Transfer of Property Act (TPA)

TPA and Indian Contract Act 1872

The Transfer of Property Act and the Indian Contract Act, 1872: Capacity, Consideration and Consent in Property Transfers

Almost every transfer begins as a contract and ends as a conveyance, and the two Acts divide the work between them. The Contract Act decides whether the parties were competent, whether their consent was free, and whether the object and consideration were lawful. The Transfer of Property Act then decides what the transfer does, how it must be made, and what the parties owe each other once it is made. Section 4 of the Act makes the connection explicit: the chapters and sections relating to contracts are to be taken as part of the Indian Contract Act.

1. Section 4: The Statutory Link

Section 4, TPA

The chapters and sections of the Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872.

And sections 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908.

So the Act is not a self-contained code. It sits between the general law of contract on one side and the law of registration on the other.

2. Capacity

Section 7, TPA, and section 11 of the Contract Act

Section 7 — every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer that property, either wholly or in part, and either absolutely or conditionally.

Section 11 of the Contract Act — a person is competent to contract who is of the age of majority, of sound mind, and not disqualified from contracting by any law to which he is subject.

Question

Answer

A transfer by a minor

Void. An agreement by a minor is void ab initio, and a minor is not competent to transfer

A transfer to a minor

Valid. The disability in section 7 attaches to the transferor; a minor may take as transferee, and a gift may be accepted on his behalf

A transfer by a person of unsound mind

Void, unless made during a lucid interval, when he is capable of understanding it and of forming a rational judgment as to its effect

A transfer by a person authorised to dispose of property not his own

Valid within the authority — a guardian, a manager, an attorney; and section 38 protects a purchaser who enquired with care

Ratification on attaining majority

Not possible for a void transfer; a fresh transfer must be made. But under section 127 a disqualified donee who retains onerous property after becoming competent becomes bound

3. Consideration

The transfer

The consideration required

Sale — section 54

A price in money, paid or promised or part-paid and part-promised

Exchange — section 118

Property on each side, neither thing or both things being money only

Mortgage — section 58

The mortgage money advanced, or the obligation secured

Lease — section 105

Rent or a premium, or both

Gift — section 122

None — and the absence of consideration is of the essence

  1. A gift is not an agreement without consideration. Section 25 of the Contract Act, which makes such an agreement void, has no application: a gift is a completed transfer, not an executory promise, and the Act provides its own requirements of form and acceptance.
  2. Inadequacy of consideration does not invalidate a transfer, though under the Contract Act it is a circumstance the court may take into account on the question of free consent, and under section 53 of this Act it is a badge of fraud.
  3. Unlawful consideration or object. Section 6(h) of the Act forbids a transfer for an unlawful object or consideration within the meaning of section 23 of the Contract Act — so what a contract may not achieve, a transfer may not achieve either.

4. Free Consent

Where consent is vitiated

The effect under the Act

A gift obtained by coercion, undue influence, fraud or misrepresentation

Section 126 — the gift may be revoked in any case in which, if it were a contract, it might be rescinded

A sale or mortgage obtained by the same means

The transaction is voidable on the general principles of the Contract Act, and may be set aside subject to the rights of third parties

An unconscionable bargain with a needy borrower

The doctrine of clogs on the equity of redemption, which exists for precisely this reason, and section 16 of the Contract Act on undue influence

A transfer to defeat creditors

Section 53 — voidable at the option of a creditor defeated or delayed

A transfer induced by a fraudulent or erroneous representation of authority

Section 43 — feeding the grant by estoppel

5. The Parallels Between the Two Acts

Idea

In the Contract Act

In the Transfer of Property Act

Contingency

Contingent contracts — sections 31 to 36

Contingent interests — sections 21 to 24, and conditional transfers — sections 25 to 34

Substitution of a party

Novation — section 62

Assignment of an actionable claim — sections 130 to 137, where the debtor's consent is not required

Subrogation of a surety

Section 140 — the surety is invested with all the rights of the creditor on payment

Section 92 — subrogation on redemption, and section 91(b), under which a surety may redeem

Indemnity and guarantee

Sections 124 to 147

The mortgagor's implied covenants — section 65; and the seller's covenant for title — section 55(2)

Unlawful agreements

Section 23 — unlawful consideration and object

Section 6(h) — no transfer for an unlawful object or consideration

Agency

Sections 182 onwards

Transfers by an agent or attorney; and notice through an agent — Explanation III to section 3

6. Where the Two Acts Meet in Practice

  1. An agreement to sell is a contract; a sale is a transfer. Section 54 says the agreement creates no interest in the property, so it is governed by the Contract Act until the conveyance is executed.
  2. A contract may be specifically enforced, and the Specific Relief Act supplies that remedy; the Act supplies the consequences once the conveyance is made.
  3. Part performance bridges the two. Section 53A gives the transferee in possession under a written contract a defence, without turning the contract into a transfer.
  4. And the incidents of a completed transfer are statutory. Once the transfer is made, sections 55, 65, 76 and 108 supply terms the parties never negotiated, in the absence of a contract to the contrary.

7. Landmark Cases

📖 Mohori Bibee v. Dharmodas Ghose, (1903) 30 IA 114 (PC)

Held: An agreement by a minor is void ab initio. A mortgage executed by a minor is therefore a nullity, and the mortgagee cannot recover the money advanced on the footing of the mortgage. Competence to contract under section 11 of the Contract Act is the foundation of competence to transfer under section 7 of the Transfer of Property Act.

Ratio: A transfer by a minor is void and cannot be ratified; capacity under the Contract Act governs capacity to transfer.

📖 Raghava Chariar v. Srinivasa Raghava Chariar, (1916) 40 Mad 308 (FB)

Held: A minor may be a transferee. Where a mortgage is executed in favour of a minor who has paid the whole of the consideration, the mortgage is enforceable by him, since the disability attaches to the transferor and not to a transferee who undertakes no obligation.

Ratio: The requirement of competence in section 7 is a requirement in the transferor, not in the transferee.

8. Related Topics and Provisions

  • Person Competent to Transfer, Section 7 — capacity in detail
  • Section 6(h), TPA — transfers for an unlawful object or consideration
  • Sale vs Agreement to Sell — the point at which contract becomes transfer
  • Doctrine of Part Performance, Section 53A — the bridge between the two Acts
  • Actionable Claims, Sections 130 to 137 — assignment, and its contrast with novation
  • The Transfer of Property Act and Other Statutes — the wider map