Transfer of property

Section 5 of the Transfer of Property Act, 1882 defines transfer of property as 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 other living persons. To transfer property is to perform such an act. Living person includes a company or association or body of individuals, whether incorporated or not. The definition therefore covers only transfers between living persons, called transfers inter vivos.

The elements are a conveyance, of existing property, by a living person, to a living person, operating now or in future. Transfers by will are outside the Act because a will operates only on death. Under Section 2(d), save as provided by Section 57 and Chapter IV, the Act does not affect transfers by operation of law or by or in execution of a court decree, such as succession on intestacy or a court auction. A transfer may be made to the transferor himself, as when he settles property on himself and others.

Sections 6 and 7 fix what may be transferred and by whom. Property of any kind may be transferred except as provided, and Section 6 excludes, among others, the chance of an heir apparent succeeding to an estate, a mere right of re-entry, an easement apart from the dominant heritage, a right to future maintenance, a mere right to sue, a public office and the salary of a public officer, and pensions. Under Section 7, a person competent to contract and entitled to transferable property, or authorised to dispose of it, is competent to transfer. Section 9 allows oral transfer wherever writing is not expressly required by law.

The definition must be read with the modes of transfer the Act regulates: sale, mortgage, lease, exchange, gift and actionable claims. An agreement to sell is not itself a transfer; in Shakeel Ahmed v. Syed Akhlaq Hussain (2023) the Supreme Court held that no title to immovable property passes under an unregistered agreement to sell or general power of attorney. Examiners test the living person requirement, transfers to oneself, and the list in Section 6.