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Transferability of Immovable property Select Categ
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Introduction
Major sharma on
Transfer of a property can be made in two ways,
Removal of Public
firstly by an act of parties and secondly by law. Under
Nuisance: Section
the act of parties, Transfer of Property Act (TOPA)
133 of CrPC
exists, which gives us further divisions that is 
whether the property is movable or immovable, Rashmitha on
transfer for movable property and immovable General Defenses
property. In my research paper, I am going to focus In Torts
on immovable property. Immovable property is
Derick Kishore G
divided into six parts- sale, mortgage, actionable
on Inter-caste and
claims, lease, exchange, and gifts, charge.
Inter-religious

Transfer of property has been defined under Section Marriages

5 of the Transfer of Property Act. According to the shamsudeen o k

act immovable property does not include standing on Concept Of
timber, growing crops, or grass. Interpretation of the Waqf Under
section also allows us to construe the fact that Muslim Law
things that are attached to the land and which
andy on Concept
cannot be detached from the earth and things which
Of a Fair Trial
are permanently fixed to the earth also come within
the definition of immovable property. For example,
timber, since it is of no use until one takes it out of
the land or detaches it, it is useless therefore it is
CALENDAR
movable property.
There are six elements, which make a property JUNE 2019
transferable. The requirements to be met as per
Section 5 are four in number. M T W T F S S

1. The transfer must be by a living or juristic person.   1 2

A juristic person was defined in the case 3 4 5 6 7 8 9

Shiromanigurudwara Prabhakar committee, Amritsar
10111213141516
v. Sri Somnath Dass. In this case, the court said that
a juristic person can be an individual, firm, corporate 17181920212223

company, association, society, not including 24252627282930 

partnership firm. Any individual who can sue or be
« Apr    
sued under law would satisfy this requirement.

2. The transfer must be through a conveyance.

Conveyance can be present or future. However

TAGS
conveyance can take place only if there is a creation
of a new title. Therefore, there should have been  ADR
nothing with the transferee before the title. In  agency
addition to this, the term future is used to define the  article 19
future interest in the property and not the future  article 21
property itself. Therefore, the word future property  Competition
itself must be transferred. Therefore, the word future  constitution
is for the conveyance.  constitutional

law  Constitution
3. Thirdly, the property itself must be transferred.
of India

4. Fourthly, it must be made to a living or a juristic  contract

person.  contracts

 criminal law
Any kind immovable property can be transferred. Any
 death penalty
kind of immovable property can be transferred other
than that which are given in Section 6 of the TOPA. In  divorce

the case Samsudden v. Abdul Husen it was held that  education

the chance to transfer couldn’t be transferred. The  fair trial


right to re-entry, easement can’t be transferred.  Fundamental

Specific rights cannot be transferred, as there are Rights  hindu

only certain people who should enjoy the right. The law  Human

right to sue, public office, unlawful objects cannot be Rights  India

transferred.  indian

constitution
The third element is competency as under Section 7
 Indian Contract
of TOPA. The individual must not be a minor or an 
Act  Indian
insane person. The person must have the title of
Evidence Act
property or the person must have the authority to
 Indian penal
transfer; in part or in whole, as held in the case
code
Krishna Khurhai v. Grindlays bank, if transfer is made
 international law
ultra virus to the authority vested in the agent, the
 IPC  IPR
transfer will be void.
 judicial activism

The fourth element being that under Section 6(h)(3)  jurisprudence

the person must not be a legally disqualified  law

transferee. For example under Section 136 of TOPA  marriage

judges, legal practitioners and officers connected to  Muslim Law

the court are disqualified from purchasing actionable  patent

claims.  Private

International Law
The fifth element being that a valid transfer can also  Property
happen under Section 9 of TOPA as an oral transfer.  Property Law

 rape  Right
Transfer of immovable property may happen only in
to information
certain ways. They can either be through sale,
 rule of law
mortgagee, lease, and gifts or through actionable
 Sovereign
claims. These are modes of transfer.
1. Sale-  special marriage

Contract of sale of immovable property is act  Tort Law

basically a contract, which states terms for the  Transfer Of


permanent transfer of property. The sale takes Property Act

place in accordance to the terms, which are  uniform civil

settled by both the parties in the contract itself. code  USA

Such contract of sale does not create any  WOMEN

interest in or charge on such immovable

property. A kind of obligation is created in
respect of the ownership of the property.
Looking for 
Essentials of a contract of sale are several. The
Legal Help?
parties to the transfer or the vendor should be
Fields marked
competent enough to contract under Section 2
with an * are
of the Indian Contract Act. Price is another
required
essential ingredient for all transactions of sale
and in the absence of thisprice, which Name *
constitutes consideration, the transfer will not
be regarded as a contract of sale.
Delivery of property is necessary for a transfer Email*
by way of sale. In case of tangible property
worth less than Rupees one hundred, the
transfer can be made by a registered Phone *
instrument or putting the purchaser in
possession of the property. If it is more than State *
rupees one hundred then the instrument has to
be registered under Registration Act, 1908. 
Andhra Prades
There are certain rights and duties of the buyer
and the seller, which are subject to the
Budget *
contract. These rights and duties are governed
 under Section 55 of the Transfer of Property
1500-5000 
Act.

Type of

2. Mortgage-
Assistance *
Transfer of immovable property can also take
place through mortgage. Section 58(a) of the Drafting of
Documents
TOPA says, a mortgage i the transfer of an
Due
interest in specific immovable property for the
Diligence
purpose of securing the payment of money
Advisory
advanced or to be advanced by way of loan, an 
existing or future deist, or the performance of Regulatory
Applications
an engagement which may give rise to a
Dispute
pecuniary liability. Ingredients of mortgage; in a
Resolution
mortgage, the mortgagor transfers any one of
Others
his interests in specified immovable property
to the mortgagee. Money to be advanced by
way of loan arises in the case of a running Query /
account between the parties. Future debt is a
Background
contingent liability, which arises on the
happening of some contingency. If the promise
is  not completed, an obligation to pay arises.
These may be a pecuniary liability.
An undertaking i.e., a person borrowing money
not to alienate his property until the money is
300 of 300 Word(s)
repaid is not a mortgage, because there is no left
transfer of interest in the property.

SUBMIT
3. Charge-
Transfer of immovable property can also take
 place through charge.  According to Section
100 when a person by the act of parties or
operation of law creates security for the

payment of money to another, and the
transaction should not be a mortgagee, the
latter is said to have a charge on the property.
The charge is created by operation of law, this
distinguishes mortgage, which is created by
act of parties.


4. Lease-
Transfer of immovable property can also take
place though lease. Section 105 defines lease.
According to it, lease of immovable property is
a transfer of a right to enjoy such property,
made for a certain time, express or implied or
in perpetuity in consideration of a price paid or
promised, or of money, share of crops, service
or any other thing of value, to be rendered
periodically or on specified occasions to the
transferor by the transferee, who accepts the
transfer on such terms.

5. Transfer can also take place through exchange,

gifts and actionable claims.

6. Other ways-
Immovable property can also be transferred by way
of law that is if there is insolvency, succession or the
absence of a will. In the situation of the absence of a

will, the court shall declare the transfer of property
by way of interstate.

However, there are some things that cannot be

transferred. Section 6 of the Transfer of Property Act
discusses the immovable properties, which cannot
be transferred. Spec successions cannot be
transferred. According to Section 6 (a), it is void. In 
the case Annada Mohan Roy v. Gom Mohan Mullick,
the appellant purchased the rights expectant upon
the termination of the surviving widow’s rights from
the respondents and further on there was a
compromise between the widow and the
respondents as a result of which the respondents
got certain properties. Thus it was held in the case
that compromise is void and cannot be transferred.

In the case Karpagathachi v. Nagarathinathachi, two-

widows had divided the husband’s property into two
shares and took possession of respective shares.
Under the partition deed, each widow gave up her life
interest. When one of the widows died her daughter
took over the possession. The other widow filed a
suit against the daughter claiming for the share,
which is in possession of the daughter of the other
widow. The court held that each widow transfers her
right of survivorship according to Section 6(a) of
Transfer of Property Act.
Charge cannot be transferred because it is a right,
which is a part of the property. Compromise cannot
be transferred. Easement cannot be transferred

because these are the rights or interest arising of
land, which is a part of the property but cannot be
transferred. Family arrangement may be transferred.
A will cannot be transferred because it does not
operate by the act of parties. Auction sale cannot be
transferred because property is in possession of
another.

  Are benefits arising out of land immovable? Yes,
benefits like crops from your land, fish and the lake
and anything 12nm from the mainland are
immovable and can be transferred. In the case
Anand Bahera v. State of Orissa, it was held that
profit arising out of land is immovable property. The
right to walk on the land and to draw fish from the
lake and taking it away is immovable property as it is
the profit arising of the land. Grazing of cattle on the
land is also immovable property as it is profit arising
of the land.

Conclusion
Therefore for a property to be transferable several
conditions need to be satisfied. These include that of
constituting a transfer; it to come within the
definition of immovable property and it should not be
amongst those items, which may not be transferred
under Section 6 of the Transfer of Property Act. In
addition to this, it is clear that there are several kinds
of transfer that may take place. Each kind of transfer
as has been explained has different procedures and

conditions, which need to be satisfied. These are
hence the various elements that are required to be
transferred for a property to be transferable.

Formatted on 19th February 2019.

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 Property Law ,  immovable property ,

juristic person. , mortgage , transfer ,

Transfer Of Property Act ,


Immovable property”

Musharraf H Khan says:

January 13, 2017 at 5:12 am

Very very useful…thanks a lot…

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