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THE TRANSFER OF PROPERTY ACT, 1882 (4 of 1882) [17th
February 1882] An Act to amend the law relating to the Transfer of Property by act of Parties Preamble ¡V WHEREAS it is expedient to define and amend certain parts of the law relating to
the transfer of property by act of parties; it is hereby
enacted as follows: - CHAPTER I PRELIMINARY 1.
Short title
- This Act may be called the Transfer of Property Act, 1882.
Commencement
- It shall come into force on the first day of July, 1882. Extent - 1[It
extends2 in the first instance to the whole of
India except 3[the territories which, immediately
before the 1st November, 1956, were comprised in Part B
States or in the States of] Bombay, Punjab and Delhi.]
1
Subs. by the A..O. 1950, for the original third paragraph.
2
The application of this Act was barred in the Naga
Hills District, including the Mokokchang Sub-Division, the
Dibrugarh Frontier Tract, the North Cachar Hills, the Garo
Hills, the Khasia and Jaintia Hills and the Mikir Hills
Tract, by notification under sec. 2 of the Assam Frontier
Tracts Regulation, 1880 (2 of 1880).
The Act has been declared to be in force in Panth
Piploda by the Panth Piploda Laws Regulation, 1929 (1 of
1929), sec. 2, and continued in force, with modifications,
in the territory transferred to Delhi Province by the Delhi
Laws Act, 1915 (7 of 1915), sec. 3 and Sch. III. It has
also been partially extended to Berar by the Berar Laws
Act, 1941 (4 of 1941).
The Act has been extended with effect from 1st January,
1893, to the whole of the territories, other than the Scheduled
Districts, under the administration of the Govt. of Bombay.
Sections 54, 107 and 123 have been extended from 6th
May, 1935, to all Municipalities in the Punjab and to all
notified areas declared and notified under sec. 241 of the
Punjab Municipal Act, 1911 (Pun. 3 of 1911), see Punjab
Gazette, Extra., 1925, p. 27. Those sections and section
129 have been extended to certain areas in Delhi Province,
see Notifications No. 198/38-III, dated 30th May, 1939,
Gazette of India, 1939, Pt. I, p. 918, and No. 61/40-Judl.,
dated 16th November, 1940, Gazette of India, 1940, Pt. I,
p. 1639, respectively.
The Act has been extended to Manipur by the Union
Territories (Laws) Amendment Act, 1956 (68 of 1956). It has been rep. as to Government Grants by the Government
Grants Act, 1895 (15 of 1895) and rep. or modified to the
extent necessary to give effect to the provisions of the
Madras City Tenants Protection Act, 1921 (Mad. 3 of 1921)
in the City of Madras; see sec. 13 of that Act.
It has been amended in Bombay by Bombay Act 14 of
1939, and in Uttar Pradesh by Uttar Pradesh Act 24 of 1954. It has been extended to Pondicherry by Act 26 of 1968,
sec. 3, Sch., Part I 3
Subs. by the Adaptation of Laws (No. 2) Order, 1956,
for ¡§Part B States¡¨. 1[But this Act or any part thereof may be notification in the Official Gazette
be extended to whole or any part of the 2[said
territories] by the 3[State] Government concerned.]
4[And any State Government may 5[***]
from time to time, by notification in the Official Gazette,
exempt, either retrospectively or prospectively, any part
of the territories administered by such State Government
from all or any of the following provisions, namely: - Sections 54, paragraphs 2 and 3, 59, 107 and 123.] 6[Notwithstanding
anything in the foregoing part of this section, sections
54, paragraphs 2 and 3, 59, 107 and 123 shall not extend
or be extended to any district or tract of country for the
time being excluded from the operation of the Indian Registration
Act, 7[1908], (16 of 1908) under the power conferred
by the first section of that Act or otherwise.] 2.
Repeal of Acts -
Saving of certain enactments, incidents, rights,
liabilities, etc. In
the territories to which this Act extends for the time being
the enactments specified in the schedule hereto annexed
shall be repealed to the extent therein mentioned. But nothing
herein contained shall be deemed to affect - (a) the provisions
of any enactment not hereby expressly repealed; (b) any terms
or incidents of any contract or constitution of property
which are consistent with the provisions of this Act, and
are allowed by the law for the time being in force; (c) any right
or liability arising out of a legal relation constituted
before this Act comes into force, or any relief in respect
of any such right or liability; or (d) save as provided
by section 57 and Chapter IV of this Act, any transfer by
operation of law or by, or in execution of, a decree or
order of a Court of competent jurisdiction;
and nothing in the second Chapter of this Act shall
be deemed to affect any rule of 8[***] Muhammadan
9[***] law.
1
Subs. by the A.O. 1937, for the original para.
2
Subs. by the Adaptation of Laws (No. 2) Order, 1956,
for "said States".
3
Subs. by the A.O. 1950, for ¡§Provincial¡¨.
4
Subs. by Act 3 of 1885, sec. 1, for the original para.
5
The words "with the previous sanction of the
Governor General in Council" omitted by Act 38 of 1928,
sec. 2 and Sch. I.
6
Added by Act 3 of 1885, sec. 2 (with retrospective
effect). Section 54,
paras. 2 and 3, and sections 59, 107 and 123 extend
to every cantonment-see sec. 287 of the Cantonments Act,
1924 (2 of 1924).
7
Subs. by Act 20 of 1920, sec. 2, for "1877".
8
The word "Hindu" omitted by Act 20 of 1929,
sec. 3.
9
The words "or Buddhist" omitted by Act 20
of 1929, sec. 3. 3. Interpretation
clause - In this
Act, unless there is something repugnant in the subject
or context, - "immoveable
property" does not include standing timber, growing
crops or grass:
"instrument"
means a non-testamentary instrument:
1["attested", in relation to an instrument,
means and shall be deemed always to have meant attested
by two or more witnesses each of whom has seen the executant
sign or affix his mark to the instrument, or has seen some
other person sign the instrument in the presence and by
the direction of the executant, or has received from the
executant a personal acknowledgment of his signature or
mark, or of the signature of such other person, and each
of whom has signed the instrument in the presence of the
executant; but it shall not be necessary that more than
one of such witnesses shall have been present at the same
time, and no particular form of attestation shall be necessary:]
"registered"
means registered in 2[3[any part of
the territories] to which this Act extends] under the law4
for the time being in force regulating the registration
of documents:
"attached
to the earth" means - (a) rooted in
the earth, as in the case of trees and shrubs; (b) imbedded
in the earth, as in the case of walls or buildings;or (c) attached
to what is so imbedded for the permanent beneficial enjoyment
of that to which it is attached; 5["actionable claim" means a claim to any
debt, other than a debt secured by mortgage of immoveable
property or by hypothecation or pledge of moveable property,
or to any beneficial interest in moveable property not
in the possession, either actual or constructive,
of the claimant, which the Civil Courts recognize as affording
grounds for relief, whether such debt or beneficial interest
be existent, accruing, conditional or contingent;] 6[¡§a person is said to have notice" of a fact
when he actually knows that fact, or when, but for wilful
abstention from an inquiry or search which he ought to have
made, or gross negligence, he would have known it.
1
Ins. by Act 27 of 1926, sec. 2, as amended by Act
10 of 1927, sec. 2 and Sch. I.
2
Subs. by Act 3 of 1951, sec. 3 and Sch., for "a
Part A State or a Part C State" (w.e.f. 1-4-1951).
3
Subs. by the Adaptation of Laws (No. 2) Order, 1956,
for "any State".
4
See the Indian Registration Act, 1908 (16 of 1908).
5
Ins. By Act 2 of 1900, sec. 2.
6
Subs. by Act 20 of 1929, sec. 4 as amended by Act
5 of 1930, sec. 2 for the original paragraph. Explanation
I - Where any transaction relating to immoveable property
is required by law to be and has been effected by a registered
instrument, any person acquiring such property or any part
of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration
or, where the property is not all situated in one sub-district,
or where the registered instrument has been registered under
sub-section (2) of section 30 of the Indian Registration
Act, 1908 (16 of 1908), from the earliest date on which
any memorandum of such registered instrument has been filed
by any Sub-Registrar within whose sub-district any part
of the property which is being acquired, or of the property
wherein a share or interest is being acquired, is situated:]
Provided
that - (1) the instrument
has been registered and its registration completed in the
manner prescribed by the Indian Registration Act, 1908 (16
of 1908), and the rules made thereunder, (2) the instrument
or memorandum has been duly entered or filed, as the case
may be, in books kept under section 51 of that Act, and (3) the particulars
regarding the transaction to which the instrument relates
have been correctly entered in the indexes kept under section
55 of that Act. Explanation
II - Any person acquiring any immoveable property or any
share or interest in any such property shall be deemed to
have notice of the title, if any, of any person who is for
the time being in actual possession thereof.
Explanation
III ¡V A person shall be deemed to have had notice of any
fact if his agent acquires notice thereof whilst acting
on his behalf in the course of business to which that fact
is material:
Provided
that, if the agent fraudulently conceals the fact, the principal
shall not be charged with notice thereof as against any
person who was a party to or otherwise cognizant of the
fraud. 4.
Enactments relating to contracts to be taken as part
of Contract Act and supplemental to the Registration Act The
Chapters and sections of this Act which relate to contracts
shall be taken as part of the Indian Contract Act, 1872
(9 of 1872). 1[And sections 54, paragraphs 2 and 3, sections 59,
107 and 123 shall be read as supplemental to the Indian
Registration Act, 2[1908 (16 of 1908)].]
1
Added by Act 3 of 1885, sec. 3.
2
Subs. by Act 20 of 1929, sec. 5, for ¡§1877¡¨. CHAPTER II1 OF TRANSFERS OF PROPERTY BY ACT OF PARTIES (A) Transfer of Property, whether moveable or immoveable 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, 2[or to himself] and one or more
other living persons; and "to transfer property"
is to perform such act.
2[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.] 6.
What may be transferred Property
of any kind may be transferred, except as otherwise provided
by this Act or by any other law for the time being in force,
- (a) The chance
of an heir-apparent succeeding to an estate, the chance
of relation obtaining a legacy on the death of a kinsman,
or any other mere possibility of a like nature, cannot be
transferred. (b) A mere right
of re-entry for breach of a condition subsequent cannot
be transferred to any one except the owner of the property
affected thereby. (c) An easement
cannot be transferred apart from the dominant heritage. (d) An interest
in property restricted in its enjoyment to the owner personally
cannot be transferred by him. 3[(dd) A right to future maintenance,
in whatsoever manner arising, secured or determined, cannot
be transferred.] (e) A mere right
to sue 4[***] cannot be transferred. (f) A public
office cannot be transferred, nor can the salary of a public
officer, whether before or after it has become payable.
1
Nothing in Chapter II is to be deemed to affect any
rule of Muhammadan Law, see section 2, Act 20 of 1929.
2
Ins. by Act 20 of 1929, sec. 6.
3
Ins. By Act 20 of 1929, sec. 6.
4
The words ¡§for compensation for a fraud or for harm
illegally caused¡¨ omitted by Act 2 of 1900, sec. 3.
(g) Stipends
allowed to military 1[naval], 2[air-force]
and civil pensioners of 3[Government] and political
pensions cannot be transferred. (h) No transfer
can be made (1) in so far as it is opposed to the nature
of the interest affected thereby, or (2) 4[for
an unlawful object or consideration within the meaning of
section 23 of the Indian Contract Act, 1872 (9 of 1872)],
or (3) to a person legally disqualified to be transferee. 5[(i) Nothing in this section shall be
deemed to authorize a tenant having an untransferable right
of occupancy, the farmer of an estate in respect of which
default has been made in paying revenue, or the lessee of
an estate, under the management of a Court of Wards, to
assign his interest as such tenant, farmer or lessee.] 7.
Persons competent to transfer Every
person competent to contract and entitled to transferable
property, or authorized to dispose of transferable property
not his own, is competent to transfer such property either
wholly or in part, and either absolutely or conditionally,
in the circumstances, to the extend and in the manner, allowed
and prescribed by any law for the time being in force. 8.
Operation of transfer Unless
a different intention is expressed or necessarily implied,
a transfer of property passes forthwith to the transferee
all the interest which the transferor is then capable of
passing in the property, and in the legal incidents thereof.
Such
incidents include, where the property is land, the easements
annexed thereto, the rents and profits thereof accruing
after the transfer, and all things attached to the earth;
and,
where the property is machinery attached to the earth, the
moveable parts thereof;
and,
where the property is a house, the easements annexed thereto,
the rent thereof accruing after the transfer, and the locks,
keys, bars, doors, windows, and all other things provided
for permanent use therewith;
1
Ins. by Act 35 of 1934, sec. 2 and Sch.
2
Ins. by Act 10 of 1927, sec. 2 and Sch. I.
3
The word "Government" successively subs.
by the A.O. 1937 and the A.O. 1950 to read as above.
4
Subs. by Act 2 of 1900, sec. 3, for "for an illegal
purpose".
5
Added by Act 3 of 1885, sec. 4. and,
where the property is a debt or other actionable claim,
the securities therefor (except where they are also for
other debts or claims not transferred to the transferee),
but not arrears of interest accrued before the transfer;
and,
where the property is money or other property yielding income,
the interest or income thereof accruing after the transfer
takes effect. 9.
Oral transfer A transfer
of property may be made without writing in every case in
which a writing is not expressly required by law. 10.
Condition restraining alienation Where
property is transferred subject to a condition or limitation
absolutely restraining the transferee or any person claiming
under him from parting with or disposing of his interest
in the property, the condition or limitation is void, except
in the case of a lease where the condition is for the benefit
of the lessor or those claiming under him: provided that
property may be transferred to or for the benefit of a woman
(not being a Hindu, Muhammadan or Buddhist), so that she
shall not have power during her marriage to transfer or
charge the same or her beneficial interest therein. 11.
Restriction repugnant to interest created Where,
on a transfer of property, an interest therein is created
absolutely in favour of any person, but the terms of the
transfer direct that such interest shall be applied or enjoyed
by him in a particular manner, he shall be entitled to receive
and dispose of such interest as if there were no such direction.
1[Where any such direction has been made in respect
of one piece of immoveable property for the purpose of securing
the beneficial enjoyment of another piece of such property,
nothing in this section shall be deemed to affect any right
which the transferor may have to enforce such direction
or any remedy which he may have in respect of a breach thereof.] 12.
Condition making interest determinable on insolvency
or attempted alienation Where
property is transferred subject to a condition or limitation
making any interest therein, reserved or given to or for
the benefit of any person, to cease on his becoming insolvent
or endeavouring to transfer or dispose of the same, such
condition or limitation is void.
Nothing
in this section applies to a condition in a lease for the
benefit of the lessor or those claiming under him.
1
subs. by Act 20 of 1929, sec. 8, for the original
paragraph. 13.
Transfer for benefit of unborn person Where,
on a transfer of property, an interest therein is created
for the benefit of a person not in existence at the date
of the transfer, subject to a prior interest created by
the same transfer, the interest created for the benefit
of such person shall not take effect, unless it extends
to the whole of the remaining interest of the transferor
in the property. Illustration A
transfers property of which he is the owner to B in trust
for A and his intended wife successively for their lives,
and, after the death of the survivor, for the eldest son
of the intended marriage for life, and after his death for
A's second son. The interest so created for the benefit
of the eldest son does not take effect, because it does
not extend to the whole of A's remaining interest in the
property. 14.
Rule against perpetuity No
transfer of property can operate to create an interest which
is to take effect after the life-time of one or more persons
living at the date of such transfer, and the minority of
some person who shall be in existence at the expiration
of that period, and to whom, if he attains full age, the
interest created is to belong. 15.
Transfer to class some of whom come under sections
13 and 14 If,
on a transfer of property, an interest therein is created
for the benefit of a class of persons with regard to some
of whom such interest fails by reason of any of the rules
contained in sections 13 and 14, such interest fails 1[in
regard to those persons only and not in regard to the whole
class]. 2[16.
Transfer to take effect on failure of prior interest Where,
by reason of any of the rules contained in sections 13 and
14, an interest created for the benefit of a person or of
a class of persons fails in regard to such person or the
whole of such class, any interest created in the same transaction
and intended to take effect after or upon failure of such
prior interest also fails. 17.
Direction for accumulation (1) Where the
terms of a transfer of property direct that the income arising
from the property shall be accumulated either wholly or
in part during a period longer than - |