Introduction

• The Transfer of Property Act (TOPA) 1882 is codification of the manner in which an owner of property may exercise his right of ownership of property i.e., the right to transfer.
• It contains provisions for the transfer of both movable and immovable property, but a major portion of the enactment is applicable to the transfers of immovable properties only.
• This Act came into effect on 1^st July 1882.

Historical Background

• Prior to 1882 the property transfers in India were governed by the principles of English law and equity.
• In the absence of any specific statutory provisions the courts had to fall back upon English law on real properties and sometimes forcing the courts to decide the disputes according to their own notions of justice and fair play, resulting in confused and conflicting case laws.
• A law commission was appointed in England to remedy these confusions and conflicting case laws by preparing a Code of Substantive Law of Transfer of Properties in India.
• A draft Bill was prepared by this commission and was sent to India by the Secretary of State for India.
• The Bill was introduced in the Legislative Council in 1877. The bill was then referred to a select committee and it was sent to the Local Governments for their comments.
• The Bill pertaining to Transfer of Property Act was prepared not less than seven times before the final Bill was passed and it came into force as “THE TRANSFER OF PROPERTY ACT, 1882”.

Scope of the Act

• This is an act to amend the Law relating to the Transfer of Property by act of parties. The act therefore governs transfers inter vivos e., between living persons.
• The act does not take into consideration transactions by operation of law such as transfer of property by way of testamentary succession.
  • Where succession is governed by a testament or a will, it is called testamentary succession.
• This Act is not exhaustive and provides scope to apply the principles of justice, equity and good conscience.

Amendments Till Date

After the commencement of this Act certain amendments were made to it from time to time which are as follows:

• . In 1885, the Transfer of Property Act 1882 was amended to bring it in accordance with the Registration Act 1877.
• The Amending Act of 1900 excluded the government grants from the purview of the act and Chapter VIII of the Act was reshaped.
• By the Amending Act of 1904, local governments were authorized to apply the provisions of the act to certain agricultural leases.
  • Section 1, 59, 69, 107 and 117 were also amended.
• The Civil Procedure Code, 1908 provided that the laws relating to Mortgages will be governed by provisions of Civil Procedure Code, 1908.
• In the year 1915, minor changes were made to Section 69 of this Act.
• In the year 1920, changes were made to Section1 of this Act.
• By the Amending Act of 1925, certain changes were made in some provisions including Section 130.
• In the year 1926, definition of attested was added to Section 3 of this Act.
  • In the year 1927, the definition which was added by the Amendment Act of 1926 was given retrospective effect.
• In 1929, exhaustive modifications were made to the provisions of substantive law and significant changes were made to the provision of mortgages.
• In 2003, Section106 was substituted in place of the old provision.

Transfer of Property Act and Muhammadan Law

• Section 2 of the Transfer of Property Act states that nothing in the second Chapter of this Act containing Section 5 to 53A shall be deemed to affect any rule of Muhammadan Law.
• Section 129 of the Act states that nothing in the Chapter related to gifts made in contemplation of death shall be deemed to affect any rule of Muhammadan law.
  • Muhammadan law or Islamic law is known to be originated from the divine and not like the man-made laws that are passed by the lawmakers and are governed by the principles of modern systems of law.