Transfer of property act india pdf

Is so explain it in details. Do you agree with the view that an interest can be created for the benefit of an unborn person. If so, subject to what conditions. To remember- 1. General rule of TPA.

Transfer to an unborn person. Transfer for the benefit of an unborn person. No Direct Transfer Trust creation 2. Prior Interest Illustration 3. But property can not be transfer to a person who is not in existence means who is not even his mother womb. Accordingly S. Transfer for the benefit of an unborn person S. No direct transfer: 2. Prior interest 3. Such transfer can be made by the machinery of trust. Reason behind if a transfer were made directly to an unborn person, there would be an abeyance of ownership form the date of transfer till the coming into existence of the unborn person which is void according to English Common Law.

In other words, the interest in favour of an unborn person must always be preceded by a prior interest in favour of a living person. Illustrations I. A transfer his house to X for life and thereafter to UB unborn who is an unborn son of A. The transfer of house in favour of UB is valid, here since UB is not in existence at the date of the transfer, A could not transfer the houser directly to him.

So, A had to make a direct transfer of life interest in favour of X who is a living person at the date of the transfer. After the death of X the interest of the house shall pass on to UB who is the ultimate beneficiary. It is not permissible to confer a life-interest on an unborn person.

But this aspect of Enlish Law was subject ot a restriction called the rule against double possibilities. Illustration I. A transfer his property to X for his life and thereafter to UB for life X is a living person at the date of the transfer. UB is not into existence at the date of transfer so the transfer of life interest of X is valid. But the transfer of life interest of UB is void because although the transfer in favour of UB is preceded by a life interest to X but UB himself has not been given an absolute interest.

What are the exceptions to this rule? Explain the difference between Indian and English Law on this point. Object of Law. Transfer in Perpetuity condition void restrain of alienation. By creating future remote interest incorporates the rule against perpetuity 4. Ingredients of Rule against perpetuity 5. Maximum remoteness of vesting 18 years or 21 when court appoint 6.

Scope and object of rule against perpetuity- 8. Exceptions to the rule Against Perpetuity Transfer for the benefit of public- Personal Agreement Object of Law- The object of law is no property should not be tied up or inalienable for an indefinite period or forever.

Frequent disposition of property is in the interest of the society and also necessary for its more beneficial enjoyment. The rule against perpetuity protects the object of Law that property should be in motion. Transfer in Perpetuity In any disposition, perpetuity may arise in two ways: 1. Section 14 — A disposition that tends to create future remote interest has been prohibited, which incorporates the rule against perpetuity.

Ingredients of Rule Against Perpetuity Section 14 1. There is a transfer of property 2. The transfer is for the ultimate benefit of an unborn person who is given absolute interest 3. The ultimate beneficiary must come into existence before the death of the last preceding living person 5. Vesting of interest in favour of ultimate beneficiary may be postponed only up to the life or lives of living persons pus minority of ultimate beneficiary, but not beyond that.

Where the ultimate beneficiary in the mothers whom when the last person dies preceding beneficiary the property vests immediately in him while he is still in the mothers whom. Therefore the exact period from which the minority runs is the date when the ultimate beneficiary conceived. The gestation period is in which the ultimate beneficiary remains in mothers womb after date of conceived and before he is born alive.

In English Law a contract for purchase of real property is regarded as creating an equitable interest, and if, in the absence of a time , it is possible that the option for repurchase might be exercised beyond the prescribed period fixed by the perpetuity rule, the covenant is regarded as altogether void. English law allow 21 years in gross after life or lives in being while Indian Law allow only the period of minority after a life or lives in being but in case court appoint the guardian the minority age postpone to 21 years.

Situation Under Hindu and Muslim Law Section 14 or this rule against perpetuity is made apply cable on Hindu after , but this provision is not applicable to Muslim Law but a gift to remote and unborn generations was held void although exception has been made in case of wakfs.

Under section 17 direction for the accumulation of income is allowed but not beyond a certain period. The direction of the accumulation of such income is void, reason it is beyond the permissible limit life or 18 years. A transfers property to B in with a direction for the accumulation of its benefits upto A dies in thus the transferor lives for 25 years which is more than 18 years.

The direction for accumulation is valid upto for 25 years because it is the longer period. Exception 1. Payment of Debts- the period of accumulation can be exceed in case of payment of bebts. For example — A makes a gift of his house to B with a direction that form the rents of the house B shall pay Rs per months towards the satisfaction of a debt of Rs on Lac incurred by A.

The direction of the accumulation of income is valid even it continues after the life of A or expiry of period of 18 years. Raising portions- Portion ordinarily means a part or share which points to the arising of something our of something less for the benefit of some children or class of children.

Quantum of right 2. It is to take effect upon happening of an event which must happen or bound to happen or certain nature of future event. For example — any future date, any person death, any age, or things are bound to happen. Following condition which appears not vested but actually it is vested the rights. Postponement of enjoyment of rights vesting happen immediately but the enjoyment of rights postpone 2.

Prior interests- Creation of prior interest. Like interested created for unborn person. Direction for accumulation. Conditional limitation. It is the English Law concept, which authenticated in India under S28 of TPA For example- A gifts his house to B with a condition B takes possession of house within 6 months if he fail to take possession A transfer the possession of house to H. In a transfer of property, the primary thing is the transfer of interest of title.

Possession of property is secondary. The postponement of property may be postponed till any future date or future event which is of MUST nature and is bound to happen. The vesting interest is not postponed. A transfers property to B for life and then to C the interest of C is vested interest.

Here C has a vested interest immediately with the transfer was made but his right of enjoyment is postponed till the life of B, because the death is the future event and must in nature. Where the property is transferred with such direction the interest of the transferee is nevertheless vested. In this case also the right of enjoyment has been postponed not the vesting. The property of the settler was to vest in the settlee only on death of settler. SC Held- The family settlement does not create a vested interest in favour of the settlee and settle cannot be absolute owner during the life of settlor.

A condition limitation does not prevent the vesting of the interest. Rather it is implied that the interest which had already been vested may be divested and my vest somewhere else. A transfer his house to B with a condition that if B doest not take possession of this house within 6 months form the date of the transfer, the house shall belong to C. The interest of B is a vested interest although it is vested only for these 6 moth and if he possess the house within 6 month the vesting would be permanent.

If the transferee dies, his interest vested in hi legal representatives whether or not he has obtained possession. And it is heritable in a sense when transferee dies having vested interest in a property his interest vests in his legal heirs, whether or not he has obtained possession. A gift his house to B with a condition that he will marry to C if he will not then the house is to go to C.

Here C is the Ulterior transfer and it takes effect in case the prior transfer viz form A to B fails. The foundation of Election is that a person taking the benefit of an instrument must also bear the burden. Election means choosing between two inconsistent or alternative rights. Under any instrument if two rights are conferred on a person in such a manner that one right is lieu of the other, he is bound to elect only one of them.

A offer Rs to B in lieu of transfer his house, B can elect only one, either he can retain the money and transfer his house or deny the money, he can not enjoy the both.

This doctrine is based on equitable principle under which a person may not be allowed to approve that of an instrument which is beneficial to him and disapprove its that part which goes against him. Means no one can approbate and reprobate at the same time. In other words where a person takes some benefit under a deed or instrument he must also bear it s burden.

A may profess to transfer a property B, which is owned by C, and also confers a benefit Rs to C. Knowledge of the fact that transferor has no authority to transfer the property is immaterial for applicability of the rule of election. The word Ownership is a wide connotation, it include a person having vested interest, or contingent interest and also a person who has ever reversionary or remote interest in the property.

Part of the same transition This Doctrine only applicable when transfer and benefit a part form the same transition. Means the benefit and transition are interdependent and inseparable they form part of the same transition. Mode of Election it can be express or implied owner can express his intention in clear and specific word, once the election has done it is final and conclusive.

Election is implied when the owner of property having aware of his duty to elect and accept the benefits. When owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transation. When the owner of the property exhausts or consume the benefits.

Requisition to Elect This is the special procedure for expediting election, after the expiry of one year, if the owner of property does not elect, neither confirm his dissents the transation, it deem to elect in favour of transferee. Suspension of Election- The election may suspend till the time there are any legal disability. Election against transfer- if there is dissent form the professed transferred, the transferor forfeits his benefit confer to owner. According to Indian law the residue Rs would go to A transferor , while in English law goes to C, as a compensation.

What is the effect of the transfer made by him? Explain the law realting to transfer by ostensible owner. Explain the circumstances in which a transferee from an ostensible owner should prove to sustain his claim against the real owner. Does the transfer of property Act make any exception to the general rule that a person cannot confer a better title to the property than he has in it? Is so, how do you justify the exception? Ostensible Owner- a person is not the real owner of the property, while he appeared to be the real one it may be found that although his name appears in the record and he also possesses the property but he never intended to own it.

Thus a person who hold the property act as a Agent, guardian of the property, it does not mean he is the owner of the property. Why the property purchased in the name of another person. It was held that Silence of A on mortgage created by B made B as ostensible owner and hence A cannot deny the mortgage. Ingredients of S41 Consent of true Owner.

It is one of the important condition, that apparent ownership must have been created or permitted by the real owner of the property, either by express or implied consent. Reasonable Care it is also important that the transferee before taking effect of any transition he made reasonable care which a ordinary man do and enquiries to ascertain the transferor had the power to transfer.

Good Faith The last condition is the transfer must be in a good faith there should not be any malafied intentions. Protection of Bona fide purchaser when disputed land. What is the effect of this doctrine? Explain its exception, if any. Can the doctrine of lis pendens afact the property sold in an auction ordered by the court. Means during pendency of litigation nothing new should be introduced. This doctrine prohibit any creation of new title or transfer of property during pendency of litigation, which means this doctrine is prohibited in nature.

Basis of Doctrine- The basis of doctrine is necessary rather than actual or constructive notice, because constructive notice is the presumption of law that under such circumstances the transferee knowledge of such les pendency. It is the duty of the transferee he must enquire about the les pendency of the property.

Having being the actual or constructive notice the transferee r made any transation related to les pendent property it treated the abuse of court of law. And it is in the interest of public policy, there for it is necessity Essentials of les Pendens. For ex- A suit is pending before the court of law between a landlord and tenant regarding rent, and if the during the proceeding the landlord transfer the property it would not violate the Doctrine of Les Pendens as the right on immovable property is not questioned.

Following are the suit regard in this section 1. This Act deals with the transfer of property inter vivos , i. It contains the transfer of both movable and immovable property but a major portion of the enactment is applicable to the transfers of immovable properties only. The Transfer of Property Act, and its provisions along with basic concepts related to property laws have been explained in a systematic manner. Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of mortgage , lease and gifting.

Your valuable feedback in the form of comments or any desired inputs are encouraged and always welcome. Every contribution toward a goal is valuable, regardless of how small it may be. Under the Indian legal system, properties are divided into two categories — movable and immovable. The Transfer of Property Act ToPA , , which came into force on July 1, , deals with the aspects of transfer of properties between living beings.

One of the oldest laws in the Indian legal system, the Transfer of Property Act is an extension of the law of contracts and runs parallel to the succession laws. For those planning to transfer their immovable property, knowing the key aspects of the Transfer of Property Act is quite important. Parties: Under the Transfer of Property Act, a transfer of property can be effectuated by an act of two or more parties or an act by the operation of the law.

Type of property: The Transfer of Property Act is applicable primarily on transfer of immovable property from one living being inter vivos to another. Also, the Act is applicable on property transfer by individuals, as well as by companies.

However, the Transfer of Property Act is applicable to acts of parties and not on transfers applicable by the law. The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange.

The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable on the disposal of properties through wills and does not deal with cases of succession of property. See also: Everything you need to know about gift deed. Under the Indian Contract Act, , a person must be at least 18 years of age and have a sound mind, to be eligible to enter into a contract.

In terms of immovable property, one cannot transfer a property that one expects to inherit in future. Example: Ram expects that his maternal uncle, who had no children of his own, would bequeath his property to him and he transfers his right in the property to his son, the transaction would be held invalid.

A lessor can also not transfer his right to re-entry into a leased property, under the Transfer of Property Act. Example: Ram leases his plot to Mohan and puts in a clause in the lease agreement that he would have the right to re-enter, if the rent is not paid for over three months, then, he alone will have the right to do so.

He cannot pass on his right to re-enter to, say, Ganesh, his associate. The implications of the JDA are restricted only to the development part of the project.

The builder will have to get a general power of attorney to sell the project on behalf of the owner. Even in this scenario, the land owner will be the one providing the conveyance deed to the prospective buyers of the project. These include the rights of way passage , the rights of light, the right of water, etc. Example: Ram has a right of passage over the land belonging to Mohan.

Ram decides to transfer this right of way to Ganesh. As this is a transfer of an easement right, it is invalid.