COMMENTARY ON THE TRANSFER OF PROPERTY ACT BY MULLA, UJWALA BENDALE AND RASHEED SHAIK

Preface to the First Edition

Transfer of property is most intricated discipline of law which is akin to jurisprudence, since it deals with certain doctrines having their origin in the Common Law of England, some of them absolutely alien to Indian concepts. The provisions of Act of 1982 have no application in a case where a transfer of property takes place by operation of law. Ipso facto the Transfer of Property Act, 1882 applies only to transfer by act of parties. The principles of English Law which are not inconsistent with the instant Act may be invoked on occasions on the basis of justice, equity and good conscience. Where any case is not covered by the provisions of the Act, the Courts are permitted to administer the principles of equity. On the contrary if the case is within the provisions of the Act, the Act must be applied thereof. The basic principle that Courts are authorized to act according to justice, equity and good conscience where there is no specific provision of law governing the case connotes that the English Law is to be applied provided its application found suited to Indian circumstances.

So far so, the Act covers the transfer of property by act of parties but it does not cover transfer of property by operation of law. As a matter of fact, transfer of property by act of parties again may be inter vivos or testamentary. Such testamentary transfer relates to transfer by Will, however inter vivos transfer refers between two living persons, and this inter vivos transfer is dealt under Act of 1882. In the matter of transfer by living person both the transferor and the transferee are living at the time of transfer. Regarding transfer by operation of law, the transfer of property took place even though the transferor is not alive on the date of transfer. In this mode of transfer the property is transferred automatically by the process of law. For instance, devolution of property upon the legal heirs or legatees by inheritance or under wills is by operation of law. Apart from that transfers by orders of a Court or transmission of property in cases of insolvency sale or forfeiture in execution of decree of the Court, are all by operation of law. The prime coverage of the Act is relating to transfer of immovable properties. Notwithstanding, though Sections 5 to 37 of Chapter II contain provisions which are applicable to both kinds of property, whether movable or immovable, mainly the Act provides for the transfers of immovable property. Moreover, transfers of movable property are governed by the Sale of Goods Act, 1930. As a matter of fact, a transfer by operation of law is not validated or invalidated by anything contained in the Act. A transfer which takes place by operation of law, thus need not meet the requirements of the provisions of the Transfer of Property Act or Indian Registration Act, 1908.

Both the parties to transfer must be competent to enter into a contract. They must have the competency as required under Section 10 of the Indian Contract Act, 1872. They must be major and of sound mind and must not be disqualified by law in force. Apart from the above the person who intends to transfer must have the title to the property or the authority to transfer it. Such property must be in existence at the time of transfer, irrespective whether the transfer creates a right immediately or in future. The main principle of the Act is that the right to transfer property is incidental to and inseparable from its beneficial ownership. Any condition absolutely restraining the alienation is void according to the Act.