The transfer of property can be either done from the seller to the buyer or from one family member to another member or relative. This is usually done to protect the transferee against any future problems, claims and frauds. The transfer of property in India is governed by the Transfer of Property Act 1882. The primary purpose of this act is to define and regulate property transactions in India. In this blog post titled ‘The Transfer of Property Act 1882: Explained”, we will explain all the important provisions of the TPA act, including Transfer of Property Act Section 52 and Section 53A.
What is the Transfer of Property Act?
The Transfer of Property Act 1882 is a colonial-era legislation that defines how properties are transferred in India. Whether a property is movable or immovable, this Act applies to all kinds of property. Moreover, the TPA Act regulates the sale, lease, mortgage and gift of immovable property.
All the rules and procedures for transferring property in India are laid down under the TPA Act. This Act creates certain rights and liabilities for the parties involved in property transfer. Apart from this, the TPA Act provides rights and obligations of mortgage parties, including mortgagor and mortgagee’s rights.
Background of the TPA Act
Before the British Raj system was introduced in India, the transfer of property for Hindus and Muslims was governed by their personal laws. British involvement in the Indian legal system resulted in the establishment of informal courts where, in contrast to English law, there was no clear and specific legislation.
A number of High Courts have stated that particular acts pertaining to property transfers are necessary. The privy council acknowledged the ambiguities and instructed the authorities to act right away because the principles of equity, justice, and a decent conscience were unclear and caused a number of doubts.
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Thus, in order to eliminate doubts, British Queen Elizabeth II appointed the first commission on issues pertaining to property transfers. Following the introduction of various revisions in the Legislative Council in 1877, the document was transmitted to India. After that, it was forwarded to the selection committee, but because of the public outcry, it was later changed.
The Second Law Committee revised the Bill. A portion of the provisions were taken from the Law of Conveyancing and Property Act of 1881, an English statute pertaining to real estate. Most of the time, the law was crafted such that it would be understandable to non-professional judges and would serve the needs of the Indian populace.
Even after various amendments were made by the Second Commission, there was a need for expansion of the law. Thus, a special committee was appointed to amend the prevailing act. Various amendments took place in the act, expanding its scope and correcting the existing flaws.
What is the Transfer of Property Act Section 52?
Transfer of Property Act Section 52 is based on the Doctrine of Lis Pendens, meaning ‘pending legal action’ in Latin. According to this section, if a pending suit over an immovable property persists in the court, a new interest cannot be created upon it, legally speaking.
Transferring the property to a third party or handling it in any way that may adversely affect the parties’ rights is considered to create a new interest. This clause is intended to protect the parties’ rights during litigation. The other parties must be protected from a transfer of property where one party establishes a different set of rights through the transfer of already-disputed property.
A property’s ownership is transferred to the buyer along with a number of related rights when it is purchased. These rights include the ability to sell the property to another person, rent it out, and make money off of it. However, there’s a direct impact of section 52 on the rights of property buyers.
Suppose an individual purchases a disputed property which has a pending suit against it, the valid transfer of rights to such property cannot take place. For the property buyer, such a property will lead to a loss for the property purchaser. It is imperative that the buyer acts with due diligence and checks the title deeds to make sure that he only purchases an undisputed property for his own good.
What is Section 53A of the Transfer of Property Act?
Section 53A of the TPA Act provides that the property transferor is prohibited from enforcing against the transferee any rights related to the transferred property other than those granted under the terms of the contract. This bar placed on the transferor applies only in the event that the transferee accepts ownership of the real estate as partial fulfillment of a written contract and has either fulfilled his portion of the agreement already or is prepared to do so.
In these situations, the transferor cannot forcibly remove the transferee from the property on the grounds that the legal title to the property has not yet been transferred to the transferee and that the legal formalities, such as the contract of sale or transfer, are not in evidence or have not been completed in accordance with the law.
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Section 53A, then, bars or stops the transferor’s claim of title, so granting the transferee the ability to contest possession and ownership of the property. But the contract needs to have a stamp or signature, at the very least.
Conclusion
The Transfer of Property Act 1882 is an important piece of legislation in India. It defines the transfer of properties in India, including movable and immovable properties. Under the TPA Act, the rights and obligations of the parties involved in property transfer are provided. Section 52 and Section 53A of the Property Transfer Act are important provisions.
Section 53A provides that the property transferor is barred from enforcing against the transferee any rights pertaining to the transferred property other than those which have been defined under the terms of the contract. On the other hand, Section 52 states that if a pending suit against an immovable property continues in the court of law, a new interest cannot be created upon such a property. If you liked this blog post, check out our other posts as well!