The Transfer of Property Act, 1882, is a cornerstone of Indian property law.

It governs the legal processes related to

the transfer of property rights between individuals, emphasizing transparency, legality, and enforceability. Sections 5
to 9 of the Act lay down the fundamental principles and conditions necessary for a valid transfer. Understanding
these provisions is essential for interpreting the legal framework that ensures fair and lawful property transactions.
Below is an in-depth analysis of the essentials of a valid transfer under these sections.

1. Introduction to the Transfer of Property Act, 1882

The Transfer of Property Act (TPA) was enacted to regulate the transfer of property and define the rights and
liabilities of parties involved in such transfers. The Act applies to immovable and, to some extent, movable property.
The objective is to establish clear principles for transferring ownership, mitigating disputes, and ensuring legal clarity.

Sections 5 to 9 are pivotal as they delineate the foundational aspects of property transfer. They deal with the
definition of transfer, who can transfer property, what property can be transferred, and the restrictions on certain
transfers.

2. Essentials of a Valid Transfer of Property

A valid transfer of property must satisfy certain fundamental criteria derived from Sections 5 to 9 of the Act. These
essentials are:

1. Existence of a Transferor and Transferee (Section 5)

2. Property Must Be Transferable (Section 6)

3. Competency of Parties (Section 7)

4. Transfer Must Be in a Prescribed Manner (Section 8)

5. Fulfillment of Conditions or Restrictions on Transfers (Section 9)

Each of these essentials is explained below in detail.

3. Section 5: Definition of Transfer of Property

Section 5 of the Transfer of Property Act talks about the definition of the word ‘Transfer of Property. In the lives of
humans, property holds a great amount of value, not only economically and physically but also emotionally.

Not only it gives a sense of economic value, but it also makes us feel settled and secure. But sometimes people need to
transfer these properties to someone due to whatever reasons like a deed of gift.

These issues of property are always advised to be dealt with under the supervision of legal consultation. This blog
talks about Section 5 of the Transfer of Property Act in detail. Analysis of Section 5 of the Transfer of Property Act

1.An act

 Transfer of Property is an activity or process in which the property is transferred from one person to another.
 This is done by the person who wants this Transfer of Property which is a voluntary action between the person
who wants the performance of this act.
 The Transfer of Property happens involuntarily in the case of will and inheritance.
 That’s why the word act is used because there is a process of action that is happening.

2. Living person
  In Section 5 of the Transfer of Property Act, the living person is described as any human being or a group of
human beings or a company, university, firm, trust, or the body of individual association of individuals who
wants to transfer property.
 The second part of Section 5 of the Transfer of Property Act says that the person who is transferring the
property, known as the transferor, should be competent to make a contract and has attended the age of
majority should be of sound mind.
 Court orders are considered as a living person, so they are not taken under the Transfer of Property Act.

3. Conveys

 Section 5 of the Transfer of Property Act conveys defined as an interest that is being transferred from one
person to another during the process of transfer of property.
 For example, if a person is transferring his property to another person, then the transferee does not have any
interest in the property of the transferor, but if the transferor makes an interest like a sale or gift, then the
transferee gets some interest in it.

4. In the present or the future

 A transfer of property, as per Section 5 of the Transfer of Property Act, talks about the period for the process
of transferring properties from one person to another.
 Section it is defined that the transfer of properties should happen for the present or for the futuristic purpose.
The Transfer of Property cannot happen in the past.

5. Property

 Section 5 of the Transfer of Property Act talks about the word property which is itself quite a broad term.
 Property, according to Section 5 of the Transfer of Property Act, can be anything from movable to immovable
property, from a car to the right of fishing in a pond.

6. To another living person

 Section 5 of the Transfer of Property Act says that there should be another living person to whom the property
should be transferred. This person can be anyone from a company to a University etc.
 The Transfer of Property can only be between two living persons.
 Property can also be transferred to the same person that is himself only as a condition when he is the only
trustee to which he is transferring the property.

Transfer of Property Act, 1882 not amounting to Transfer of Property

As the transfer of property’ means ‘conveying of property’, i.e., creation of new title or interest in the favour of the
transferee, if new title or interest has not created in favour of transferee , the property cannot be said to be conveyed,
thus no transfer of property.

1. Partition- As nothing new is obtained by a co-sharer on partition, it is not a transfer of property. His specific share, which
vested in him earlier, is simply separated.
2. – The only right created in a charge is a right to payment out of the property subjected to charge, thus it is not a transfer.
[Gobind Chandra v. Dwarka Nath, (1908) 35 Cal 837]
3. Relinquishment:—It is an extinction of a right and therefore, there is nothing left to transfer. Thus a relinquishment by a
reversioner of his reversionary interest does not amount to transfer (Barati Lal V. Salik Ram, 38 All 107). But if the
person in whose favour the ‘release’ is executed, gets certain rights by virtue of such release, the transaction may amount
to a transfer [Maniapp pillai v. Periasami, (1975) 1 MU 236].

4. Surrender.—It is not a transfer as it is the manager of a lesser estate with a greater one [Multhan Lal Saha v. Nagendra
Nath Adhikari, (1933) 60 Cal 379].
5. Easement.—The creation of an easement does not amount to a transfer.
 6. Will.—Because it operates from the death of the person making it, while the definition contemplates a transfer by a living
person, does not fall within the definition of transfer.
7. Compromise.—It may or may not amount to transfer. It depends on the facts and circumstances of each case. In Hussiaa
Banu v. Shivanarayan, AIR 1968 MP 307, it was held that where one of the parties to a settlement gives up a claim to
receive a certain sum of money from the other, in consideration of the latter’s given up the right to certain property
claimed by him, it would amount to a transfer.
8. Family arrangement/settlement.— A family settlement entered into by the parties for the purpose of putting an end to the
disputes among family members does not amount to transfer, not being an alienation it does not amount to the creation of
an interest.

What may be Transferred

Section 6—”Property of any kind may be transferred, except as otherwise provided by this Act, or by any other law
for the time being in force.”

This section enumerates different kinds of property which cannot be transferred (Exceptions to Section 6)—-

1. Spes Successionis [Section 6(a)]—“The chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.”

A mere possibility/chance/expectancy of an, heir succeeding to an estate is excluded from the category of transferable
property, e.g., A a Hindu, dies leaving a widow B and On two C. C has only a spes successionis, as his succession to
the estate is dependant on 2 factors, i.e., his surviving the widow B, and B leaving the property intact.

2. Right of Re-entry. [Section 6(b)] “A mere right of a re-entry for breach of a condition subsequent cannot be transferred
to anyone except the owner of the property affected thereby.

By a Mere given to right of re-entry meant a right to resume possession of-land which has been given to another
person for a certain time. It is usually inserted in lease empowering the lessor to re-enter up a breach of covenants in
the lease.

(a) A grants a lease of a plot of land for 5 years to B with the condition that B shall not dig a tank on the land. B digs
the tank. A relates to transfer C the right of re-entry for the breach of the condition committed by B. The transfer is
invalid.

(b) A grants a lease of plot for 5 years to B. Subsequently A transfers his right of re-entry at the expiry of 5 years to C.
The transfer is valid as at the expiry of lease the right of reentry is transferred along with the land to .

3. Easement [Section 6(c)]— “ An easement cannot be transferred apart from the dominant heritage.”

An easement B a right to use, or restrict the use of land of another in some way, for example, right of way, right of
water or light, etc. (Section 3 Easement Act). These right cannot be transferred without the property which has the
benefit of it.

4. Restricted Interest [Section 6(d)].—”An interest in property restricted in its enjoyment to the owner personally cannot
be transferred by him”

E.g., if a house is lent to a man for his personal use, he cannot transfer his right of enjoyment to another. Similarly a
religious office like those of mutawali of a wakf or of mahant of a math and emoluments attached to priestly office
cannot be transferred. ,

5. Maintenance [Section 6(dd)].—”A right to future maintenance, in whatsoever manner arising secured or determined,
cannot be transferred.”

A right to future maintenance is only for the personal benefit of the person to whom it is granted, thus it cannot be
transferred.
 6. Mere right to sue [Section 6(e)] —”A mere right to sue cannot be transferred.”

A right to sue is personal to the party aggrieved, as for, e.g., damages for the breach of contract or for tort, claims for
past mesne profit for suing an agent for accounts, for pre-emption, etc. These rights cannot be transferred. But where
the right to sue has merged in a decree, the right under the decree is assignable. Thus, a right to mesne profit or
damages under a decree is assignable.

7. Public office [Section 6(f)].—”A public office cannot be transferred, nor can the salary of a public officer, whether
before or after it has become payable.”

Thus prohibition is based on the ground of public policy as the public office is held for qualities personal to
incumbent.

If the office is not public, it would be transferable, even though the discharge of its duties should be indirectly
beneficial to the public.

8. Pensions [Section 6(g)—"Stipends allowed to military, naval, air force and civil pensioners of the government and
political pensions cannot be transferred, pension means a periodical allowances or stipend granted not in respect of any
right of office but on account of part services of particular merits. Section 60 of CPC also exempts a pension from
attachmet in execution of degree against the pension holder.
9. Nature of Interests [Section 6(N)]. —”No transfer can be made (1) in so far as it opposed to the nature of the interest
affected thereby, or (2) for an in so far unlawful object or consideration within the meaning of Section 23 of the Indian
Contract Act, 1872, or (3) to a person legally disqualified to be a transferee. “

This clause forbids the transfer of certain things which from their very nature are not transferable, e.g., res communes
(things of which no one in particular is the owner and may be used by all men), res nullius (things belonging to
nobody).Res extra commercium (things thrown out of commerce)

Again, any property otherwise transferable becomes non-transferable when the object or the consideration of the
transfer is unlawful (within. the meaning of Section 23, Indian Contract Act).

Lastly, a transfer cannot be made in favour of a person who is disqualified to be a transferee.

10. Un-transferable interests [S[Section 6(i)]��Nothing in this section shall be deemed to authorise a tenant having an
un transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue,
on the lessee of an estate, under the management of a court of wards to assign his interest such as such tenant farmer or
lessee.”

Persons Competent to Transfer

Section 7 of the Act provides that, “Every person competent to contract and entitled to transferable property, or
authorised to dispose of transferable property not his own, is competent to transfer such property, either wholly or in
part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and
prescribed by any law for the time being in force.”

Operation of Transfer

Section 8 of the Transfer of Property Act provides transfer of different kinds of property and their legal incidents. It
provides, “Unless different intention is expressed or necessarily implied, a transfer of property passes for with the
transferee all the interest which the transferor is then capable of passing in the property and in the legal incident
thereof.

Such incidents include where the property is land, the easement annexed thereto, the rent and profits thereof accruing
after the transfer and all things attached to the earth;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the
locks, keys, bars, doors, windows and all the other things provided for permanent use therewith; and, where the
property is a debt or other actionable claim, the securities therefor except where they are also for other debts or claims
not transferred to the transferee, but not arrears of interest accrued before the transfer;

and where the property is money or other property yielding income, the interest or income thereof accruing after the
transfer takes effect.”

Transfer by Persons before they Acquire the Interest

Section 6(a) of the Act provides certain things which are non-transferable (spes sucessionis). These are as follows—

 the chance of an heir-apparent succeeding to an estate,

 the chance of a relation obtaining a legacy on the death of a kinsman,
 any other mere possibility of a like nature.

(i) Chance of an Heir Apparent

Both Hindu and Muslim law forbids transfer of the expectancy. A mere possibility or expectancy of a heir succeeding
to an estate is excluded from the category of transferable property. Thus a Hindu reversioner has no right or interest. In
presents in the property which the female owner holds for her life, e.g.:

A dies leaving two widows and a reversionary heir B. The widows set-up a Will which authorised them to adopt a son.
B filed a suit challenging the validity of the Will and in order to raise money for the litigation transferred his share to
C. The court set-aside the Will. On the death of the widows B entered possession of A’s estate. C sued B but C’s suit
was dismissed as B, at the time of transfer, had spes successionis in A’s estate and, therefore, could not transfer it.

(ii) Chance of Legacy

The chance of a relation receiving a legacy is a possibility even more remote then the chance of succession of an heir,
and therefore, is not transferable.

(iii)Other Possibilities of Like Nature

Such possibilities which belongs to the same category as the chance of an heir apparent or the chance of a relation
obtaining a legacy, e.g. The possibility of winning a lottery or a prize in a certain competition cannot be transferred. A
good illustration of this category is the ‘next cast in a fisherman’s net’. No one can guarantee that any fish will be
caught, and the fisherman himself has no interest in the fish until they are caught in his net.

Transfer by Unauthorised Person (Doctrine of feeding empty grant by estoppel)

A person who has no title or interest in an immovable property, cannot transfer that property. Transfer by such person
is a transfer by unauthorised person. Section 43 of the Act provides the effect when such unauthorised person
subsequently acquires interest in property transferred.

Section 43. Transfer by unauthorised persons who subsequently acquires interest property transferred-where a person
fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to
transfer such property for consideration such transfer shall at the option of the transferee, operate on any interest
which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the
existence of the said option.

Illustration—A, a Hindu who has reported from his father B, sells to C three fields X, Y and Z representing that A
is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition,
but on B’s dying A as heir obtains Z, C not having rescinded the contract of sale, may require A to deliver Z to him.
The general rule of nemo dat quod non habet (no one can give to another, what he himself does not have) has been
relaxed through this section. The principle of this section is based partly on the English doctrine of estoppel by deed
and partly on the equitable doctrine that a person who has promised more than he can perform must make good his
promise when he acquires the power of performance.

For application of this section requisites must be satisfied—

 There must be fraudulent or erroneous representation of ownership by the transferor.

 Transfer must be by the wrong owner.
 Transferee must act on that false representation, in good faith.
 Transfer is for the consideration.
 Transfer subsequently acquires some interest in that property which he professed to transfer.
 The contract of transfer still subsists.

Subsequently acquired interest does not pass automatically to transferee but only when he claims the right in such
property.

The exception to this section (Second paragraph of Section 43) protects the rights of the record transferee in good faith
and for consideration who has no notice of the option in favour of the first transferee.

5. Section 7: Persons Competent to Transfer

Section 7 specifies that only a person who is legally competent and authorized can transfer property. The provision
states:

“Every person who is competent to contract and entitled to transferable property, or authorized to dispose of
transferable property not his own, is competent to transfer such property.”

Requirements:

1. Competency to Contract:

o The transferor must meet the criteria under Section 11 of the Indian Contract Act, 1872, i.e., they
must be of sound mind, not a minor, and not disqualified by law.

2. Entitlement to Property:

o The transferor must have a valid title or authorization to transfer the property.

3. Authorization:

o An agent or representative may transfer property on behalf of another, provided they have explicit
authorization.

Invalid Transfers:

 Transfers made by minors, individuals of unsound mind, or unauthorized agents are void ab initio.

 Case Law: Ram Gopal v. Tulshi Ram held that unauthorized transfers are invalid, and the transferee acquires
no legal rights.

6. Section 8: Operation of Transfer

Section 8 explains how a transfer operates and the rights and liabilities that arise from it.

Key Provisions:
  A transfer conveys all the legal incidents associated with the property unless specifically excluded.
Example: A transfer of land includes ownership of trees, buildings, and rights to water, minerals, etc., unless
stated otherwise.

 Legal Incidents:

o The transfer encompasses all rights and liabilities attached to the property, such as rents, profits, or
easements.

Practical Implications:

 The provision simplifies transactions by ensuring that ancillary rights automatically pass with the principal
property.

 Case Law: In Krishna v. Bhola Nath, the court ruled that the intention to transfer associated rights must be
clear from the transfer deed.

7. Section 9: Oral Transfers

Section 9 permits oral transfers in certain situations unless specific legal requirements mandate written
documentation. It states:

“A transfer of property may be made without writing in every case in which a writing is not expressly required by
law.”

Essentials of Oral Transfer:

 The transfer must meet all criteria of validity under Sections 5 to 8.

 For certain transfers like sales of immovable property exceeding ₹100, registration is mandatory under
Section 17 of the Registration Act, 1908.

Limitations:

 Oral transfers are invalid if the law mandates written documentation (e.g., sales, mortgages, and leases of
immovable property for over a year).

 Case Law: K.K. Adhikari v. A.P. Sreedharan illustrated that oral agreements must demonstrate clear intent and
fulfillment of conditions.

8. Other Relevant Considerations

Public Policy and Prohibited Transfers:

Transfers that violate public policy, involve illegal purposes, or harm third-party interests are void under the law.

Conditional Transfers:

Transfers may be subject to conditions precedent or subsequent. These conditions must be lawful, clear, and
enforceable.

Fraudulent Transfers:

Fraudulent or coercive transfers are voidable. The burden of proof lies on the party alleging fraud.

9. Conclusion
Sections 5 to 9 of the Transfer of Property Act, 1882, form the foundation for a valid transfer by establishing key
principles of competency, legality, and enforceability. They emphasize the importance of clarity, lawful intent, and
compliance with statutory requirements. By adhering to these essentials, the Act ensures that property transfers are
conducted transparently and protect the interests of all parties involved.

This framework continues to be instrumental in resolving disputes and shaping property law jurisprudence in India.