Dr.

Ram ManoharLohiya National Law University,

Lucknow

Final Draft for Law of Property- 1

Transfer of property is also an act by which a living person conveys property,
in future, to one or more other living persons, or to himself.

Submitted to: - Submitted by:-

Dr. Radheshyam Prasad Kumar Sourav

Assistant Professor (Law) Semester 5

Section- A

Roll- 72

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 CONTENT
1. Acknowledgement 3

2. Introduction 4

3. Living persons 5

4. In present or in future 7

5. To himself 8

6. Family settlement 9

7. Compromise 10

8. Partition 10

9. Surrender 12

10. Release 12

11. Relinquishment 13

12. Charge 14

13. Conclusion 14

14. Bibliography 15

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 Acknowledgement

This project venture has been made possible due to the generous co-operation of

various persons. I, Kumar Sourav student of B.A., LLB (Hons.), Vth Semester

would like to express my sincere thanks and deep gratitude to Dr. Radheshyam

Prasad (Assistant Professor), without whose thorough and insightful guidance

this project work would not have been a success.

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 INTRODUCTION

Section 5 of the Transfer of Property Act, 1882 defines the transfer of property as an act by
which a living person conveys property, in present or future, to one or more other living
persons, or to himself and one or more other living persons; and to transfer property is to
perform such act.

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.1 A lease comes within the meaning of the word transfer.2
The words living person exclude transfers by Wills and the Will only operates after the
death of the testator.
In Ma Kyin Hone v. Ong Boon Hock3, a single Judge of the Rangoon High Court said that the
word transfer is a word of very wide meaning and includes every transaction whereby a
party divests himself or is divested of a portion of his interest, that portion subsequently
vesting or being vested in another party. This meaning of transfer is supported by the
aforesaid definition in the Act.
The Legislature has not attempted to define the word property, but it is used in this Act in
its widest and most generic legal sense4. Section 6 says that property of any kind may be
transferred, etc. Thus an actionable claim is property5; and so is a right to a re-conveyance of
land6. Property is not only the thing which is the subject matter of ownership, but includes the
dominium or the right or ownership or of partial ownership, and as Lord Langdale said it is
the most comprehensive of all terms which can be used inasmuch as it is indicative and
descriptive of every possible interest which the party can have.7

1
Mulla, The Transfer of Property Act 73 (Lexis Nexis , 9th edition 2004).
2
Krishna Kumar Khemka v. Grindlays Bank PLC, AIR 1991 SC 899.
3
AIR 1937 Rang. 47.
4
Bansigopal v. V.K. Banerji, AIR 1949 All. 433.
5
Rudra Perkash v. Krishna, (1887) 14 Cal. Pg.241, 244.
6
Narasingarji v. Panaganti, AIR 1921 Mad. 498.
7
Jones v. Skinner, (1835) 5 LJ Ch. Pg. 87, 90.

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It may be noted that property is essentially a bundle of rights and interests. When a property
is transferred, there may be transfer of all the rights in that property or only some of it. All the
rights in the property signify ownership or absolute interest. Only some rights or interests in a
property would mean partial or limited interest. In Sunil Sidharthbai v. Commissioner of
Income Tax8, the Supreme Court rightly observed that in general, transfer of property means
passing of a right in the property from one person to another. In one case there may be
passing of entire bundle of rights from transferor to transferee, but in another case there may
be transfer only some of such rights. This, if A makes a gift of his house to B, there is transfer
of absolute interest of the house. It is a transfer of property. On the other hand, if A
transfers the right of enjoyment of his house to B for a certain period it is called a lease. It
is transfer of only partial interest in the house but it is also a transfer of property.

Living Persons

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 used 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.9
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 more clear and 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. Where property was acquired by or transferred in favour of Secretary of

8
AIR 1986 SC 368
9
Transfer of Property Act, 1882 13

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unregistered Society or Club, Secretary of unregistered Club or Society has no legal status to
hold or acquire the property in question because Secretary of unregistered Society or Club
cannot come within the definition of living person within the meaning of Section 5 of the
Act10.
A deity is not included in the definition of person in Section 5 of the Act 11. If a deity is not
person, the provisions of the Act including Section 3 do not govern a transfer of property
made in favour of a deity.12
An idol is a juristic person capable of holding property13, but it is not a living person. An
idol not being a living person, a dedication of land to an idol does not fall within the terms of
Section 122 and need not be made in writing or by a registered instrument under Section 123
of the Act.14 It has also been said that an idol is only the symbol of the deity and that it would
be contrary to the Hindu religion that a deity make an acceptance of worldly goods 15 as
discussed in the case below.
In Bhupati Nath v. Ram Lal16, a full bench of the Calcutta High Court dealing with a Hindu
will, held that the principle of Hindu Law which invalidates a gift other than to a sentiment
being capable of accepting it does not apply to a bequest to the trustees for the establishment
of an image and the worship of a Hindu deity after the ancestors death nor does it make such
a bequest void. The Full Bench, after examining the Hindu texts and authorities observed that
according to the strict Hindu juridical notion there can be no gift in favour of the Gods for in
the case of deities there cannot be any acceptance and therefore necessarily any gift.
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
Act17.

10
Usha Rani Kundu v. Agradut Sangha and other, (2006) 3 CALLT 139 HC.
11
Ashrafi Devi v. Prem Chand, AIR 1971 All. 457, 464.
12
Ibid.
13
Pramatha Nath v. Jai Indra Bahadur Singh, AIR 1919 PC 55.
14
Narasimha v. Venkatalingum, (1927) ILR 50 MAD 687.
15
Mulla, The Transfer of Property Act 81 (Lexis Nexis , 9th edition 2004).
16
(1910) ILR 37 Cal 128.
17
Raghubar Singh v. Jai Indira Bahadur Singh, AIR 1919 PC 55.

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 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. In Re
Mahomed Hasham & Co.18, Martin, J., in holding that Section 5 did not apply to the
Presidency Town Insolvency Act, observed: I am not absolutely sure what the words in
presenter in future refer to. I should have thought grammatically they refer to property. In
Shumsuddin v. Abdul Husein19, Jenkins, CJ., remarked, there is no definition in the Act of
convey or of property, but It is to be noticed that a transfer means a conveyance of
property not only in present but also in future.
A transfer of property may take place not only in present, but also in the future20, but the
property must be in existence. The words in present or in future qualify the word
conveys, and not the word property21. 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 existence22.

To sum it up a transfer of a property may be made so as to take place with immediate

effect or to take place on a future date. The transferor can make arrangement that the property
is vested or accrues to the transferee immediately after the completion of the transfer. He
may also make such arrangements in which the vesting of the interest of the property is
postponed to a future date. He is free to transfer a property also upon the fulfilment of certain
conditions23. Some illustrations are given below:24

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.

18
(1922) 24 BOM LR 861.
19
(1907) 31 BOMLR. 165.
20
Sumsuddin v. Abdul Husein, (1907) 31 BOMLR 165, 172.
21
Jugalkishore v. Rao Cotton Co, AIR 1955 SC 376.
22
Mohendra v. Kali, (1903) Cal. 265, 274.
23
Dr.R.K. Sinha, The Transfer of Property Act 52 (11 th ed., Central Law Agency, Allahabad, 2010).
24
Ibid.

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 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.

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.

The conveyance may, therefore, be present, future or conditional.

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
trustee25. 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.

Transfer of property as contemplated under this Act carries the same meaning
throughout this enactment as it has been defined in Section 5. This definition has limited the
scope of the term transfer of property. Unless the above mentioned essential elements are
present in transaction, it cannot be regarded as a transfer of property26.

25
Naranbhai v. Suleman, (1975) 16 GUJ LR 289.
26
Dr.R.K. Sinha, The Transfer of Property Act 54 (11th ed., Central Law Agency, Allahabad, 2010)

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 Familty Settlement

Family settlement or family arrangement is not a transfer of property. In a joint family

property all the members have their specific shares but they are not separated and are held
conjointly by all of them. When a family settlement takes place, the already existing specific
shares of the members of the family are defined and separated in order to avoid any possible
disputes. Thus, in a family settlement there is a mutual agreement between the members of a
family to hold their respective shares separately. It simply acknowledges and defines the title
for each member27. In Sadhu Madho Das v. Pandit Mukund Ram28, the Supreme Court
observed that family arrangement is based on the assumption that there is an antecedent title
of some sort in the parties and the agreement acknowledges and defines what that title is29.

In Ramdeo Foods Products Pvt. Ltd. v. Arvindbhai Rambhai Patel30, a memorandum of

understanding was executed to resolve the dispute between the members of a family. The
Supreme Court held that such memorandum agreed between the family members can be
treated as family settlement and the Court cannot interfere with this. The Court will not
easily disturb it. Accordingly it was held as family settlement and not as a transfer of
property.
It is not necessary that a family settlement should be restricted to the members of the family
upon a particular degree. Such settlements can take place not only among the heirs of a
particular class; they can include persons outside the preview of succession31.

In a family settlement since there is no creation of new title or interest in favour of any
member, there is no conveyance, therefore, it is not a transfer of property.

Compromise

27
Tek Bahadur v. Devi Singh, AIR 1966 SC 292.
28
AIR 1955 SC 481.
29
Dr.R.K. Sinha, The Transfer of Property Act 55 (11th ed., Central Law Agency, Allahabad, 2010).
30
(2006) 8 SCC 726.
31
Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1.

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A compromise of doubtful rights is not a transfer but is based on the assumption that there
was an antecedent title of some kind in the parties which the agreement acknowledged and
defined32. The position would be different if such a compromise also transferred properties to
a person who has neither a pre-existing title nor a claim to such a title.33

In other words compromise is not a transfer of property. Compromise means agreement for
the settlement of doubtful claims between the parties in respect of some property. Like family
settlement, here too the titles or interests of the parties are antecedent or already existing; the
compromise deed simply defines them34. Since there is no conveyance in compromise it is
not a transfer of property.

Partition

A partition of property is not a transfer of property, but is analogous to an exchange35. In

other words partition means separating the parts of co-owned property. If in a property there
are several co-owners having, under the law, their respective interests but the whole property
is neither used nor enjoyed by them separately then, after the partition each member gets
merely the separate right of enjoyment36. Accordingly it has been held that partition is not
really a process by which a joint enjoyment is transformed into an enjoyment severally, and
no conveyance is involved in the process as the conferment of a new title is not necessary37. It
simply effects a change in the mode of enjoyment of property but it is not an act of conveying
property from one living person to another38. In Mohar Singh v. Devi Charan39, the Supreme
Court explained the legal nature of a partition in the following words:

32
Balkrishna v. Raghunath, AIR 1951 Nag. 171.
33
Reddiar, MP v. A. Ammal, AIR 1971 Nag. 182.
34
Abbas Bandi Bibi v. Muhammad Raza, AIR 1929 Oudh 193.
35
Mulla, The Transfer of Property Act 76 (Lexis Nexis , 9th edition 2004).
36
Dr.R.K. Sinha, The Transfer of Property Act 56 (11th ed., Central Law Agency, Allahabad, 2010).
37
Chanaderwati v. Lakhmi Chand, AIR 1988 Delhi 13.
38
Indoji Jethaji v. Kothapalli, (1919) 54 IC 146.
39
(1988) 3 SCC 63

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Partition is not actually a transfer of property, but would only signify the surrender of a
partition of a joint right, in exchange for a similar right from the other co-sharer or co-
sharers.

Mookharjee, J., in Atrabanessa Bibi v. Safutullaah Mia40, said that partition signifies the
surrender of a portion of a joint in exchange for a similar right from the co-sharer.

In Sarin v. Poplai41, Gajendragadkar, CJ., has observed that the true effect of partition is
that each coparcener gets specific property in lieu of his undivided right in respect of the
totality of the property of the family.

For the purpose of determining whether the document is a partition deed, it is the contents of
the document that are to be taken in to consideration and not the nomenclature alone. There is
no recital in the whole order agreement to the effect that it was recording the agreement of an
earlier partition which had already taken place. The agreement in question purported to
create, declare, assign, limit and extinguish right and interest over immovable properties. It
was held that the document was required to be duly stamped and properly registered42.

A father partitioned his property among his three sons. The agricultural land was given to one
of them, the plaintiff in the case. The pucca house was given to the two others. They were
already in possession of the property respectively as distributed under the partition and had
been making improvement in their respective shares. Thus they had been acting on the family
settlement. They had become bound by it. The Court said that it was immaterial that the
mutation of the agricultural land was in the name of all the three sons43.

Surrender

40
(1916) 43 Cal. 504, 509.
41
(1966) 1 SCR 349.
42
Vincent Lourdhenathan v. Josphine Syla Dominque, AIR 2008 NOC 1173 Mad.
43
Gurcharan Ram v. Tejwant Singh, AIR 2008 NOC 1650 P&H.

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Surrender is not a transfer of property as defined in the section44. Surrender means merging of
a lesser interest with a greater interest in such a manner that the greater interest is not
enlarged. Surrender is therefore falling of lesser estate into greater. For example, A is
landlord and B is his tenant. A as landlord has ownership of the house. Ownership or absolute
interest is a greater interest. B as a tenant has also an interest in As house but Bs interest is
lesser interest because it is limited only to the right of enjoyment. Now, if B vacates the
house before expiry of the term of tenancy, it would amount surrendering of his right of
residence. Here, the lesser interest, namely the right of residence, which was away from the
absolute interest of the landlord during tenancy, comes back to ownership. There is no
creation of any new title or interest in favour of the landlord. Thus surrender by a tenant to
the landlord45 or by a widow to the reversioners46 has not been regarded as a transfer of
property.

Release

Release is a transfer of property. If a larger interest falls into a smaller interest in such a way
that smaller interest is enlarged then, for the holder of the smaller interest there is creation of
a new title or interest. Since some new titles or interest are added to transfer of property47.
Where a person in whose favour the release is executed gets rights by virtue of the release,
the deed amounts to transfer48.
In Muniappa Pillai v. Periasami49, after taking some money A executed a deed
transferring his right, title and interest in his half share of the property absolutely in favour of
B. The document, thus gave B absolute rights in the share which belonged to A and to which
B was not entitled. The Madras High Court held that this document clearly came under the
definition of deed of transfer within the meaning of Section 5.

44
Makkan Lal Saha v. Nagendranath Adhikari, AIR 1933 Cal. 467.
45
Morati v. Krishna, (1925) Nag. 455.
46
Kalka v. Jaswant, (1926) Oudh 69.
47
Official Assignee, Madras v. Tehmina Dinshaw Tehrani, AIR 1972 Mad. 187.
48
Dr.R.K. Sinha, The Transfer of Property Act 57 (11th ed., Central Law Agency, Allahabad, 2010).
49
(1975) 1 MLJ 236.

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Since coparcenary property is a joint property of all the coparceners therefore, a release in
favour of only one or some of the coparcener would be deemed to be a transfer in favour of
all the coparceners. In M. Krishna Rao v. M.L. Narasikha Rao50, a release deed was executed
in favour of some out of several coparceners. The Andhra Pradesh High Court held that the
release made in favour of some coparceners would operate to the benefit of all the
coparceners and not only in favour of those coparceners in whose favour release was
executed. The release in all the cases may be with or without consideration.

Relinquishment

Relinquishment is not alienation51, unless intention to transfer is found to exist, as when it is

in favour of a person having no interest52. A registered instrument styled as a release deed
releasing the right, title and interest of the executant in the proprietary in favour of the release
for valuable consideration may operate as a conveyance53.

In other words, relinquishment means giving up of ones rights or interests. Its effect
is extinction of ones rights in a property; there is no intention that the person relinquishing
his interest is conveying that interest in favour of another person. Relinquishment is
therefore, not a transfer so that it may amount to a transfer of property as defined in Section 5
of the Act54.

Charge
50
AIR 2003 AP 498.
51
Provident Investment Co. v. Income Tax Commissioner, AIR 1951 Bom. 95.
52
Kuppuswami Chettiar v. Arumugam, (1967) 1 SCR 275, AIR 1967 SC 1395.
53
Thayyil Mammo & Another v. Ramunniram & Another, AIR 1966 SC 337.
54
Kuppuswami Chettiar v. Arumugam, (1967) 1 SCR 275, AIR 1967 SC 1395.

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Charge is not a transfer of property. Charge is created on a property for securing a payment
out of that property. When the property of a person is charged for securing certain payments
e.g. maintenance, it is simply securing personal obligation out of the property. A charge is,
not transfer because the only right created under it is a right to payment out of the property
subjected to the charge.55

Conclusion

Hence, Transfer of property is also an act by which a living person conveys property, in
future, to one or more other living persons, or to himself.

BIBLIOGRAPHY
55
Gobinf v. Dwarkanath, (1908) 35 Cal. 837

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 Article 1:- http://www.netlawman.co.in/ia/lease-understanding-concepts

Article 2:- http://articles.economictimes.indiatimes.com/2005-11-

13/news/27494193_1_sale-deeds-seller-property-act

Article 3:- http://advocateji.com/what-is-a-significance-of-actionable-claim

Dr. PoonamPradhanSaxena, Property Law (LexisNexis, 2nd edition 2011)

Mulla, The Transfer of Property Act, (LexisNexis , 9th edition 2004)

Dr.R.K. Sinha, The Transfer of Property Act (Central Law Agency, Allahabad, 11th
edition 2010)

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