Transfer of Property Act (TPA)
Transfer Inter Vivos and Transfer by Will: Two Ways of Disposing of Property, and the Line Between Them
Section 5 confines the Act to a transfer by a living person to one or more other living persons. A will is outside it altogether, because it operates on death. The practical importance of the distinction is that a great many documents sit on the line: a deed that gives property but reserves enjoyment for life, or a paper that recites that it shall take effect after the maker's death. What decides the character of such a document is not what it is called but whether it transfers an interest in praesenti or merely declares what is to happen when the maker dies.
1. The Two Definitions
The provisions Section 5, TPA — '‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act.' Section 2(h), Indian Succession Act, 1925 — a 'will' means the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. |
2. The Comparison
Point | Transfer inter vivos | Transfer by will |
|---|---|---|
When it operates | At once, on the transfer taking effect | On the death of the testator |
Governing law | The Transfer of Property Act | The Indian Succession Act, 1925, and the personal law where it applies |
Is it revocable? | No, once complete — a gift may be revoked only in the narrow cases section 126 allows | Freely revocable at any time during the testator's life; a will is ambulatory until death |
Acceptance | Required in a gift — during the donor's lifetime, and while he is capable of giving | Not required in the testator's lifetime; the legatee's assent operates after death |
Formalities | For immoveable property, a registered instrument attested by two witnesses — section 123 | Signed by the testator and attested by two witnesses; registration is optional |
The subject matter | Certain existing property — a transfer of future property is void, and section 124 says so for gifts | The property the testator owns at his death, including property acquired after the will was made |
Transfer to an unborn person | Only through the machinery of section 13, with a prior life interest | The corresponding provisions are sections 113 to 120 of the Succession Act |
Perpetuity | Section 14 | Section 114 of the Succession Act |
Consideration | A price, property, rent or the mortgage money — or none, in a gift | Never; a legacy is a bounty |
Interest before it operates | The transferee takes at once, subject to the terms | A legatee has no interest in the testator's lifetime, only a hope |
3. The Documents That Sit on the Line
The document | How it is classified |
|---|---|
A deed of gift reserving a life interest to the donor | A transfer inter vivos. The interest passes at once, subject to the reservation; the gift is complete on registration and acceptance |
A deed reserving a right of residence to the donor | The same — a present transfer of the property, burdened by the reservation |
A document by which the maker says the property shall go to X after his death, and which he may revoke | A will, whatever it is called |
A document that transfers property now, but postpones possession until the transferor's death | A transfer inter vivos. Postponement of enjoyment is not postponement of the transfer, as the Explanation to section 19 makes clear |
A settlement creating successive interests, operative at once | A transfer inter vivos, governed by sections 13, 14 and 19 to 24 |
A document registered and described as a settlement, but in substance revocable and operative only on death | A will; the nomenclature does not govern |
The test Does the document transfer an interest in praesenti? If an interest passes now, though enjoyment is postponed, it is a transfer inter vivos. Or is it a declaration of intention to take effect on death, revocable until then? If so, it is a will. The name the parties give the document is not decisive, nor is its registration, nor the form in which it is drawn. The court reads the instrument as a whole to see what it does. |
4. Gift and Will Specifically
Point | Gift — sections 122 to 129 | Will |
|---|---|---|
Operation | Immediate | On death |
Revocation | Irrevocable once complete, save under section 126 | Revocable at any time before death |
Acceptance | Essential, in the donor's lifetime; if the donee dies before acceptance the gift is void | Not required in the testator's lifetime; a legatee who dies before the testator takes nothing, subject to the Succession Act |
Registration | Compulsory for immoveable property | Optional |
Property | Must be existing — a gift of future property is void | May include property acquired after the will was made |
Number of instruments | A later gift cannot undo an earlier completed one | A later will revokes an earlier one to the extent of the inconsistency |
5. Why the Distinction Matters
- It decides which statute applies, and therefore which formalities, which rules about unborn persons and perpetuities, and which court's jurisdiction.
- It decides whether the disposition can be undone. A donor who has completed a gift cannot change his mind; a testator can, until his last breath.
- It decides whether registration was necessary. A gift of immoveable property that was never registered passes nothing; a will that was never registered is perfectly good.
- It decides what the beneficiary has in the meantime. A donee has an interest he may transfer and which is heritable; a legatee has nothing until the testator dies.
- And it decides the position of creditors and later transferees. A completed gift takes the property out of the donor's estate at once, subject to sections 53 and 128; a legacy remains part of the estate until death.
6. Landmark Cases
📖 Mathai Samuel v. Eapen Eapen, (2012) 13 SCC 80 Held: The Court considered whether a document was a will or a settlement. The nomenclature given by the parties is not decisive, nor is the form in which the document is cast. What has to be seen is whether the document creates an interest in praesenti in favour of the beneficiary, or whether it is merely a declaration of the executant's intention to be carried into effect after his death. A disposition that takes effect immediately, though the enjoyment is postponed, is a settlement and not a will. Ratio: The character of the instrument depends on whether an interest passes in praesenti, and not on what the parties have called it. |
📖 Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445 Held: A gift of immoveable property is complete on a registered instrument attested by two witnesses, together with acceptance by the donee in the donor's lifetime. A donor may validly reserve to himself the right to enjoy the property, or to receive its income, during his life, and such a reservation does not postpone the transfer or turn the instrument into a testamentary disposition. Ratio: Reservation of a life interest does not make a gift testamentary; the interest passes at once, subject to the reservation. |
7. Related Topics and Provisions
- Section 5, TPA — transfer, and the requirement of living persons
- Gifts, Sections 122 to 129 — and gift compared with will
- Sections 13 and 14, TPA — and their counterparts in sections 113 and 114 of the Succession Act
- Vested Interest, Section 19 — and the Explanation on postponed enjoyment
- Transfer by Act of Parties and by Operation of Law — the other boundary of section 5
- The Transfer of Property Act and Other Statutes — the succession law in outline