RESEARCH PROJECT ON

Transfer of property act

defined section: 5

SUBMITTED TO

In Fulfillment of the Requirements for Internal Component in

PROPERTY LAW- I
By

KEERTHINESAN.S

(Reg. No. BC0140030)

UNDER THE GUIDANCE & SUPERVISION OF

Prof. Mr. MOHAMMED AZAAD

 Declaration

I, S. Keerthi nesan do hereby declare that the project entitled Transfer

of property act section: 5 submitted to Tamil Nadu National law school in
partial fulfillment of requirement of award of degree in undergraduate in
law is a record of original work done by me under the supervision and
guidance of Professor. Mr. MOHAMMED AZAAD department of

PROPERTY LAW, Tamil Nadu National law school and has not formed
basis for award of any degree or diploma or fellowship or any other title to
any candidate of any university.

S.Keerthinesan.
B.Com.,LL.B
( Hons )
 Certificate

This is to certify that the project entitled submitted to Tamil Nadu

National law school in partial fulfillment of requirement of award of
degree of under graduate in Law done by KEERTHI NESAN .S under the
supervision and guidance of Professor Mr. MOHAMMED AZAAD,

department of PROPERTY LAW ,Tamil Nadu National Law School.

Prof. Mr. MOHAMMED AZAAD ( )

Place : Tiruchirappalli

ACKNOWLEDGEMENTS
At the outset, I take this opportunity to thank my Professor Mr.
MOHAMMED AZAAD from the bottom of my heart who has been of
immense help during moments of anxiety and torpidity while the project
was taking its crucial shape. Secondly, I convey my deepest regards to the
Vice Chancellor Prof. Arun Roy and the administrative staff of TNNLS
who held the project in high esteem by providing reliable information in
the form of library infrastructure and database connections in times of
need. Thirdly, the contribution made by my parents and friends by
foregoing their precious time is unforgettable and highly solicited. Their
valuable advice and timely supervision paved the way for the successful
completion of this project. Finally, I thank the Almighty who gave me the
courage and stamina to confront all hurdles during the making of this
project. Words arent sufficient to acknowledge the tremendous
contributions of various people involved in this project, as I know Words
are Poor Comforters. I once again wholeheartedly and earnestly thank all
the people who were involved directly or indirectly during this project
making which helped me to come out with flying colors.

Table of Contents
Topic Covered Page Number
Case Table

Abbreviations

The Transfer of Property Act, 1882. Section 5

Introduction

Living Persons

In Present of In Future

To Himself

Family Settlement

Compromise

Partition

Surrender

Release

Relinquishment

Charge

Bibliography

Table of Cases:
Abbas Bandi Bibi v. Muhammad Raza
Ashrafi Devi v. Prem Chand
Atrabanessa Bibi v. Safutullaah Mia
Balkrishna v. Raghunath
Bansigopal v. V.K. Banerji
Bhupati Nath v. Ram Lal
Chanaderwati v. Lakhmi Chand
Gobinf v. Dwarkanath
Gurcharan Ram v. Tejwant Singh
Indoji Jethaji v. Kothapalli
Jones v. Skinner
Jugalkishore v. Rao Cotton Co.
Kalka v. Jaswant
Krishna Kumar Khemka v. Grindlays Bank PLC
Kuppuswami Chettiar v. Arumugam
M. Krishna Rao v. M.L. Narasikha Rao
Ma Kyin Hone v. Ong Boon Hock
Makkan Lal Saha v. Nagendranath Adhikari

Abbreviations
AIR All India Reporter
All Allahabad High Court
AP Andhra Pradesh
Bom. Bombay High Court
Cal. Calcutta High Court
CJ. Chief Justice
Guj. LR Gujarat Law Reporter
Ibid. Ibidem
Ins. Inserted
J. Justice
LJ Ch. Law Journal, Chancery
Mad. Madras High Court
MLJ Madras Law Journal
Nag. Nagpur High Court
P&H Punjab & Haryana
PC Privy Council
SC Supreme Court of India
SCR Supreme Court Reporter

The Transfer of Property Act, 1882. Section 5.

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, or to himself
and one or more living persons and to transfer property is to perform such act. 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.

Introduction:
The word transfer is defined with the reference to the word convey.1 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 vivo. The word conveys in
Section 5 of the Indian Act is used. Transferor must have an interest in the property. He cannot
sever himself from it and yet convey it. A lease comes within the meaning of the word transfer.
The words living person exclude transfers by Wills and the Will only operates after, where by 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 sense.2 Section 6 says that property of any kind may be
transferred, etc. Thus an actionable claim is property; 3 and so is a right to a re-conveyance of
land.4 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 Lansdale said it is the

1 In Ma Kyin Hone v. Ong Boon Hock, See Mulla, The Transfer of Property Act, 9th Ed., LexisNexis
Butterworths, 2004, p. 73.
Kr ishna Kumar Khemka v. Grindlays Bank PLC, AIR 1991 SC 899.

2 Bansigopal v. V.K. Banerji, AIR 1949 All. 433.

3 Rudra Perkash v. Krishna, (1887) 14 Cal. 241, 244.

4 Narasingarji v. Panaganti, AIR 1921 Mad. 498.

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.5 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 Siddhartha v. Commissioner of Income Tax,6 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.

OBJECTIVE:

The objectives of the researcher is to understand principal to underlining section 5, to understand

the transfer of property defined.

RESEARCH QUESTION:

1. What are the essentials of a valid transfer of property?

2. What are the conditions rights to fulfill, what makes as false the transfer?

RESEARCH METHODOLOGY:

The research methodology which is adopted in this project is doctrine. The sources which are
used for this project are primary source like statute and secondary source like books. The
researcher in this project mainly revolution for the conditional transfer of property.
5 6 AIR 1937 Rang. 47.

6 AIR 1986 SC 368.

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 use d 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. The explanation to the section further
includes in the phrase a company or association or body or individuals whether incorporated or
not. So does also person according to the General. Clauses Act, 1897. 7 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.8 Where property was acquired by or
transferred in favor of Secretary of unregistered Society, Secretary of unregistered Society has no
legal status to hold or acquire the property in question because Secretary of unregistered Society
cannot come within the definition of living person within the meaning of Section 5 of the Act. 9
As such the application by members of club claiming right of pre-emption on ground of transfer
of adjoining land was not maintainable. A deity is not included in the definition of person in
Section 5 of the Act. If a deity is not a person, the provisions of the Act including Section 3 do
not govern a transfer of property made in favor of a deity. An idol is a juristic person capable of
holding property, 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
7 Vakil, Darashaw J, Commentaries on the Transfer of Property Act, 2nd Ed., Wadhwa and Company
Nagpur, New Delhi, 2004. p. 93.

8 Section 13 reads Transfer for benefit of unborn person. Where, on transfer of property, an
interestunless it extends to the whole of the remaining interest of the transferor in the property.

9 Usha Rani Kundu v. Agradut Sangha and other, AIR 2006 (NOC) 911 Cal.
by a registered instrument Under Section 123 of the Act. Also it is said that an idol is only the
symbol of the Deity and that it would be contrary to the Hindu religion that a deity makes an
acceptance of Worldly goods10 as in the case below.
In Bhupati Nath v. Ram Lal,11 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 favor of the Gods for in the case of deities
there cannot be any acceptance and therefore necessarily any gift. 12 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 Act, 13 made voluntarily and without
consideration, by one person, called the donor, to another, and accepted by or on the behalf of the
done, acceptance when to be made. Such acceptance must be made during the lifetime of the
donor and while he is still capable of giving. If the done dies before acceptance, the gift is void. 14
Section 123 reads Transfer how effected. For the purpose of making a gift of immovable
property, the transfer must be effected by registered instrument signed by or on behalf of the
donor, and attested by at least two witnesses. For the purpose of making a gift of movable
property, the transfer may be effected either by a registered instrument signed as aforesaid or by
delivery. Such delivery may be made in the same way as goods sold may be delivered.

In Present or in Future:

10 Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p. 81.

11 (1910) 37 Cal. 128.

12 Narasimha v. Venkatalingum, (1927) Mad. 687.

13 Raghubar Singh v. Jai Indira Bahadur Singh, AIR 1919 PC 55.

14
The words in Present or 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
ReMahomed Hasham & Co., in holding that Section 5 did not apply to the Presidency Town
Insolvency Act, observed: it is not absolutely sure what the words in presenter in future refer to.

In Shumsuddin v. Abdul Husein,15 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.16 A transfer of property may take place not only in present, but
also in the future,17 but the property must be in existence. The words 18
in present or in future
qualify the word conveys, and not the word property.19 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 existence.20 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 fulfillment of certain conditions.

15 (1907) 31 Bom. 165.

16 Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2nd Ed., Wadhwa and Company
Nagpur, New Delhi, 2004. p. 95.

17 Sumsuddin v. Abdul Husein, (1907) 31 Bom. 165, 172.

18 (1922) 24 Bom. LR 861.

19 Jugalkishore v. Rao Cotton Co, AIR 1955 SC 376.

20 Mohendra v. Kali, (1903) Cal. 265, 274.

Illustrations :
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.

A transfers his property to B for life and then to C. The transfer in favor of B is present (although
he gets only life-interest) but the transfer in favor 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 Myerson makes any
settlement of his property in a trust and appoints himself as the sole trustee. Here, the transferor
and the transferee are physically the same person but as transferor he has the legal status of
settler 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 property.21 Family Settlement22 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.

21 Sinha, Dr.R.K., The Transfer of Property Act, 11th Ed., Central Law Agency, Allahabad, 2010, p. 54.

22 35 Naranbhai v. Suleman, (1975) 16 Guj. LR 289.

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 member. In Sadhu
Madho Das v. Pandit Mukund Ram, 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 is. In Ramdeo Foods Products Pvt. Ltd. v.
Arvindbhai Rambhai Patel, 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
succession.23 In a family settlement since there is no creation of new title or interest in favor of
any member, there is no conveyance, therefore, it is not a transfer of property.

Compromise:
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 defined. 24
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.25 In other words compromise is not a
transfer of property. Compromise means agreement for the settlement 26 of doubtful claims

23 Zaheda Begum v. Lal Ahmed Khan, AIR 2010 AP 1.

24 Balkrishna v. Raghunath, AIR 1951 Nag. 171.

25 Reddiar, MP v. A. Ammal, AIR 1971 Nag. 182.

26 37 Tek Bahadur v. Devi Singh, AIR 1966 SC 292.

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
them.27 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 exchange. 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 enjoyment. 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 necessary. 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 another.

In Mohar Singh v. Devi Charan, The Supreme Court explained the legal nature of a partition in
the following words:
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 Mia, 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.
Poplai, Gajendragadkar,28CJ., 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
27 Abbas Bandi Bibi v. Muhammad Raza, AIR 1929 Oudh 193.

28 Mulla, The Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004, p. 76.
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 required to be duly stamped and properly
registered. 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 sons.29
Surrender:
Surrender is not a transfer of property as defined in the section. 30 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 favor of the
landlord. Thus surrender by a tenant to the landlord or by a widow to the reversioners 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 enlarged31 then, for the holder of the smaller interest there is creation of a new

29 Gurcharan Ram v. Tejwant Singh, AIR 2008 NOC 1650 P&H.

30 Makkan Lal Saha v. Nagendranath Adhikari, (1933) 60 Cal. 379; AIR 1933 Cal. 467.

31 Vincent Lourdhenathan v. Josphine Syla Dominque, AIR 2008 NOC 1173 Mad.
title or interest. Since some new titles or interest are added to transfer of property. Where a
person in whose favor the release is executed gets rights by virtue of the release, the deed
amounts to transfer. In Muniappa Pillai v. Periasami, after taking some money A executed a
deed transferring his right, title and interest in his half share of the property absolutely in favor
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.
Charge:
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.

Conclusion:
Therefore the researcher explains the transfer of property definition under section 5 of the
transfer of property act. And the legislature used for the transfer and the rights or interests in a
property, the valid and invalid transfer of the property and the conditions used to fulfill a transfer
such as the persons who can transfer like living person. Also the researcher describes the
partition, surrender and the charge of a property.

Bibliography

Mulla, the Transfer of Property Act, 9th Ed., LexisNexis Butterworths, 2004.
Nandi, N., the Transfer of Property Act, 1882, 2nd Ed., Dwivedi Law
Agency, Allahabad, 2010.
Row, Sanjiva, The Transfer of Property Act, 4th Ed., Vol. 1, The Law Book
Company (P) Ltd., Allahabad, 1989.
Sinha, Dr. R.K., the Transfer of Property Act, 11th Ed., Central Law Agency,
Allahabad, 2010.
 The Transfer of Property Act, 1882, Bare Act, Universal Law Publishing Co.
Pvt. Ltd., New Delhi, 2010.
Vakil, Darashaw J., Commentaries on the Transfer of Property Act, 2nd Ed.,
Wadhwa and Company Nagpur, New Delhi, 2004.
www.legal transfer of property act.in
www.consumeradvice.in
www.legalserviceindia.com