Concept of Sale under Transfer of Property Act
Sale under Transfer of Property Act, 1882
Sale just methods buying and selling of goods and services, under Transfer of Property Act, 1882 the Sale is of immovable property.
Section 3 of the Act is the Interpretation-clause, which accommodates the significance of key phrasings-
- Immovable property – does exclude standing wood, developing yields or grass.
- Instrument – implies a non-testamentary instrument. The instrument is a composed document, a formal or legal document recorded as a hard copy, for example, contract, deed, bond or rent or anything decreased to writing.
- Registered – register is a book containing a record of facts as they happen, kept by open power. A document can’t be said to have been appropriately registered if the enlistment has been made in negation of the provisions of the Registration Act.
- Attached – is a term depicting the actual association of two in any case autonomous structures or objects, the connection between two pieces of a solitary construction, each having its capacity.
What is Sale?
Property can be transferred through various modes, that is through sale, mortgage, lease, gift, exchange and so forth under the Transfer of Property Act 1882, Section 54 states that sale is characterized as the transfer of ownership of a property in exchange at a cost paid or guaranteed or part of the way paid or part guaranteed.
Effect of Sale
Section 54 further sets out the way in which a sale of immovable property ought to be affected. If case of occurrence of tangible immovable property of significant worth rupees hundred and upwards or in the event of reversion or some other intangible thing, a sale can be made simply by a registered instrument. At the point when the tangible immovable property is of worth not as much as rupees hundred the sale can be made by a registered instrument or by the conveyance of the property. The conveyance of a tangible immovable property is said to have occurred when the seller puts the buyer or someone else on the heading given by the buyer, possessing the property.
Essentials of valid sale
The parties to the sale (seller and buyer) ought to be capable to transfer
- The transferor of the immovable property executing the sale is known as the seller.
- The individual who gets the property offered to him for a consideration that is the transferee is known as the buyer.
- The transferor or the seller should be equipped to contract and qualified for the transferable property. That is, he should not be a minor, he ought to be of sound psyche and will not be precluded by law to transfer the property.
- The transfer ought to either be made by the proprietor of the property or an individual approved to discard the transferable property which isn’t his own.
- Biswanath Sahu v. Tribeni Mohan (2003)– In this case it was held that Karta was approved to discard the property of a joint Hindu family under particular conditions.
- A transferee ought to be equipped to get the transfer and he will not be precluded by law to get the property transferred.
The subject matter of the transfer should be a transferable immovable property
- At the point when a property is transferred with an intention to offer the property to the buyer for a consideration, the transfer of property incorporates the conveyance of the property alongside the ownership privileges of that property. It can be tangible or intangible.
- Under section 6 a property of any sort might be transferred aside from the accompanying-
- A transfer of spes succession
- The right of re-entry
- Restricted interest which could be right to future maintenance
- A right to sue
- Public office
- Pension or payments permitted to the military, flying corps, maritime and common pensioners of the public authority
- A transfer for an unlawful reason or consideration
- Statutory disallowances on transfer of interest
- Official Assignee of Madras v. Sampath (1933)– the court held that when a mortgage is executed by an heir is void even though the heir accordingly obtains the property as spes succession. Subsequently a transfer of property subject to spes succession is void.
The consideration for the sale should be paid, guaranteed, part paid or part guaranteed
- Price is a consideration paid for the transfer of property.
- Price is cash however not really cash promptly paid in notes and coins, it incorporates cash which may be as of now due or payable sometime not too far off.
- A transfer isn’t a sale if no price is paid or guaranteed or halfway paid or guaranteed.
- The transaction under sale without consideration won’t add up to gift except if evidence is showed for it nor would it be able to be an exchange if the transferor doesn’t transfer ownership of the property.
- A sale can be executed orally, there is no compulsory prerequisite of being transferred through a composed document.
- Nalamathu Venkaiya v. B.S. Neelkanta (2005)– the court held that payment of consideration is of the substance when a transfer of property is made through a sale. The hour of payment of consideration isn’t material.
Mode of execution of sale
- A property should be transferred by sale when it is executed by the transferor recorded in a writing and is validated and registered.
- Arjuna Reddy v. Arjuna C Thanga (2006)– At the point when a property is of a lower esteem the sale can be finished by conveyance of the property. Because of negligible worth, the convention of registration and attestation isn’t compulsory, in any case, in a sale a property of a worth not as much as rupees hundred the customs required are discretionary. Thus, a sale under the Act just relates to immovable property and not movable property.
Elements of Sale
- Transfer of ownership – ownership is the collection of the multitude of rights and liabilities in a property. When there is the transfer of ownership, the total or absolute, all things considered, and liabilities in a property are transferred from transferor to the transferee.
- Money consideration – the ‘price’ that is alluded in section hints to money consideration. Where the ownership of property is transferred in consideration for money it adds up to sale however in the event that it is transferred for whatever else it amounts to deal yet on the off chance that it is transferred for whatever else it adds up to exchange.
Contract for Sale
An agreement of sale should be founded on a mutual agreement between the seller and the buyer. This is diverse in English law, wherein an agreement available to be purchased transfers an impartial home to the buyer, however this standard isn’t material in India. An agreement available to be purchased doesn’t give any title in steady property.
Author: Kavya S,
CHRIST (Deemed to be University), 4th year BA LLB