What will amount to "Transfer of Property" in India ?

 

Source:TheFactFactor

Section 5 of the Transfer of Property Act

"Transfer of property" means an act of conveying the property by a living person to another living person/persons or to himself in present or future.
A living person includes any:

1. Company

2. Association

3. Body of individual

(Nothing herein contained shall affect any prevailing law)

V. N. Sarin vs Major Ajit Kumar Poplai[1] 

The court has to decide whether the partition of coparcenary property amounts to transfer u/s 5 of the following Transfer of Property Act.

There is a joint family, comprised of a father and his 2 sons. The property in question is a bungalow. The property is partitioned into 3 parts. there are 3 coparceners. after the partitioner each coparcener is getting 1/3rd of the property. The portion which one son A got was already rented out to T. And A filed a suit for eviction against the tenant T. T has acquired this property through a transfer and as per u/s 14(6) of the Delhi Rent Control, 1958 if any premises a tenant is already living and meanwhile the property is transferred, then for the next 5 years the owner cannot evict the tenant. The suit of eviction is pre-mature, as this suit can be filed only after 5 years.

All the courts gave the uniform judgement from the tribunal to the Supreme Court, that partition of coparcenary property does not amount to transfer. The joint family members (all the coparceners) were enjoying the property rights and had an interest in the property beforehand. The division of coparcenary property is the division of rights among the coparceners, collectively into individual or specific rights.

N. Ramaiah vs Nagaraj S. And Another[2] 

Whether the execution of the will would amount to transfer of property u/s 5 of the following Transfer of Property Act. 

A person 'A' died leaving behind wife 'W' and nephew 'N'. N goes to the court that A had transferred the property through will in my name and hence N should get the property. Whereas W is contesting that N has the forged document. W is claiming that A was having desire that A's property shall go to W. The property is currently in the possession of W. To which N is in fear that W might alienate that particular property and hence seeking an injunction on that particular property unless the case is decided on merit. The injunction was granted by the court.

After 6 months of the grant of an injunction, W prepares another will of transferring the property in name of B and due to ill health she dies. To which B approach the court, seeking the right that his name shall be substituted in place of W in the case. To which N is objecting on the ground that W was directed by the court that transfer shall not be made during injunction.

Section 5 of the transfer of property act, means by which a living person conveys property to another living person in present or future.

The court said that when a person makes a will, he is preparing a testamentary document and it does not amount to transfer of property. This nether change the title not possession in regard to the property. To treat a device will as a transfer of property is contrary to the participle of transfer of property. And the court passes the judgement in favour of N.

Also read - Claiming Adverse Possession? Read all the essential things you need to know

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[1] 1966 AIR 432

[2] AIR 2001 Kant 395