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.
- 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.
- 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.
- 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