This Article is written by Ankita negi & this article discuss the concepts of property, and introduction of transfer of property act.
Introduction
Everything around us whether it is tangible or in tangible which gives some value to the human
being and becomes the source of income is termed as property for example land, shares,
buildings. However, it is the basic meaning of property and in legal terms it is meant to be
different.
There are laws in every known legal system that address how people relate to one another
aboutmaterial possessions. However, the remarkably diverse array of property systems observed
in non-Western countries implies that any notion of property other than the descriptive one is
culturally specific. Property law must take into account the politics, family structure, and
economics of the society it is applied to because it deals with the distribution, utilization, and
transfer of wealth and wealth-related objects.
The word property in legal terms means a person which has legal rights. He has a right to
possess, right of exclusion, right to dispose the property, right to evaluate and moreover has a
right of an owner. It includes the proprietaries as well as personal rights of a person in his
property.
Types of Properties
- Corporeal and Incorporeal property- Corporeal property includes materialistic things
such as buildings, lands, jewelries and incorporeal property includes which are non-
materialistic things such as rights of easement and copyrights. - Movable and Immovable property- Movable property includes any corporeal property
which is immovable property and on the other side immovable property includes
anything which is attached to the land or which is fixed to the land. - Private and Public property- Private property includes those properties which is owned
by an individual having legal rights and public property includes those properties which
is run by the government and it is beneficiary to the public. - Real and Personal property- Real property includes which is recognized by law and
personal property are those properties which have all other proprietary rights whether it is
right in rem or in personam.
What is property tax?
Each and every person who owns a property is entitled to pay property tax. It is liable on the
tangible assets only. It is charged annually which is imposed on the property and is collected by
the local government or municipal corporation. It can be done through the online mode as well as
through the manual mode.
One of NDMC’s departments that collects taxes is the Property Tax Department. Property taxes
from roughly 13,500 private and public assets built before January 26, 1950, and service fees
from government properties built after that date are the two ways that revenue is generated.
Introduction of transfer of property act,1882
Property is very valuable in human lives, not just in terms of money and possessions but also in
terms of emotional value. It not only instills a sense of monetary worth but also provides us a
sense of stability and security. However, for various reasons, such as a gift deed, people
occasionally need to transfer these properties to another person. It is usually recommended to
handle these property-related matters under the guidance of legal counsel.
According to section 5 of the transfer of property act,1882 when a person transfers the property
to one or more persons is reviewed as transfer of property. For example- An owner of the car is
desiring to sell his car to the other person, the action of the owner will be considered as the
transferring of property. Property can be transferred by an individual as well as by the
companies. In this act the lessor is the one who transfers the property to the other individual who
is known as lessee.
Types of property transfer under the transfer of property act,1882-
- Sale- The sale deed is executed and filed with the district sub-registrar in accordance with
the Transfer of Property Act. The purchaser has certain privileges. Since the buyer now
has ownership rights, this transfer is “absolute” in nature and cannot be reclaimed or
maintained. - Lease- Section 105 of the Transfer of Property Act defines a lease as the temporary
transfer of real property for a predetermined sum of money, with the recipient agreeing to
the conditions of the agreement. - Mortgage- As per the definition provided in Section 58(a) of the Act, a mortgage is
defined as the transfer of an interest in particular immovable property with the aim of
safeguarding the repayment of money that has been advanced or will be advanced
through a loan, settling an outstanding debt, or fulfilling an engagement that could result
in a financial obligation. - Exchange- When two people decide to swap the ownership of one item for another
without using money to buy either or both of the items, this is called a “exchange.”
Exchange is defined under Section 118 of the Transfer of Property Act of 1882. Only the
exchange of immovable property is covered under this act. - Gift- Section 122 of the Act defines a gift as the voluntary and unrequired transfer of
certain existing moveable or immovable property from one person (referred to as the
donor) to another (referred to as the donee), accepted by or on behalf of the donee. - Actionable claim- Section 3 of the Transfer of Property Act states that any obligation that
isn’t backed by a mortgage, pledge, or hypothecation is considered an actionable claim.
Key elements of transfer of property act,1882 - Delivery of possession- It is important that the transferor must extend the property to the
transferee. It is essential for the validity of the transfer and to be legally recognized. - Capacity of transfer- The act designate that it is necessary for the transferor to have
mental stablility, attain the majority and should not be legally prohibited for transferring
the property. - Mode of transfer- The act specifies that mode of transfer should be sale, gift, mortgage
and lease. Other than these will not be examine as mode of transfer. - Registration of document- The act says that the transfer of property should be in proper
documents and registered with the significant authorities. - Performance of contract- Legally speaking, the transferor must abide by all conditions of
the sales agreement. It entails giving up custody of the goods, making any necessary
payments, and supplying any necessary documentation.
Section 58 of the transfer of property act,1882
Section 58 of the transfer of property act,1882 talks about the indubitable rights of the lessee.
Lessee’s claim to the leased property is unaffected in the event that the Lessor transfers the
property in the exercise of his legal right. In this case, the transferee would be in debt to the
Lessee. In the event that Lessor transfers the leased property without Lessee’s permission, Lessee
also has the right to pursue reimbursement from Lessor. The lessee is entitled to a transfer fee if
he is legally unable to use the leased property.
In order to obtain a loan secured by the property, the buyer must go through a complex process
called a mortgage on immovable property. To release the property from the mortgage, the person
who obtained the loan, known as the mortgagor, must pay the principle plus interest. This
procedure entails a great deal of legal documentation and is frequently regarded as a significant
financial choice that should be carefully considered. Before signing the loan agreement, it’s
crucial to comprehend its terms and circumstances because they could have a significant long-
term effect on one’s finances. A crucial financial instrument is a loan secured by property, and
it’s critical to comprehend the consequences before taking out one.
Case law
Cooper v. Cooper
Vera and Harold Cooper got married in 1993 and gave birth to two children. After
the legal separation there was a legal settlement which stated that Harold removed
tools and shop equipment, and Vera took the family’s car and house. Harold had
four policies and Vera was the beneficiary. The court granted them divorce.
Vera did second marriage and Harold married to Ira. After getting married to Ira,
Harold gave three policies beneficiary to Ira. And the fourth one was left to be
signed by the Vera.
But due to some medical complications Vera died.
Now, the question arises that is there anything that Vera and his kids are
interested in with the property?
Court’s judgement
At the time of Harold’s death, Vera had no interest in the policies because, according to the terms
of the divorce decree, Harold’s obligation to provide for her ended upon her remarriage, and the
children’s interest in their father’s estate is limited to the amount required for their support, as
determined by the decree’s provisions, before they become adults. This case highlighted the
section 35 of the transfer of property act,1882.
Conclusion
Property as a concept has existed since the dawn of human society. The idea of property has
undergone significant change over time. The idea’s jurisprudential component might be the cause
of this shift. Thus, Property as a concept has evolved unexpectedly from a single brick to the idea
underlying a product. Property law is a dynamic notion that will continue to change in the near
future due to the study being done in this area.
References
https://shodhganga.inflibnet.ac.in/bitstream/10603/31643/13/13_chapter%205.pdf
https://fklinknotes.wordpress.com/2019/01/17/objects-characteristics-features-of-transfer-of-
property-act-1882/
Saxena, P.P. (2017) Property law. Gurgaon, Haryana, India: LexisNexis.
