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    What is the Transfer of Property Act, 1882: Importance, Eligibility, Duties & More

    tenasfer property act 1882
    (Source: housing)

    The Indian legal system has set the path for transferring property from one entity to another through the Transfer of Property Act. It came into force on 1 July 1882, defining different aspects of living beings and transactions.

    [Source]

    So, keep reading this article to know about the transaction it covers, its importance and its duties!

    What is Transfer of Property Act?

    Transfer of Property Act, 1882, also known as TP Act 1882, is legislation that is only applicable when a transaction is taking place between two living entities or inter vivos. According to the law, this can include an organisation, company, or association of individuals that may involve a present or future transfer of the same.

    [Source]

    In addition to this, provisions of this law apply to both the transfer of movable and immovable property. However, as per this act, "transfer" specifies actions like an exchange, gift, mortgage, actionable claim, sale, or lease.

    What is the Scope of Transfer of Property Act 1882?

    The scope of the act with which one can better understand the applicability of this law in a property transfer includes:

    • The provision of property transfer will be applicable if any transfer occurs between individuals or companies or any other living person. However, it should be as per the definition mentioned under the Indian Contract Act and the Companies Act in India.
    • The applicability of this TP Act 1882 primarily applies to a transfer of immovable property; however, some sections and clauses of this Act deal with a transfer of movable property as well.

    [Source]

    What Terminologies to Know About Under the Transfer of Property Act?

    In order to understand the scope and importance of the Transfer of Property Act, individuals must understand a few terminologies that hold significant values in the applicability of this law.

    1. Movable Property

    In simple terms, movable property refers to all those properties that can be moved from one place to another. Moreover, this movement must not detriment the quality, capacity, and quantity of movable property.

    Some of the common examples of movable property are personal belongings, cars, books, grass/crops, etc. The movable properties’ registration is optional under the Indian Registration Act of 1908.

    [Source]

    2. Immovable Property

    Immovable property refers to those properties that are attached to the earth or to something that is attached to the earth. These properties cannot be moved unless it is destroyed or altered. It is a mandate to register any immovable property under the Indian Registration Act 1908 if a property’s value is more than ₹ 100. 

    Some significant examples of these property types are real estate, houses, buildings, anything that is attached to the land, property rights, etc.  

    [Source]

    What Are the Features of the Transfer of Property Act 1882?

    Some salient features of the TP Act 1882 that one must remember for better implementation of this law are:

    • This act applies to the property transfers that take place by the act of parties.
    • It maintains uniformity and clarity in matters that are concerned with immovable property transfers.
    • It is a subject of a concurrent list which is provided by the Constitution of India. This specifies both the Central and State Governments have exercisable powers over the matter of this act.
    • The concept of lex loci applies to this law which concerns living people in the act of transfer. In simple terms, it means ‘the law of the place.
    • This act follows several principles which are based on elements like justice, equity, and good conscience.
    • It does not apply to any special laws or any other general laws related to a property.

    Who Is Eligible to Transfer Property?

    According to Section 7, Transfer of Property Act 1882, various provisions have been laid down with respect to the eligibility of transferring properties. This states that:

    • Individuals who are competent to enter into a contract with another party.
    • They should be willing to transfer a property.
    • Any individual who is 18 years old or above.
    • They must be sound enough to make this contract.
    • This transfer must take place among living entities. Here the living entities also include a company, an association, a body of individuals, or co-operatives.

    [Source]

    What Are the Key Elements of the Transfer of Property Act?

    The essential elements of the TP Act are:

    1. Section 5: Transfer of a property must take place between two or more living entities

    As per Section 5, a property transfer must inter vivos, which means it must be between living people. Property transfer cannot be said to be viable between two or more non-living entities. Here a living person constitutes individuals, companies, associations, or other bodies, whether under incorporation or not.

    2. Section 6: Property must be transferable

    Under Section 6, transfer of property is said to be successful when property used for this activity is transferable. As per clauses (a) to (i) of this section, properties with the following characteristics, like its right to sue, right to future maintenance, public offices, prison, political pension, etc., cannot be transferred.

    Let's discuss the grounds where a property cannot be transferred:

    • A property cannot be transferred if it proves to be detrimental to the nature of interest, as mentioned in Section 6(h). 
    • Any property that is considered an unlawful object as per Section 23 of the Indian Contract Act, 1872, is mostly considered unlawful if:
      • It is forbidden by law.
      • The nature of a property hinders the interest in the provision.
      • It is fraudulent.
      • It causes any injury or threat to any person or property.
      • The court specified an object to be immoral or detrimental to a public policy.
    • Property cannot be transferred by a transferee who is said to be legally disqualified by the court. The Transfer of Property Act specifies in Section 136 any legal practitioner, a Judge, or an officer who is connected or working with the Court of Justice cannot purchase property or an actionable claim that he dealt with. This prohibition only applies to an actionable claim and not any other type of property.

    3. Section 7: Persons who are eligible to transfer a property

    As per the law, a person who is eligible to sign and enter a contract is competent enough to transfer a property. 

    [Source 1]

    [Source 2]

    What Are the Seller's Responsibilities in Relation to the Transfer of Property?

    The seller’s responsibilities and duties concerning a transfer of immovable property fall into two stages:

    • Duties before a transfer of a property.
    • Duties after a transfer of a property.

    Let us understand these different sets of seller’s duties, which are mentioned in this context:

    1. Seller’s Duties Before Transfer of a Property

    TP Act specifies a comprehensive list of duties or liabilities that is vested with a seller before an immovable property’s sale:

    • Disclosure of Material Defects in the Property: Section 55 of this act specifies that sellers have to disclose all material defects about the property that is on sale. It is a seller’s duty to create awareness about existing material defects before a buyer purchases a property. The defect will be such that it is not easily discoverable; however, it hinders the presentation of facilities on a property. In addition to this, the TP Act specifies that failure to highlight material defects to a buyer at the time of purchasing may attract legal litigation or penalty.
    • Presenting Documents and Information for Inspection: When a buyer requests, it is a duty of a seller to present all documents and information of a property for inspection or examination purposes. When a seller is in possession of a property, he/she must clear all questions pertaining to the same property.
    • Execution of Proper Conveyance: It is one of the seller’s duties to execute a proper conveyance of this title or property upon completion of payment or approval of a property's tender. In addition, a seller must ensure that the conveyance is properly executed before processing a sale operation.
    • Answering Questions in Relation to a Property: It is a seller's responsibility to attend to all questions of a buyer concerning the property. By solving their queries, a seller ensures that a property or title is free from any dispute and defects and will not bring any burden to a buyer. In addition to this, if a seller is unable to satisfy a buyer, he or she has the right to rescind this contract immediately.
    • Taking Care of the Property Responsibly: The process of taking care of a property and title deed begins before the implementation of the sale deed. According to Section 55, any damage pertaining to a property or title within a particular time period will be at a buyer's discretion to lower the price of that very property. In addition to this, if a buyer wants, he or she can sue for damages or even demand compensation for damages from a seller.
    • Paying Timely Outgoings: If there is any presence of property encumbrances, a seller has a responsibility to sort them out before the execution of a sale deed. As per Section 69 of the Indian Contract Act, a buyer can enforce a duty of paying any accrued charges or rent of a property before the date of sale. In addition to this, it is a seller’s duty to process any public charges and seek permission from a statutory authority before putting a property on sale.

    2. Seller’s Duties After the Transfer of Property

    Here are the following duties or responsibilities that a seller must carry out after the transfer of property:

    • Impart Possession to the Buyer: The execution of a sale deed leads to handing over possession of a property to a buyer. Post this sale completion, a seller cannot refuse to hand over his/her property even if a buyer has not furnished promised consideration. The delivery of possession from a seller’s end may start with a seller vacating a property irrespective of the fact where  a tenant occupies the plot. Before the possession, a seller must ensure to clear any trespasser who is illegally entering a property and ensure that it is safe and appropriate for a buyer to take possession.
    • Ensuring Good Title: One of the essential duties of a seller is to deliver the right title to a buyer after a sale of a property. This property must be free from any defects or problems and beyond any reasonable doubt. Moreover, a seller must establish the authenticity of a property in front of a court. In addition to this, a seller must own a saleable interest over the title, or else he or she will be liable to pay higher charges for damages to a buyer. Simultaneously, this seller cannot charge a higher title which will lead to a penalty for misrepresentation of the title.
    • Deliver Title Dead Upon Completion of the Payment: Upon completion of the consideration paid by a buyer, a seller has to hand over all documents of the property. It is in this phase that an actual transfer of property deed takes place. In this stage, it is the buyer's discretion to check his/her mortgage and tax papers for this property and inquire about any matter. If a portion of a property is sole, a seller having possession of another portion will hold the title deeds along with a buyer. Moreover, if a property is sole among multiple buyers, then one who holds the major value will also hold a title deed.

    [Source]

    What Are the Seller’s Rights in Relation to the Transfer of Property?

    Some significant seller's rights in relation to property transfer are as follows:

    • One of the pivotal rights that a seller can enjoy is to get rent and profits from a property before transfer.
    • It is the seller’s right to acquire the payment or sale value of consideration as contracted with a buyer.

    What Are the Buyer's Responsibilities in Relation to Transfer of Property?

    As per the governing Act, buyers’ duties divide into two parts which are:

    • Duties before a transfer of a property
    • Duties after a transfer of property

    1. Buyer’s Duties Before the Transfer of Property

    The importance of Transfer of Property Act involves an equal division of rights and duties between a seller and a buyer. Here is a list of duties that a buyer must perform before a transfer:

    • Disclosing of Material Information: A buyer has to inform a seller about his/her value of interests in association with the property if he or she is unaware of the fact. In other words, if the market value of a property is higher than what the seller is quoting, then the duty of informing him/her of the correct value of interest lies with the buyer.
    • Pay the Price of Consideration in Full: Finally, yet most importantly, a buyer has to complete the payment of consideration as promised to a seller. He or she must exercise the payment at an agreed time and place. Also, he/she must use the same mode of payment as fixed under their agreement. The completion of this payment procedure will result in the final transfer of property ownership.

    2. Buyer’s Duties After the Transfer of Property

    A few duties a buyer must perform after the transfer of property is:

    • Bearing Any Loss: It becomes a sole duty of a buyer to bear any loss pertaining to a property that he or she has bought. This duty is after this transfer of ownership and includes any material destruction, injury, or deflation in the property's value.
    • Payment of Outgoings: Once there is a transfer of ownership, a buyer should now pay taxes or any other public charges with respect to a property. These charges may also include maintenance expenses or any other fitting expenses that a seller was liable to pay before this transfer.

    [Source]

    What Are the Buyer’s Rights in Relation to the Transfer of Property?

    The two essential buyer’s rights, as mentioned in the act, are:

    • He has a charge on the property for the amount that he has paid for purchasing it unless he refused to accept the delivery of the property. He will also be entitled for an interest on the amount.
    • A buyer will also enjoy his/her rights to the benefits of improvements.

    [Source]

    Which Are the Properties One Cannot Transfer?

    Section 6, Transfer of Property Act, 1882, specifies the following properties that are not transferable:

    • Properties that are subject to inheritance in future.
    • Properties that have the right to an easement are subject to prohibition from transferring.
    • As per the provisions of the Transfer of Property Act, a lessor will not be able to transfer his right to make a re-entry to leased property.
    • Even real estate developers who are under a JDA (Joint Development Agreement) with landowners will not be allowed to shift or transfer the project ownership if they wish to construct a project on the latter's land.
    • The Transfer of Property Act does not allow the transfer of easement rights. This right enables one to utilise someone else’s property or land in some way or the other.
    • One cannot transfer the right to future maintenance of a property as it is meant for only that individual to whom it is actually granted.

    [Source]

    The provision and various clauses under the Transfer of Property Act 1882 are essential to understand while carrying on such activities. A better comprehension of the clauses will lead to uninterrupted legal transfers. So, individuals, both sellers and buyers, must abide by the clauses to avoid any litigations.

    FAQs About Transfer of Property Act 1882

    What is earnest in the context of a transfer of property?

    Before the final transfer takes place between a seller and a buyer, the latter provides a deposit and is a nominal token of security money as per the agreement made with his/her seller. This amount is earnest, which is a part of their purchase consideration.

    Before the final transfer takes place between a seller and a buyer, the latter provides a deposit and is a nominal token of security money as per the agreement made with his/her seller. This amount is earnest, which is a part of their purchase consideration.

    What is a possession certificate?

    A possession certificate specifies the right of possession of a property that is transferable from the seller to the buyer. Upon the completion of the payment of a property transfer, a respective buyer receives this possession certificate.

    A possession certificate specifies the right of possession of a property that is transferable from the seller to the buyer. Upon the completion of the payment of a property transfer, a respective buyer receives this possession certificate.

    What is a ‘Sale of Approval’ under the ‘Transfer of Property Act’?

    According to the TP Act, the sale of approval defines a transfer of goods on an approval basis. A buyer chooses the goods and sends back the same for sale and takes ownership only for the portion he bought. [Source]

    According to the TP Act, the sale of approval defines a transfer of goods on an approval basis. A buyer chooses the goods and sends back the same for sale and takes ownership only for the portion he bought.

    [Source]

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    Last updated: 2023-09-22

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    Go Digit General Insurance Limited (formerly known as Oben General Insurance Ltd.) - Registered Office Address - 1 to 6 floors, Ananta One (AR One), Pride Hotel Lane, Narveer Tanaji Wadi, City Survey No.1579, Shivaji Nagar, Pune-411005, Maharashtra | Corporate Office Address - Atlantis, 95, 4th B Cross Road, Koramangala Industrial Layout, 5th Block, Bengaluru-560095, Karnataka | Trade logo of Go Digit General Insurance Ltd. displayed above belongs to Go Digit lnfoworks Services Private Limited and is provided and used by Go Digit General Insurance Ltd. under license.