mortgagee by conditional sale and a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclosure.

(7) The doctrine of subrogation has been crystallized in Section 92. The important change introduced by the amendment is that a conventional subrogation can be recognized only if it is evidenced by a registered instrument.