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Transfer of Property Act, 1 8 8 2: Lecture-1

The document provides an overview of the Transfer of Property Act of 1882 in Bangladesh. It discusses the historical background of the Act, its key objectives of establishing a uniform law for property transfers, and its scope and applicability. The Act was intended to define existing laws around voluntary property transfers and amendments laws that were previously governed by conflicting English principles. It applies territorially across Bangladesh but excludes transfers governed by personal laws like Muslim and Hindu laws.

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Nawaz Sharif
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697 views16 pages

Transfer of Property Act, 1 8 8 2: Lecture-1

The document provides an overview of the Transfer of Property Act of 1882 in Bangladesh. It discusses the historical background of the Act, its key objectives of establishing a uniform law for property transfers, and its scope and applicability. The Act was intended to define existing laws around voluntary property transfers and amendments laws that were previously governed by conflicting English principles. It applies territorially across Bangladesh but excludes transfers governed by personal laws like Muslim and Hindu laws.

Uploaded by

Nawaz Sharif
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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TRANSFER OF PROPERTY ACT,

1882
L e c t u r e - 1

ADV. SAZZAD ALAM


LECTURER, STATE UNIVERSITY OF BANGLADESH
LLM.-MACQUARIE UNIVERSITY , SYDNEY, AUSTRALIA
MSS.- UNIVERSITY OF DHAKA.
LL.B.(HON’S)- BRAC UNIVERSITY
Key Words: Transfer of Property, Background, Applicability,
Objectives, Scope, lex- loci

 Key Questions:
 1. Discuss the historical background of Transfer of
Property Act.
 2. What are the objectives OF this Act?
 3. Discuss the scope and application of this Act.
 4. What laws are applicable in case of transfer of property?
 5. Narrate the scope of T P Act
 6. What is the lex- loci of The Act?
Application of Laws in case of
Transfer of Property (TP)
 When an immovable property is transferred from living person to
living person(s), the Transfer of Property Act, 1882 comes into play.
 In case, the property is transferred from a dead person to a living
person(s), the law applied will be the Law of succession or classical
religious Laws.
 A person should die without leaving a will (intestate), the law of
intestate succession is applicable and in cases where a person
dies leaving a will, the law of testamentary succession is applicable
Application of The Act
 TheAct is not applicable in case of transfer by
operation of Law.
 It is not applicable in case of transfer after death.
 It
is not applicable in case of contradictions with
personal law, i.e Muslim Law, Hindu Law etc.
 TheAct is applicable to movable property in Limited
Manner.
Application of Laws in case of Transfer of Property
(TP)
Background of The Act
 Before 1882, when the transfer of Property Act came into being, the transfers of
immovable properties in India were governed by the principles of English law and
equity. A few points were also covered by the Regulations and Act passed by the
Governor-General-in-Council.
 In the absence of any specific statutory provisions the Anglo- Indian Courts had
to fail back on English Law on real properties. Sometimes, the Courts had to
decide the case according to their own notions of justice and fair play. The result
was that the case law became confused and conflicting.
 To remedy this state of affairs a Law Commission was appointed in England to
prepare a Code of Substantive Law of Transfer of Properties for India.
Law Commissions and Bills
 The Law Commission consisted to Lord Romily, M,R, Sir
Edward Rayn, Chief Justice of Bengal, Lord Sherbrook, Sir
Robert Lush and Sir John Macleod, who had assisted Lord
Macaulay in drafting the Indian Penal Code.
 The Third Law Commission prepared a Draft Bill of the Act
back in 1870 and it was examined by the Forth Law
Commission consisting of Sir Charles Turner, Sir Raymond
West and Mr. Whitley Stokes.
 7 Bill was passed into the Act as from the first day of July,
1882.
After the Independence of Bangladesh

 The Transfer of Property Act, 1882 becomes the sole subject of


Bangladesh, and extends to the whole of the country having a specific
territorial limit within it.
 Territorial Limitation
 A territorial law is a Lex- loci or the law of a particular place and applies
to all persons inhabiting the territory irrespective of their personal status. It
is different from personal law that generally follows the person. The T P
Act, 1882 is a territorial law and its operation extends to the whole
Bangladesh. It was not enforced throughout the country in one go. It was
made applicable to different parts of the country on different occasions.
When the Act was first enforced (1st July 1882), it extended to the whole
of ‘British India’.
Objective of The Act
 The Transfer of Property Act, 1882 (hereinafter referred to as the ‘T P Act, 1882’)
was intended to define and amend the existing laws and not to introduce any
new principle. It applies only to voluntary transfers. The following may be
enumerated as the objectives of the Act:
 a) As per the preamble of the Act, the T P Act, 1882 is to amend or regulate the
law relating to Transfer of property by the acts of the parties.
 b) The Act provides a clear, systematic and uniform law for the transfer of
immovable property.
 c) The Act completes the Code of Contract since it is an enacted law for
transfers that take place in furtherance of a contract.
 d) With provision for inter-vivos transfers, the T P Act, 1882 provides a law parallel
to the existing laws of testamentary and intestate transfers.
 e) The Act is not exhaustive and provides scope to apply the principles of Justice,
Equity and Good Conscience if a particular case is not governed by any
provision of law.
Non- Exhaustive Legislation
 Ifwe follow the Preamble of the Act it can be
seen that this Act is no exhaustive. Even if The
Transfer of Property Act, 1882 covers a large
area of the law of the transfer of property , it
doesn’t profess to be a complete code.
Maharaja of Jeypur Vs. Running
[(1919)42 Ma.589 P.C]
 It was held that, in any case not covered by the Act, the
court is entitled to apply rules of English Law which are not
inconsistent with the Act as rules of Justice , equity and good
conscience.
But it was established by the case of Our Bad Vs. Shara
[(1934)39 CWN 34 P.C]
That where the provisions of the TP Act apply directly , rules of
English Law or equity are of title avail and the remedy must be
governed exclusively by the provisions of the Act.
Non-retrospective operation
 No statute can be construed to have a retrospective operation unless it’s language
plainly declares that.

 In the case of Namdeo Vs. Narmadabai ,[1953 air 228],


The Court observed that the principles of the TP Act could be
applied to transactions arising before the Act came into force
on the grounds of justice, equity and good conscience. But all
the principles of the TP Act cannot be assumed to be based on
the principle of justice, equity and good conscience.
Effects of Saving Clause in relation to the application
of Muslim Law.
 The provisions of this Act shall be applicable irrespective of whether be in
any personal law or other law, unless the conflicting area or cases are
covered by the exceptions which are mentioned in section 2 of the TP
Act,1882 :
a) Certain enactments not expressly repelled. b)incidents of
contracts. C) rights and liabilities created before the Act, d)
Transfer by the operation of the Law.
Apart form these the rules of Muslim Law has been made
unaffected only in case of its any conflict with the second
chapter of the Act.
Rasa Vs. Abbas [(1932)36 CWN 774]

The court said the rules contained


in chapter II of this Act aren’t
inconsistent with any rule of
Mahomedan Law, they are equally
applicable to Muslims.
Thank You 

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