All NotesCivil LawTransfer of Property Act (TPA)

Transfer of Property Act (TPA)

Transfer of Property, Sections 5 to 9: The Opening Scheme of Chapter II

The first five sections of Chapter II settle everything the rest of the Act takes for granted. They say what a transfer is, what may be transferred, who may transfer, what passes when a transfer is made, and in what form it must be made. Every later provision — the restraints in sections 10 to 18, the equitable doctrines in sections 41 to 53A, and the six transaction chapters — assumes that these five questions have already been answered. Working through them in order is the most economical way into the subject.

Figure 1: The five questions in the order the Act asks them

1. The Five Sections at a Glance

Section

Question it answers

Substance

5

What is a transfer?

An act by which a living person conveys property, in present or in future, to one or more other living persons, to himself, or to himself and others. 'Living person' includes a company, association or body of individuals, incorporated or not

6

What may be transferred?

Property of any kind may be transferred, except as otherwise provided by this Act or any other law — subject to the nine exceptions in clauses (a) to (i)

7

Who may transfer?

Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, and to the extent and in the manner allowed and prescribed by law

8

What passes by a transfer?

Unless a different intention is expressed or necessarily implied, the transfer passes forthwith all the interest the transferor is then capable of passing, together with the legal incidents of the property

9

In what form?

A transfer may be made without writing in every case in which writing is not expressly required by law

2. Section 5 — The Definition

Section 5 fixes three requirements: an act of conveyance, a living transferor, and a living transferee, who may be the transferor himself in another capacity. The words 'in present or in future' qualify the verb conveys, not the noun 'property' — the point settled in Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376. The definition of 'living person' brings in companies, associations and unincorporated bodies, while preserving any other law regulating transfers to or by them.

3. Section 6 — The Subject Matter

The rule is one of free transferability: property of any kind may be transferred. The exceptions are nine, and they are exhaustive in the sense that anything not caught by them, or by some other statute, may be conveyed. Clauses (a) and (b) — spes successionis and the mere right of re-entry — carry most of the case law; clause (h) quietly imports the Contract Act by forbidding a transfer for an unlawful object or consideration within section 23, or to a person legally disqualified to be a transferee.

4. Section 7 — Competence to Transfer

Section 7, TPA

'Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.'

The section has two limbs and a tail.

  1. Competent to contract. The test is imported from section 11 of the Indian Contract Act, 1872: majority, soundness of mind, and not being disqualified from contracting by any law. A minor cannot transfer, though he may in general take as a transferee.
  2. Entitled, or authorised. The transferor must either be entitled to the property himself, or authorised to dispose of property that is not his own — an agent under a power of attorney, a guardian acting with permission, a trustee, an executor, or a mortgagee exercising a power of sale.
  3. In the manner allowed and prescribed by law. Competence is not enough; the transfer must also take the form the law requires, which sends the reader back to sections 54, 59, 107 and 123 and to the Registration Act.

5. Section 8 — What Passes With the Transfer

Section 8 supplies the default rule of construction. Unless a different intention is expressed or necessarily implied, a transfer passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in its legal incidents. The section then itemises those incidents.

Subject of the transfer

What passes with it

Land

The easements annexed to it, the rents and profits accruing after the transfer, and all things attached to the earth

A house

The easements annexed to it, the rent accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use with it

Machinery attached to the earth

The moveable parts of the machinery

A debt or other actionable claim

The securities for it, but not arrears of interest accrued before the transfer

Money or other property yielding income

The interest or income accruing after the transfer takes effect

Two limits are worth fixing. First, a transferor can pass only what he is capable of passing — no one gives what he does not have, subject to the estoppel in section 43. Second, the whole section yields to a contrary intention, so a well-drafted deed may reserve or except any of these incidents.

6. Section 9 — Oral Transfer

Section 9 states the residual rule: writing is the exception, not the rule. A transfer may be made orally in every case in which writing is not expressly required by law. The provisions that do require writing are few and specific, which makes the list worth memorising.

Transaction

Writing required?

Sale of tangible immoveable property of ₹100 or more, or of a reversion or intangible thing

Yes — registered instrument (s. 54)

Sale of tangible immoveable property under ₹100

No — delivery of possession suffices

Simple mortgage, and other mortgages securing ₹100 or more

Yes — registered and attested instrument (s. 59)

Mortgage by deposit of title deeds

No — delivery of the documents of title is the transaction

Lease from year to year, exceeding one year, or reserving a yearly rent

Yes — registered instrument (s. 107)

Other leases

No — oral agreement with delivery of possession suffices

Gift of immoveable property

Yes — registered and attested instrument (s. 123)

Gift of moveable property

No — delivery suffices

Exchange of immoveable property

Follows the rules for sale (s. 118)

Transfer of an actionable claim

Yes — a signed instrument in writing (s. 130)

7. How the Five Sections Work Together

Take any transaction and run it through the sequence. Is it a transfer within section 5 — a living transferor, a living transferee, something actually conveyed? Is the subject matter transferable under section 6? Was the transferor competent under section 7? What, then, passed by the transfer under section 8? And was the form required by section 9, read with the transaction chapters and the Registration Act, complied with? A failure at the first two questions makes the transaction a nullity; a failure at the third makes it void or voidable according to the defect; a failure at the fifth leaves the parties to sections 53A and 49 of the Registration Act.

Retention aid

What, which, who, how much, what form. Five sections, five questions, and they are numbered in the order you should ask them: 5 defines, 6 filters the property, 7 filters the person, 8 measures what moved, and 9 sends you to the formalities.

8. Related Topics and Provisions

  • Transfer of Property Defined, Section 5 — the definition dissected phrase by phrase
  • What May Be Transferred, Section 6 — the general rule and its nine exceptions
  • Spes Successionis, Section 6(a) — the first and most litigated exception
  • Mere Right of Re-entry, Section 6(b) — the second exception
  • Section 11, Indian Contract Act, 1872 — the competence that section 7 imports
  • Sections 54, 59, 107, 123 and 130, TPA — the provisions that displace the oral-transfer rule in section 9