WHAT CAN BE TRANSFERRED UNDER THE TPA,1882.
The TOPA act came into existence from July 1st, 1882. The transfer of property act,1882 deals with transfer of property inter Vivos, i.e between the living persons and the law defines it as the transfer of property from one living person to the other(s), which also includes any company, body of individuals or organization.
The act basically deals with immovable property and defines it under section 3 and section 3(26) which shall include lands and benefits arising out of such land and which are permanent.
Further section 6 of the Act deals with untransferable property which lays down certain conditions in which the property cannot be transferred.
WHO CAN TRANSFER UNDER THE TRANSFER OF PROPERTY ACT?
Section 7 of the act deals with the competency and eligibility of persons who can transfer Any person who is competent to contract and is entitled to transfer property is regarded is competent how to transfer any such images of the property either partially or wholly.
Some sections of the Indian contract act also to be followed and added in this group.
Section 13 of the Indian contract act mention read the person who is transferring the property must be alive while the transfer is made. And section 11 of the same mention is the provisions of fulfilling the competency.
WHAT ALL CAN BE TRANSFERRED UNDER TPA?
Section 6 of the TOPA ,1882 deals and mentions what can be transferred and under what conditions. It lays down the provisions under which the transfer can be made. It can include all the property except as otherwise mentioned or provided under this act.
There are certain exceptions mentioned in sub section 6 which the transfer will be void, if madeSub section 6(a)- Spes Succession It means the expectation to have succession of the deceased’s property by the heir.
This type of transfer is considered ab initio.
Sub section (b) – Right to Re-entry.
Sub section(c) – Easement.
Easement cannot be transferred except from the heritage to which the right is attached and would be considered void, if made.
Sub section(d) -Restricted Interest. It further includes-
- Right of pre-emption
- Religious office
- Service tenure.
Sub section(dd)- right to future maintenance cannot be transferred.
The transfer of immovable property is based on the maxim of “alienation rei prefertur juri accrescendi” which means the law favours alienation to accumulation. - The act defines the aspect of property- Tangible which includes materialistic things like house on land and non-monetary assets as well.
The five basic kinds of TOPA act deals with are
1)Sale- Section 54 defines sale as transfer of ownership in exchange of a price paid or promise made.
2) Mortgage- Section 58(a) considers mortgage as transfer of interest in any specific immovable property.
3) Exchange- Section 118 says that money can be used in exchange of monetary dealings and not any other thing.
4) Lease- Section 105, Chapter V defines lease as a transfer of right of any immovable property.
5) Gifts- Section 122
6)Actionable claims –Section 3, define the term actionable claim as a team to unsecured debt or to any beneficial interest in movable property not in possession of the claimant.
WHAT ARE THE VALID ESSENTIALS OF TRANSFERING?
For a transfer to be valid these essentials must be fulfilled1.TRANSFER MUST BE INTER VIVOS- In order for a transfer any property to be valid the foremost
condition is its parties being alive at the time of transfer. And if the transfer is made to any unborn child, there must be clear intention.
2.IT MUST HAVE COMPETENCY-Section 7 of the transfer of property act must be kept in mind while dealing with the person or the transfer of competent. The basics include-
-he/she should be of sound mind
-he/she should have attained the age of majority
3.THE TRANFEROR MUST BE ENTITLED TO TRANFER THE PROPERTY- the translator must have a right on the property that is being transferred and section 7 of the TPA states that the transferor must have a title to the concerned property.
4.THE NATURE OF THE PROPERTY MUST BE TRANSFERABLE- Transfer of any non-transferable property is considered void. The property must be such that it should fulfil the conditions of section 6 of the Act and is of the nature that it doesn’t prohibit any thing contained in the law.
5.TRANSFEREEE MUST ALSO BE COMPETENT- The transferee need not fulfil the condition of age as it can be made to an unborn child the only condition the transferee must fulfil is the existence of it.
This is an overall sum and interpretation of the things which can and cannot be transferred under the Transfer of Property Act,1882.
