ASSIGNMENT

TOPIC: - Section- 5: Transfer of property

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VII
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
1st GCT Assignment

Submitted To

Dr I.A KHAN Sir

Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)
 SYNOPSIS

1- INTRODUCTION OF TRANSFER OF PROPERTY.

2- BARE PROVISION OF SECTION-5 OF TPA,1882.

3-LIVING PERSON.

4-IN PRESENT OR IN FUTURE.

5- TO HIMSELF.

6- TRANSFER OF PROPERTY ACT, 1882 NOT AMOUNTING TO

TRANSFER OF PROPERTY.

7- CHARACTERISTIC OF TRANSFER OF ROPERTY.

8- CONCLUSION.

9- BIBLIOGRAPHY.
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE Dr I.A KHAN SIR

FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-4th Year GI-6492

17BALLB-72
1-Introduction of Transfer of Property:

Section 5 of the Transfer of Property Act, 1882 defines the term transfer of property. According
to this section, 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 and other living persons.
The phrase “living person” includes a company or association or body of individuals, whether
incorporated or not, but nothing in this section shall affect any law for the time being in force
relating to or by companies, associations or bodies of individuals.

The word property in the Act has been used in one of the following senses:
(i) Tangible material things like house.
(ii) Rights which are exercised over material things like the right to sell or make a gift of things.
(iii) Rights which are not exercised over any material such as the right to repayment of a debt.

The expression transfer of property implies various meanings. One sense maybe transfers of
things such as the sale of a house. Another sense maybe transfers of one or more of the rights
in a thing such as mortgage of a house or transfer of a debt.

Thus, if a new title has not been created or some interest has not been transferred in favour of
the Transferee, then the transfer of property cannot take effect.

An analysis of section 5 helps us understand the meaning of the phrase, “transfer of property”.
Thus, transfer of property means an act which may take effect in the present or future. The
property in question must be in existence at the time the transfer takes place. Moreover, the
conveyance of the property must be from one living person to another.

2- Bare Provision of Section 5 of transfer of property act,1872: -

Section 5 - “Transfer of property” Defined. – In the following sections “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 himself1 and one or more living persons; and “to
transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals,

whether incorporated or not, but nothing herein contained shall affect any law for the time
being in force relating to transfer of property to or by companies, associations or bodies of
individuals.

The word “transfer” is defined with the reference to the word “convey”. This word in English
Law in its narrower and more usual sense refers to the transfer of an estate in land; but it is
sometimes used in a much wider sense to include any form of assurance inter vivos. The word
“conveys” in Section 5 of the Indian Act is used in the wider sense referred to above. Transferor
must have an interest in the property. He cannot sever himself from it and yet convey it. A lease
comes within the meaning of the word „transfer‟.

3- Living Person: -

The words “living person” can only mean a human being, who is alive and conveys his property
to another person. A person, who disposes of his property by will, does not convey it as a living
person because the transfer takes effect after his death. There is no present transfer.

The words are use d as the transfer under the Act must be a deed intra vivos and not by will.
According to the Section, both the transferor and the transferee must be living, which includes
under Section 13 a person not in existence at the date of the transfer. The explanation to the
section further includes in the phrase a company or association or body or individuals whether
incorporated or not. So, does also “person” according to the General Clauses Act, 1897.

The expression “inter vivos” refers to transfer or conveyance of the property from one living
person to another. Thus, it is an act between two living persons who are parties to such
transaction, which takes place between two. That also is the trust of Section 5 of the Transfer
of Property Act. It is significantly clearer and more explicit when it says that “transfer of
property” means “an act by which is living person conveys property to one or more other living
persons”

Court has not been regarded as „living person‟ therefore; transfer made by the order to the
Court is not a transfer of property within the meaning of Section 5 of the Transfer of Property
Act.26
4-In Present or In Future: -

The words “In Present of in Future” mean that the conveyance may be one which takes effect
immediately on execution or at some distant date, that is to say, the interest of the transferee
arises immediately on the execution of the document of at the date fixed by the parties. A
transfer of property may take place not only in present, but also in the future, but the property
must be in existence. The words “in present or in future” qualify the word “conveys”, and not
the word “property.” A transfer of property that is not in existence operates as a contract to be
performed in the future which may be specifically enforced as soon as the property comes into
existence. The conveyance may, therefore, be present, future or conditional.

Some illustrations are given below:

a-A makes a gift of his property to B. He does not mention to when B shall get the property
and also does not law down any condition. The transfer is present and B gets the property with
immediate effect.

b- A transfers his property to B for life and then to C. The transfer in favour of B is present
(although he gets only life-interest) but the transfer in favour of C is future transfer.

c-A makes a gift of his watch to B provided that B gets first division in the next examination.
Here, although the gift has been declared today but it shall take effect only if B gets first
division. Such transfers are called conditional transfers.

5- To Himself: -

A transfer of property under Section 5 of the Act requires two „living persons‟, the transferor
and the transferee. One cannot transfer a property to himself. But, one can transfer a property
to himself in some other capacity. The words „to himself‟ were added to this section by the
Amending Act, 1929 to include in the transfer of property also a case where a person makes
any settlement of his property in a trust and appoints himself as the sole trustee. Here, the
transferor and the transferee are physically the same person but as transferor he has the legal
status of settlor whereas as transferee his legal status is that of trustee.
6- Transfer of Property Act, 1882 Not Amounting To Transfer Of Property: -

As the transfer of property’ means ‘conveying of property’, i.e., creation of new title or
interest in the favour of the transferee, if new title or interest has not created in favour of
transferee , the property cannot be said to be conveyed, thus no transfer of property.

a- Partition- As nothing new is obtained by a co-sharer on partition, it is not a transfer of

property. His specific share, which vested in him earlier, is simply separated.

b- The only right created in a charge is a right to payment out of the property subjected to
charge, thus it is not a transfer.

c-Relinquishment-It is an extinction of a right and therefore, there is nothing left to transfer.

Thus, a relinquishment by a reversioner of his reversionary interest does not amount to
transfer. But if the person in whose favour the ‘release’ is executed, gets certain rights by
virtue of such release, the transaction may amount to a transfer.

d-Surrender-It is not a transfer as it is the manager of a lesser estate with a greater one.

e-Easement-The creation of an easement does not amount to a transfer.

f- Will- Because it operates from the death of the person making it, while the definition
contemplates a transfer by a living person, does not fall within the definition of transfer.

g-Compromise- It may or may not amount to transfer. It depends on the facts and
circumstances of each case. In Hussiaa Banu v. Shivanarayan, it was held that where one of
the parties to a settlement gives up a claim to receive a certain sum of money from the other,
in consideration of the latter’s given up the right to certain property claimed by him, it would
amount to a transfer.

h-Family arrangement/settlement- A family settlement entered into by the parties for the
purpose of putting an end to the disputes among family members does not amount to transfer,
not being an alienation, it does not amount to the creation of an interest.
7- Characteristics of Transfer of Property: -

From above meaning and definition, we can find following characteristics of Transfer of
Property

• It is an act of conveyance.
• Conveyance is inter-vivos means between living person.
• Property must be conveyed from one or more living person to Himself, or any another
living person.
• Property must be transferred in present or in future.
• The term “person” includes a company, an association, or body of an individuals,
whether incorporated or not.

For the transfer of property, the property must be conveyed from transferor to transferee.

8-Conclusion: -

Hence, it can now be clearly understood that the transfer of property is a multi-dimensional
concept. The person transferring the property and the person receiving the property become a
part of the transaction owing to their rights and legal obligations enshrined in the Transfer of
Property Act, 1882.

9-Bibliography:

a- By Diva Rai -https://blog.ipleaders.in/transfer-of-property/

b- By Mayank Shekhar- https://www.legalbites.in/transfer-property-meaning-types/
c- Ankit Chaudhary, Transfer of Property, https://www.scribd.com/