Person Competent to transfer – Transfer of Property Act ,1882
Transfer of property Act ,1882
“Transfer of property” is defined under Section 5 of Transfer of property Act,1882 here the 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 , and one or more other living persons and to transfer is perform such act.
This section involves “living person” as a company or association or body of individuals , whether incorporated or not , but nothing herein contained shall affect any law for the time which is in force relating to transfer of property to or by companies , associations or bodies of individuals .
The description of the term of Transfer was given by a judge of Rangoon High Court .
What is property ?
The term ‘Property’ has been used in a broad sense .It is categorized into two parts – Movable and Immovable Property. Every thing which has interest and some monetary value is called as property.
• Property can be tangible or intangible.
The transfer of property can be made in the two following ways :-
First- Act of Parties
Second – By law
• When transfer of property act was not came into force the transfer of immovable properties in India were governed by the principles of English law and equity. And by the rules and acts which were passed by governor general in council .
• At that time , the law was full of complications.
• This Act was came into force on 1st July ,1882 and known as transfer of property Act.
Conditions Of a Valid Transfer –
• Transferor – Every person who is capable to contract by his own rational and is entitled to transfer the property or authorized to dispose off property is competent to transfer such property.
• Transferee– Every person who is competent to contract and is not disqualified by law can be transferred.
• Property must be transferred– every property is transferable. However there are certain exceptions under section 6 of Indian Contract Act, 1872.
Formalities of transfer –
For has to be made only by registered instrument. A registered instrument has to be attested at least by two persons or more who are parties to the transfer.
1. Attestation- it is an act of certifying this signature of the executant.
2. Registration – Registration is valuable evidence regarding the statements made in the document.
It is a document which is recorded for further official proceedings.
Persons Competent to transfer under Transfer of Property Act, 1882
Section 7 ( Person Competent to transfer)
Section 7 specify the concept of competency of persons who may be allowed to transfer property. As per this section, a person is capable to transfer property if he fulfills two conditions- They are –
- First condition is that the person must be competent to enter into contracts with other persons.
- And another vital point is that the person who is willing to transfer property must have title to the property or authority to transfer it if he is not the real owner of the Property.
Who is competent to transfer? The transfer must be –
1. Competent to Contract –
According to Section 11 of the Indian Contract Act , 1872 every person is competent to contract who has attend the age of majority. Under section 3 of the Indian Majority Act, 1875 a person attains majority at the age of 18 years and if guardian is appointed, he would attend majority at the age of 21.
2. Sound Mind –
Under section 12 of the Indian Contract Act, a person is of sound mind of the purpose of making contract is capable of Comprehending it and is able to ponder over the rights and benefits as to its effect upon his interest. A person who is of Unsound mind if he transfers a property it is void .
Persons who are disqualified to transfer are –
The following are disqualified to transfer- Convicts , Insolvent Person, Alien, Enemy. A transfer by a defective guardian of minors property is invalid and will be hit by section 11 of Hindu minority .
4. Transferor must be entitled to transferable property-
Authorised to dispose of transferable property not his own. One who is real owner of the property and property is free from hindrance is capable to transfer the same. An owner of the property may authorise his power of attorney holder to transfer the property for him and on his behalf.
Transfer must be take place as it is mentioned by the act, under section 9-
Section 9 of Transfer of Property says that for oral transfer, A Transfer of Property may be made without writing in every case in which a writing not expressly required by law.
Writing is required in case of following instruments-
• The Sale of immovable property whose value is more than rupees hundred or more than that .
• Lease of immovable property from year to year for a term exceeding one year or reserving a yearly rent.
• Simple mortgage irrespective of amount secured.
• Gift of immovable property.
• The person who is unborn ,when he /she takes birth shall be given absolute interest after reaching at the age of majority.
The transfer must not be contrary to the rule against perpetuity (Section 14)
Section 14 provides that confer of property cannot be postponed beyond the life of living person or minority of unborn person such transferred if made is called as void.
These are the essentials and required points for a person who is competent to transfer of property under section 7 of Transfer of Property Act, 1882. If these conditions are not fulfilled the transfer will not be considered as a valid one or can be declared as void. This condition is similar to that of a validity of a contract mentioned under the Indian Contract Act, 1872.
Author: Kajal Bind,
Prayag Vidhi Mahavidyalaya (Allahabad State University),2nd year