Modes of transfer of property under Transfer of Property Act,1882

In this article we are providing you various Modes of transfer of property under Transfer of Property Act,also 1882 also Kinds of transfer of property under Transfer of Property Act, 1882, types of transfer of property

Modes of transfer of property under Transfer of Property Act,1882

In India, the Transfer of Property Act,1882 regulates the transfer of property. The Transfer of Property Act,1882 came into force on 1st July 1882. The main object of the Act is to bring the transfer of property between living person under rules and regulation. Here “living person” includes “companies, private associations. Section 5 of the transfer of property act defines the term transfer of property. it means the property shall be given by the living person to one or more other living people at the present date or in future time or only to himself.

Modes of transfer of property

  1. Mortgage
  2. Sale
  3. Lease
  4. Gift
  5. Exchange

1) Mortgage

– Mortgage is defined under Sec.58(a) of the Act. A mortgage is a ” transfer of an interest” in some immovable property for securing the repayment of money of loan.

Parties – 1) Mortgagor – Transferor is called mortgagor in this transaction.

                    2) Mortgagee – Transferee is called as Mortgagee.

                   3) Mortgage Money – Principal money & interest of which is payment is secured in such transaction.

                   4) Mortgage Deed – is the instrument by which transaction is effected.

Essentials – i) transfer of an interest

                         ii) specific immovable property

                        iii) purpose of securing payment of debt.

How effected –  Except for the mortgage by deposit of title deeds, all other forms of mortgage must be made through a registered instrument if the sum assured is 100 or more. A simple mortgage is effected only by registered documents even if the sum is less than 100. When registration is necessary it must be in writing, attested by at least two competent persons, signed by mortgagor & registered according to provisions of Registration Act.

Types – 1) Simple Mortgage

                  2) Mortgage by Conditional Sale

                  3) Usufructuary Mortgage

                  4) English Mortgage

                 5) Mortgage by deposit of title deeds

                6) Anomalous Mortgage

2) Sale

Sale is defined under Sec. 54 of the Act. The rights, as well as liabilities of buyer and seller, are also mentioned in Sec.55 of the Act. Sale is a “transfer of ownership” for consideration or for the price paid by the buyer of that property.

When the value of such tangible immovable property is not more than a hundred rupees transfer may be done either by a registered instrument or by delivery of property. On the other hand when the value of such immovable property is more than a hundred rupees then transfer has to be made only by a registered instrument. 

Contract for sale – It is a contract in which terms & conditions are mentioned between the parties, According to which such transfer of immovable property will happen in the future at the time & place decided as per contract. Such a contract for sale does not create any charge, title, interest in such property.

The main difference between sale & contract for sale is in sale transfer takes place immediately & in the contract for sale transfer of immovable property takes place at a later stage or in the future. Also in sale, the buyer gets possession, title in the property as soon as the transaction is completed.

Modes of transfer of property

3) Lease

Lease is defined under Sec.105 of the Act. In a contract of lease, there is “transfer of right ” to enjoy the particular immovable property for a certain time or in perpetuity for consideration in price which is paid or promised & instead of the price it may be a share of crops, any service to be provided periodically or on occasion, as specified between parties.

Parties to the Contract of Lease –

1) Lessor – Lessor means the transferor. (of right to enjoy property to lessee)

2) Lessee – Lessee means the tranferee.

3) Price – The price in case of lease, means the premium.

4) Rent – Rent in context of lease means money, share, service or any other thing to be so rendered .

Duration of a lease for which no period is specified in the contract is for agriculture & manufacturing purpose, is deemed to be a lease for the year to year which can be terminated by either of the parties on giving a six-month notice. For any other purpose, such period is month to month which can also be terminated by either of the parties on fifteen days notice. (Sec.106)

The contract of lease for a period of the year to year or exceeding one year is to be effected only by a registered instrument and all other lease contracts can be effected by a registered instrument or even by oral agreement alongwith delivery of possession.(Sec.107)

Modes of determination of lease – (sec.107)

1) by efflux of time

2) on happening of some event

3) termination of interest of lessor in such property

4) when interests of lessor & lessee become vested in one person in same right

5) by express surrender

6) by implied surrender

7) by forfeiture i.e.when lessee breaches any express condition.

8) on expiration of notice to terminate the contract of lease by either  party.

4) Gift

The gift is defined under Sec.122 of Act. A gift means the transfer of certain existing moveable or immoveable property made voluntarily which is without any consideration.

Parties –   Donor- (transferor) who transfers such property in gift.

                    Donee – who accepts or on his behalf accepts  such property in gift from donor(transferor).

It is essential that such acceptance by donee must be made during the lifetime of the donor.

 The gift is void,  if the donee dies before acceptance of such gift.

5) Exchange

Exchange is defined under Sec.118 of the Act.  When two persons mutually transfer the ownership of one property for the ownership of another property, such a transaction is called an exchange.

But a transfer of ownership of the money in return of money is called an exchange. It cannot be called a transaction of sale. In the transaction of exchange, the subject matter i.e.properties need not be immovable.

How Effected – For transfer by way of transaction of exchange has same rules & formalities applicable of sale.

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