“under the transfer of property act, property can be either transferred absolutely or conditionally’’
Introduction
Property transfer act is an act passed by the law where solution to property related queries are written. We very often make mistakes by thinking most of the time considering the term sale, transfer, exchange, lease, mortgage and charge all are same. But, all these are have different meaning from each other where each and every one differs from other terms.
The Transfer of Property Act, 1882 is the act that we follow in property related problems. In this act mentioned specifically about the different ways of transfer an immovable property. According to the Act, ‘transfer of property’ means an act by which a person conveys property to one or more persons, or himself and one or more other persons. The act of transfer may be done in present or for future. The person may include an individual, company or association or body of individuals, and any kind of property may be transferred. (1). A transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, unless a different intention is expressed or implied. (2). In a property act a transferor has to have the right to transfer the property. Which means the person who is going to transfer the property has to have the eligibility to transfer. To transfer an immovable property which means a land in that case both a parties eligible make the contract has to be checked otherwise the whole contract will be void.
When it comes to transfer of property then different things as is the property movable or immovable is it for the future or for the present need to check. Property owner’s authorization to transfer of the property need to be kept on mind otherwise a person who is not the owner of the land cannot sell them to other person. (3) When the transferor is eligible for the contract then the transferor can transfer the property to transferee either absolutely or conditionally. Here absolutely means the transfer of the property will be transfer wholly or partly with a condition to fulfill.
What is transfer of property?
Transfer of Property act sec.5 says:-
Transfer of property means 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; and “to transfer property” is to perform such act. In this section “living person” includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. (4).
By this act of property we can say in easy way is that a property transfer means to transfer the ownership of the property from one person to another where the transferee can be organization, companies, individuals etc. when making the contract we need to be sure of the fact that both the
In transferring the property the transferor and the transferee have to agree upon the same contract to be a legal contract according to the law. Property can be movable or immovable but for the property act immovable property which is land is more prefer. When a land is unregistered it needs to be transfer by deed and the register at lr. When a land is a registered land in that case to transfer the land it should follow the step as transferred by the land registry transfer and registered. (5). According to the law some property can be transferred and some cannot so we need to sort out the property in transferring the property.
In property act section 6 states that property of any kind can be transferred, except, as otherwise provided by the Act or, by any other law that is in force. (6) However, it has two exceptions, which are as follows:-
Whenever it is provided otherwise
- By this Act itself or
- By any other Act which is in force
Immovable property
In property act of 1882 by immovable property we meant is that a property that has a fixed space in the world where it cannot be transfer from one place to another. (7). To clarify more we can say is that Immovable property is property that has a fixed location and cannot be moved or transferred elsewhere. It can be built upon or affixed to the ground; the term legally also refers to land or the premises upon which a home or building stands. In real-estate law, immovable property has specific characteristics and ownership confers certain rights upon those persons holding full or partial title to the property.(8)
Movable property is just the opposite or vis- versa of immovable property where it means is that a property that can be move from one place to another. People can be an owner of furniture indeed it is a property to that owner so he or she can move the furniture as they wishes to do so but an immovable property as land we can’t move from one place to another.(9) Since, we are working with a property act law so immovable property is the best example to work with.
Characteristics of immovable property
Immovable property can be transfer either absolutely or conditionally. Basically what it meant by immovable property is that a land and benefit arising from the land. It cannot be transfer from one place to another so it can only be happen in circumstances like the ownership of the property
can be transfer rather than the whole place of the property. The owner can transfer the property either absolutely or wholly also it can be transfer partly. (10) In some cases the property can be transfer conditionally in that particular case the owner sets up some benchmarks to fulfill.
In real estate business some developer takes the right from the owner of the land to build the building in the owners place. In that case owner is still the owner of the land but the right of the land or interest of the land is transferred to the developer to build the building there with a condition to give some portion of the building to the land owner.
Immovable property is land but does not include the followings (11)
1. Standing timber
2. Grass
3. Crops
Example of immovable property (12)
Rent, right to way, right to fishery, right to receive future rent, factory, hereditary offices etc.
So we can is that immovable property is land benefiting from it and things attached to it. Attached to the land by it we mean is that rooted in land imbedded in land or attached to something which is attached to the land is what we call immovable property.
Property can be transfer either absolutely or conditionally:-
Transferring property can have different meaning even though the word is just use as transfer. In transferring property the owner or the transferor need to see the transferee if he or she is competent of making the transfer.(13)
Absolute transfer of the property means a property can be transfer to the transferee the whole portion of the land. So, all the interest of the transferor is transferred with the land to the transferee. If the transfer that took place with a condition then it will be conditional transfer.(14)
Conditional transfer of a property means that the property will be transferred to the transferee with a condition to meet otherwise the contract will be void. (15)
According to the transfer property act of 1882 sec25
An interest created on a transfer of property and dependent upon a condition fails if the fulfillment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed a public policy.
As an example of the above scenario we can say is that (a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.(b) A gives Tk. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.(c) A transfers Tk. 500 to B on condition that she shall murder C. The transfer is void.(d) A transfers Tk. 500 to his niece C if she will desert her husband. (16)
When fulfilling condition or meeting the needs of the condition this thing applies as the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with. E.g. Person A transfers Tk. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the conditions.(17)
Where, on a transfer of property, an interest therein is created in favor of one person, and by the same transaction an ulterior disposition of the same interest is made in favor of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.(18) But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.(19)
Sale of immovable property
As we have mentioned earlier that immovable property is something that cannot be moved from its original location. So, sale is a transfer of ownership in exchange for a price paid, promised, or partly paid and part promised. Such transfer in case of tangible immovable property of value of tk 100 or more can be made only by a registered instrument. When delivery of tangible immovable property is made and when a seller places the buyer or such person as he directs, in possession of the property.(20) Thus, delivery of immovable property can be only by handing over actual possession to the buyer or to a person authorized by the buyer. Immovable property thus can be sale to transfer either wholly or partly.
Lease of immovable property
when a property is leased by a lessee then the right of using the property is transferred by the lesser to the lessee. A lease of immovable property is a transfer of a right to use the property, made for a certain time, express or implied, or in perpetuity. Such transfer of right should be in consideration of a price paid or promised to the transferor by the transferee, who accepts the transfer on such terms. (21)Lease of property from year to year or for any term exceeding one year can be made only by a registered instrument. Lease is a conditional transfer of a property where owner of the land is the landholder and right of the land is given to the lessee for a specific period of time.
Mortgage of property
Mortgage in recent time is an option to get loan from the bank keeping the property as collateral to get some money. Mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced, by way of loan or an existing or future debt. The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest of which payment is secured are called ‘mortgage money’, and the instrument by which transfer is affected is called a mortgage deed.(21) Mortgage can be simple mortgage, mortgage by conditional sale, or mortgage by deposit of title deeds. Mortgage is a conditional transfer of property where the transferee doesn’t have anything to do with the property otherwise will be sued against the mortgagors.
Charge of property
in this case the immovable property of one person is made security for payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property. This can be by act of parties or by operation of law. The provisions in respect of simple mortgage will apply to such a charge.(22)
Exchange of property
Exchange of immovable property can be of like when we exchange a something for the property is called the exchange of property. Basically it is a conditional transfer of a property. The exchange is not happening to be for money. If the exchange is done for the money then it will not be consider as an exchange of property rather it will be named as a sale of property. Here we can mention is that exchange of a property is a conditional transfer of a property.(23)
A scenario of exchange of property can be like if a person builds a building and didn’t paid the due to the person who provided with material of the building in that case with the mutual agreement that the owner of the building will give a portion of a land to the provider of the equipment where it will be termed as exchange of property in proving goods for the building equipment.
Gifts of property
When a portion of the land is gifted to someone as a present of something which can be termed as a gifts transferred to the transferee. Acceptance of the gift or the gift holders has to be competent enough to receive the gift.(24) Someone else on behalf of someone can receive the gift. This transfer of the property in this case can be of absolutely or partly. The whole right and the interest of the property has to be transferred to the transferee so that the transferee can dispose Off the land if necessary. If any intention is noticed then this gift will not be considered as a gift rather it will be consider as a conditional transfer of a property to one person to another. For the purpose of making a gift of immovable property, the transfer must be affected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be affected either by a registered instrument signed as aforesaid or by delivery.(25) Such delivery may be made in the same way as goods sold may be delivered. A gift of a thing to two or more donees, of which one does not accept it, is void as to the interest which he would have taken had he accepted.
Conclusion
Transfer of property act is basically followed by the property act of 1882. In this amendment of the act all the law is made under the transfer of property. Transfer of property is used differently in different country. Transfer of property means an act by which a living person conveys property, in present or future, to one or more living persons, or to himself and one or more other living persons. ‘Living person’ includes a company or association or body of individuals, whether incorporated or not. [section 5]. – – The property may be movable or immovable, present or future. (26) Transfer of property means transferring the right or the interest of the property to
26. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=48§ions_id=15996
the transferee. So, that the transferee can sale or dispose of the land if necessary with his or her will. Property can be of different types where some are movable and some are immovable. Property is basically based on immovable property which is known to be the land or property that cannot move from one place to another.(27) Movable properties are those who can easily be placed somewhere else. In movable property flexibility is a thing that can be considered. Immovable properties are placed in one place that can be in the same place for the life time.
Transfer of property can be of either absolutely or conditionally. Sale of property is when a transferor sales the property to other person for a price with a legal procedure is a conditional approach of transferring property. (28)It is conditional because without the money the owner would not have transfer for free. If the property is transferred for a cause that is conditional transfer of a property otherwise it will be counted as a gift. Same for mortgage lease and exchange of property these all are known to be a conditional transfer of a property.
So we can say is that under the property act property can be transfer in various ways and the transfer of the property can be with a condition which is known to be conditional transfer of the property and other without any condition which can be transfer of immovable property absolutely.
References
1. http://timesofindia.indiatimes.com/hyderabad/Transfer-property/articleshow/977776.cms
2. http://timesofindia.indiatimes.com/hyderabad/Transfer-property/articleshow/977776.cms
3. bdlaws.minlaw.gov.bd/pdf_part.php?id=48a
4. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=48§ions_id=15996
5. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=48§ions_id=15997
6. homeguides.sfgate.com/meaning-immovable-property-1575.html
7. http://www.authorstream.com/Presentation/gyanagnihotri-467243-transfer-of-property-act/
8. http://www.1911encyclopedia.org/Sale_Of_Goods
10. bdlaws.minlaw.gov.bd/sections_detail.php?id=48§ions_id=15996
11. http://www.propertylawyers.org.nz/public/what-does-this-term-mean
12. http://jurisonline.in/?p=2841
13. http://timesofindia.indiatimes.com/hyderabad/Transfer-property/articleshow/977776.cms
15. dolr.nic.in/Acts&Rules\TransferOfPropertyAct(1882).htm
17. memory.loc.gov › American Memory
18. faolex.fao.org/docs/texts/bgd35572.doc
19. bdlaws.minlaw.gov.bd/print_sections_all.php?id=48
20. http://timesofindia.indiatimes.com/hyderabad/Transfer-property/articleshow/977776.cms
22. https://www.google.com.bd/search?q=under+the+transfer+of+property+act+a+property+can+be+transfer+conditionally+or+absolutely&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a#hl=en&client=firefox-a&rls=org.mozilla:en-US:official&q=transfer+of+property+act&revid=659429460&sa=X&psj=1&ei=e0VaUcKfEsKNrgfYv4HwDQ&ved=0CH8Q1QIoAA&bav=on.2,or.r_qf.&bvm=bv.44442042,d.bmk&fp=b2af6b1832676dbe&biw=1024&bih=430