Shakuntla Sangam Assistant Professor

At Dr. RMLNLU Lucknow

BACKGROUND
In India, the personal laws governed the
transfer of property assisted by orders of
Courts under Civil Procedure Code.
Transfer of movable goods was regulated
to an extent by the Indian Contract Act,
1872 AND in case of transfer of
immovable property, the Anglo-Indian
courts often turned to principles of Justice,
Equity and Good Conscience as it
prevailed in England at that time. Prior to
Transfer of Property Act, 1882.
A Bill, finally presented to the Legislative
Council, became a law on the 17
th
of February
1882 and came into force from 1
st
July of the
same year. (137 sections)
The Transfer of Property Act, 1882 mainly deals
with transfer of immovable property by the act of
parties by the operation of law in some
cases(section 57) sale by court Denendronath
v Ramcoomar Ghose(1881) ILR 7 Cal 693, 8 IA
65, p 75.



It intended to define and amend the
existing laws and not to introduce any
new principle. It applies only to
voluntary transfers. It provides a
clear, systematic and uniform law for
the transfer of immovable property.

Section 6 of the Act says property of
any kind it implies every possible
interest or right that can be possessed
and is a subject of ownership.
Property may be tangible or intangible,
property is essentially a bundle of
rights or interest. When a property is
transferred it actually the transfer of
rights. All rights in a property denote
the ownership or absolute interest.
CONTINE..
MOVABLE
PROPERTY
It can be transferred from
one place to another
Movable property is dealt
with under the Sales of
Goods Act, 1930
Registration is optional as
per the Indian
Registration Act, 1908
Eg. A decree for sale of
immovable property. A
royalty.
Standing timber, growing
crops, and grass. Right to
collect rent of immovable
property.






IMMOVABLE PROPERTY

The definition of Immovable
property given in the S.3 of
Transfer of Property Act
1882, is not exhaustive, it
is the negative definition
which exclude the things
and says immovable
property does not include
standing timber, growing
crops or grass.
The definition in the General
clauses Act also not
exhaustive but it is some
what positive definition
which includes land,
benefits to arise out of
land , and things
attached to the earth.

TRANSFER OF PROPERTY
Section-5
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, 1[or to
himself] and one or more other living persons; and to
transfer property is to perform such act.
Future property not allowed
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.]
Sale (Immovable Property). Transfer of
Complete Rights. Consideration.
Mortgage. ( it is of six kind- 1. Possession,2.
Enjoyment,3. Subject to Condition,4.
Equitable,5. Symbolic, 6. Constructive.)
Limited Rights Transfer.
Gift- ( No consideration)
Actionable claim.- Unsecure debt.
Lease (Time force, Rent)
NOTE-Will or Inheritance is the exception of
this rule as property transfer automatically by
operation of law.

?
Transfer" means a process or an act
by which something is made over to
another. It does not however, mean
that the making over of the thing
should always be absolute.
NOT A TRANSFER OF PROPERTY

Family settlement.
Compromise
Partition.
Surrender.
Relinquishment.
Charge.
Release- It is a transfer of property,
because when larger interest falls into
smallest interest every small interest
generate a title for some one or new
person.




Section- 6
Part governed by personal laws
Muslim Law-Wakf of property
Hindu Law-Religious offering and copasner
like female legacy
Civil Law- Agricultural Land
Prohibited by any other law in force.
Spes Successionis- Expectation of
succession ( of gaining something) eg. Will
or inheritance

Section-9 says where writing is not
necessary the property may be
transferred orally. i.e. without writing any
deed.
It means there are two mode of transfer-
Delivery of possession- which generally
happened in case of movable property.
Transfer by registration.


Any body can transfer who-
Attained the age of majority.
Soundness of mind.
There should be no other legal bar.
Nemo dept quat non habit- You can
transfer only those which you have.
Note- Competent to inter into a contract.

TRANSFER FOR BENEFIT OF UNBORN
PERSON
General rule of TPA is transfer vivos
that is transfer of property between
living person at the date of transfer, but
section 13 of this act provide the
conditions where a interests can be
created for unborn person or a person
who is not exist at the date of transfer
subject to certain conditions which is
also authenticated by Indian Trust Act
S.5

S-25:Provides conditions
Pre condition eg. Gift of house with
condition to marry
After condition eg. Gift of house with
condition not visit within 3 years to USA
Simultaneous/side by site condition eg.
Gift of house with condition has to live in
the house.
Impossible conditions
Unlawful / forbidden by law
Impossible performance.
Opposed to public policy
Fraudulent conditions

Section-35 : 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.
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. ( Probate &Reprobate)


When a person professes to transfer
a property not his own
In lieu of the property the transferor
confers certain benefits to the owner
of the property
Transfer of benefit and confer of
benefit to be part of the same
property.
Suspension of Election- The election
may suspend till the time there are
any legal disability.



S- 52; Les= Litigation & Pendens= Pending
There is a pendency of a suit or proceeding
The suit or proceeding must be pending in a
court of competent jurisdiction
A right to immovable property is directly and
specifically involved in the suit
The suit or proceeding must not be collusive
The property in dispute must be transferred
or otherwise dealt with by any party to suit
The transfer must affect the rights of the
other party to litigation
It applies only on immovable properties



S-53-A; It is an equitable doctrine, it
based on the Maxim equity looks on
that as done which ought to have been
done.
This doctrine protect the transferee who
has done his part or willing to perform
his part, he can not be distitle on the
basis of the legal formalities has not
been done.


S-54-Sale is the transfer of ownership, in
exchange of price paid, or promises to
paid or part paid or part promise.
Essential of Valid Sale
Two parties seller and purchaser
Competent parties
Subject matter i.e. property in existence.
Money consideration, price of the property
The conveyance/ contract made in
accordace with existing law

Registration of Sale Deed: Sale relating
only with tangible immovable property, if
the value of property above Rs 100, it must
be registered, in case of value of tangible
immovable property less then Rs 100 such
transfer may be made either by registered
instrument or transfer of property.
Delivery of property : Deliver of tangible
immovable property takes place when
buyers takes the possession of the
property.

HIRE PURCHASE AGREEMENT IS NOT
AMOUNT TO SALE
Because the ownership of the property is not
transferred to the transferee on the basis of
such agreements. Purchaser take the
possession of the property and agreed to pay
the price against the property in future
installment.
The installments are not the price paid in
future.
In the same time the purchaser has the
option to refuse the sale
The seller has also right to terminate the sale.
There is no absolute transfer of ownership.




Section-58(a) Transferring Limited
interest of property for taking Loans. It
is a security against loan on the basis
of any immovable property
Where a loan is secured against any
immovable property is called
Mortgage, and when it secured against
any movable property its called
pledge.




There must be transfer of Limited
Interest
Interest transferred against any
specific immovable property.
Purpose of transfer must be to secure
payment of any debt, or performance
of an engagement which may give
rise to a pecuniary liability.

UNSUFRACTUARY MORTAGAGE
Sec-58 (d) where mortgagor
delivers the possession to
mortgagee to retain possession
until payment and to receive
rents/profits BUT there is no right to
sell the property.

Secton-100: Where immovable property of
one person is, by act of parties or by
operation of law, made security for
payment of money to another, and the
transaction does not amount to a
mortgage, the latter person is said to have
a charge on the property; and all
provisions in respect of simple mortgage
will apply to such charge. but it will be a
charge for purpose of registration under
Companies Act, as per section 124 of
Companies Act].
Section-118: When two persons mutually
transfer the ownership of one thing for
the ownership of another, neither thing
or both things being money only, the
transaction is called an exchange.
S- 130 Actionable claim means a claim to
any debt or to any beneficial in movable
property not in possession (either actual or
constructive) of the claimant.
The claim should be such be such as Civil
Court would recognize as affording grounds
for relief. Such debt or beneficial interest be
existent, accruing, conditional or
contingent.
Eg. Claim to any debt etc such as Arrears of
rent
PF and Money due in insurance.


Copy right
Debentures
Beneficial interest in immovable property
GIFT DEED

Gift is an instrument to transfer ownership without any
exchange of money To gift immovable property, just have to
draft the document on a stamp paper, have it attested by two
witnesses and register it.
Registering a gift deed with the sub-registrar of assurances is
mandatory as per Section 17 of the Registration Act, 1908,
failing which the transfer will be invalid. Besides, such a
transfer is irrevocable. Once the property is gifted, it belongs
to the beneficiary and you cannot reverse the transfer or even
ask for monetary compensation.
Gift movable property like jewellery, registration is not
compulsory. At the same time, a mere entry in an account
book is not sufficient to establish a transfer. Apart from
physically handing over the property, you need to back it with
a gift deed. The process is slightly different if you are gifting
company shares. You will have to fill out the share transfer
form and submit it to the company or registrar, and the transfer
agent of the firm. Once again, get a gift deed drawn and
executed to complete the transfer, but the document need not
be registered.
The biggest benefit is that there is no tax implication if you
are gifting property to certain relatives .However, you still
have to pay stamp duty.






which can vary depending on the state in which the
transfer takes place. this duty have to pay even in the
case of movable property. Expect to shell out 2-8% in
case of relatives, and 3-8% for non-relatives.


Type of property Relatives Non-relatives
Immovable 1-8% for value of
property
5-11% for value of
property
Movable 2-8% for value of
property

3-8% for value of
property
Gift deed cannot be revoked
It can be challenged on the grounds
that the donor was not of sound
mind or a minor
Note- No one can gift a property
that's held jointly.
RELINQUISHMENT DEED
This document is quite different from
a gift deed, though the legal
implications are the same.
It can be use to transfer rights in a
particular property to another co-
owner. Such a transfer is also
irrevocable even if it is without any
exchange of money. It must be signed
by both and registered there is no
discount for relatives, nor are there
any tax benefits.


It allows seamless transfer of the share in
a jointly-held property.
"This document is most commonly used
when a person dies without leaving
behind a will and all siblings end up
inheriting the property,". Unlike a gift
deed, the relinquishment deed for
monetary consideration can be drawn.
LIMITATION
There are no tax benefits.
The term 'transfer' includes relinquishment, not
gift.
When there is relinquishing of property for
monetary consideration, it will result in capital
gains for the transferor and if the consideration
is less than the stamp duty value of the
property, the difference between the stamp duty
and the consideration will be taxed in the hands
of the buyer," .
If relinquish is without any consideration, the
stamp duty value of the property will be its sales
price.

Wife or husband
Brother or sister
Wife or husband's brother or sister
Parents
Wife or husband's parents
Parents' brothers and sisters
wife or husband's parents' brothers and
sisters
Legal heir, if any
TAX IMPLICATIONS OF SALE OF ANY
HOUSE PROPERTY, COMMERCIAL OR
RESIDENTIAL

For the purpose of Real Estate the Long-term
Capital gain would be only if you hold the
property for more than three years, then it is
subjected to tax @20%. In case you sell the
property in less than three years time then it
would become short-term Capital Gain and
the same is required to be taxed at the
prevailing tax schedule of the rate applicable
to the assessed depending on his other
incomes.


The instruments like Agreement to
Sell, Conveyance Deed, Exchange
of property, Gift Deed, Partition
Deed, Power of Attorney, settlement
and Deed and Transfer of lease
attract Stamp Duty on market value
of the property.
Spouse: Lineal ascendant or
descendant( their spouses) of you
and your spouses.
Spouses siblings and their respective
spouses.
Brothers or sisters of either of your
parents.
Note- In case of Hindu undivided family,
any member belonging to the family.

Salary
Property rental income
Capital gains such as profit from sale of
house, land, gold, etc.
Income from business/profession: This applies
for entrepreneurs and small business people
who don't get a regular salary income. Some
examples are doctors, lawyers, etc
Income from other sources such as interest
received on bank deposits, winnings from
lotteries or game shows, etc.


Income Tax! Any transfer of an immovable property
will now invite a tax deduction at source of one per
cent on the value of the transfer if it is Rs. 50 lakh
or more, according to the provisions of the Union
Budget 2013, which has come into force with effect
from June 1, 2013. The objectives of this provision
are multiple many significant transactions go
unreported with neither the buyer nor the seller
quoting a PAN and also the one per cent TDS on
these transactions will address fiscal deficit by
increasing revenue collection. While the objectives
are commendable, the lay person is likely to face
several questions such as is TAN (Tax Deduction
and Collection Account Number) required to comply
with provisions, how does one issue TDS certificate
to seller, filing of TDS returns, deposit of taxes and
scrutiny from the TDS officer, etc.




SECTION -3(1) IN THE PAYMENT OF TAXES
(TRANSFER OF PROPERTY) ACT, 1949


Where any document required to be registered
under the provisions of clause (a), clause (b),
clause (c) or clause (e) of sub- section (1) of
section 17 of the Indian Registration Act, 1908,
purports to transfer, assign, limit or extinguish
any right, title or interest in any property, other
than agricultural land, belonging to any person to
whom this Act applies, no registering officer
appointed under the said Act shall register any
such document, unless it is certified by the
Income- tax Officer of the area in which the
property is situate in respect of the person whose
right, title or interest in the property is to be so
transferred, assigned, limited or extinguished
SECTION 4 IN THE PAYMENT OF TAXES
(TRANSFER OF PROPERTY) ACT, 1949

Recovery of taxes where property has been
transferred without a certificate, of any right,
title or interest in any immovable property,
other than agricultural land, belonging to any
person to whom this Act applies, the Income-
tax Officer of the area where the property is
situate is satisfied, after giving such person
notice in this behalf for a period of not less
than one month, that no certificate in the
terms mentioned in section 3 would have
been issued to him if this Act had been in
force on the date the transfer was made, he
may.

THANK YOU!