The TRANSFER OF PROPERTY ACT, 1882

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THE TRANSFER OF PROPERTY ACT, 1882
(4 OF 1882)
[17TH FEBRUARY 1882]

An Act to amend the law relating to the Transfer of Property by act of Parties

Preamble – WHEREAS it is expedient to define and amend certain parts of the law relating
to the transfer of property by act of parties; it is hereby enacted as follows: -

Chapter I Preliminary

1. Short title - This Act may be called the Transfer of Property Act, 1882.

Commencement - It shall come into force on the first day of July, 1882.

Extent - 1[It extends2 in the first instance to the whole of India except 3[the territories
which, immediately before the 1st November , 1956, were comprised in Part B States
or in the States of] Bombay, Punjab and Delhi.]

The Act has been declared to be in force in Panth Piploda by the Panth Piploda Laws
Regulation, 1929 (1 of 1929) , sec. 2 , and continued in force , with modifications , in the
territory transferred to Delhi Province by the Delhi Laws Act , 1915 (7 of 1915) , sec. 3 and
Sch. III. It has also been partially extended to Berar by the Berar Laws Act, 1941 (4 of 1941).

The Act has been extended with effect from 1st January , 1893, to the whole of the
territories, other than the Scheduled Districts , under the administration of the Govt. of
Bombay.

Sections 54 , 107 and 123 have been extended from 6th May , 1935, to all
Municipalities in the Punjab and to all notified areas declared and notified under sec. 241 of
the Punjab Municipal Act , 1911 (Pun. 3 of 1911) , see Punjab Gazette , Extra., 1925, p. 27.
Those sections and section 129 have been extended to certain areas in Delhi Province , see
Notifications No. 198/38-III, dated 30th May, 1939, Gazette of India, 1939, Pt. I, p. 918, and
No. 61/40 -Judl., dated 16th November , 1940, Gazette of India , 1940, Pt. I , p. 1639,
respectively.

The Act has been extended to Manipur by the Union Territories (Laws) Amendment
Act, 1956 (68 of 1956).

It has been rep. as to Government Grants by the Government Grants Act , 1895 (15
of 1895) and rep. or modified to the extent necessa ry to give effect to the provisions of the
Madras City Tenants Protection Act , 1921 (Mad. 3 of 1921) in the City of Madras; see sec.
13 of that Act.

It has been amended in Bombay by Bombay Act 14 of 1939 , and in Uttar Pradesh by
Uttar Pradesh Act 24 of 1954.

It has been extended to Pondicherry by Act 26 of 1968, sec. 3, Sch., Part I

1 Subs. by the A..O. 1950, for the original third paragraph.
2 The application of this Act was barred in the Naga Hills District, including the Mokokchang Sub -Division, the
Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasia and Jaintia Hills and the Mikir Hills
Tract, by notification under sec. 2 of the Assam Frontier Tracts Regulation, 1880 (2 of 1880).
3 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part B States”.
2

4[But this Act or any part thereof may be notification in the Official Gazette be
extended to whole or any part of the 5[said territories] by the 6[State] Government concerned.]

7[And any State Government may 8[***] from time to time, by notification in the Official
Gazette, exempt, either retrospectively or prospectively , any part of the territories
administered by such State Government from all or any of the following provisions, namely: -

Sections 54, paragraphs 2 and 3, 59, 107 and 123.]

9 [Notwithstanding anything in the foregoing part of this section , sections 54 ,
paragraphs 2 and 3 , 59, 107 and 123 shall not extend or be extended to any district or tract
of country for the time being excluded from the operation of the Indian Registration Act ,
10[1908], (16 of 1908) under the power conferred by the first section of that Act or otherwise.]

2. Repeal of Acts - Saving of certain enactments, incidents, rights, liabilities, etc.

In the territories to which this Act extends for the time being the enactments specified
in the schedule hereto annexed shall be repealed to the extent therein mentioned. But
nothing herein contained shall be deemed to affect -

(a) the provisions of any enactment not hereby expressly repealed;

(b) any terms or incidents of any contract or constitution of property which are
consistent with the provisions of this Act , and are allowed by the law for the
time being in force;

(c) any right or liability arising out of a legal relation constituted before this Act
comes into force, or any relief in respect of any such right or liability; or

(d) save as provided by section 57 and Chapter IV of this Act , any transfer by
operation of la w or by , or in execution of , a decree or order of a Court of
competent jurisdiction;

and nothing in the second Chapter of this Act shall be deemed to affect any rule of
11[***] Muhammadan 12[***] law.

3. Interpretation clause - In this Act, unless there is something repugnant in the
subject or context, -

“immoveable property” does not include standing timber, growing crops or grass:

“instrument” means a non-testamentary instrument:

4 Subs. by the A.O. 1937, for the original para.
5 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "said States".
6 Subs. by the A.O. 1950, for “Provincial”.
7 Subs. by Act 3 of 1885, sec. 1, for the original para.
8 The words "with the previous sanction of the Governor General in Council" omitted by Act 38 of 1928, sec. 2
and Sch. I.
9 Added by Act 3 of 1885, sec. 2 (with retrospective effect). Section 54, paras. 2 and 3, and sections 59, 107 and
123 extend to every cantonment-see sec. 287 of the Cantonments Act, 1924 (2 of 1924).
10 Subs. by Act 20 of 1920, sec. 2, for "1877".
11 The word "Hindu" omitted by Act 20 of 1929, sec. 3.
12 The words "or Buddhist" omitted by Act 20 of 1929, sec. 3.
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13[“attested”, in relation to an instrument, means and shall be deemed always to have
meant attested by two or more witnesses each of whom has seen the executant sign or affix
his mark to the instrument , or has seen some other person sign the instrument in the
presence and by the direction of the executant , or has received from the executant a
personal acknowledgment of his signature or mark , or of the signature of such other person ,
and each of whom has signed the instrument in the presence of the executant; but it shall
not be necessary that more than one of such witnesses shall have been present at the same
time, and no particular form of attestation shall be necessary:]

“registered” means regist ered in 14[15[any part of the territories] to which this Act
extends] under the law16 for the time being in force regulating the registration of documents:

“attached to the earth” means -

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings;or

17[“actionable claim ” means a claim to any debt , other than a debt secured by
mortgage of immoveable property or by hypothecation or pledge of moveable property , or to
any beneficial interest in moveable property not in the possession , either actual or
constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief ,
whether such debt or beneficial interest be existent, accruing, conditional or contingent;]

18[“a person is said to have notic e” of a fact when he actually knows that fact , or
when, but for wilful abstention from an inquiry or search which he ought to have made , or
gross negligence, he would have known it.

Explanation I - Where any transaction relating to immoveable property is required by
law to be and has been effected by a registered instrument , any person acquiring such
property or any part of, or share or interest in, such property shall be deemed to have notice
of such instrument as from the date of registration or, where the property is not all situated in
one sub-district, or where the registered instrument has been registered under sub -section
(2) of section 30 of the Indian Registration Act , 1908 (16 of 1908) , from the earliest date on
which any memorandum of such regist ered instrument has been filed by any Sub -Registrar
within whose sub-district any part of the property which is being acquired , or of the property
wherein a share or interest is being acquired, is situated:]

Provided that -

(1) the instrument has been re gistered and its registration completed in the manner
prescribed by the Indian Registration Act , 1908 (16 of 1908) , and the rules made
thereunder,

(2) the instrument or memorandum has been duly entered or filed , as the case may be ,
in books kept under section 51 of that Act, and

13 Ins. by Act 27 of 1926, sec. 2, as amended by Act 10 of 1927, sec. 2 and Sch. I.
14 Subs. by Act 3 of 1951, sec. 3 and Sch., for "a Part A State or a Part C State" (w.e.f. 1-4-1951).
15 Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "any State".
16 See the Indian Registration Act, 1908 (16 of 1908).
17 Ins. By Act 2 of 1900, sec. 2.
18 Subs. by Act 20 of 1929, sec. 4 as amended by Act 5 of 1930, sec. 2 for the original paragraph.
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(3) the particulars regarding the transaction to which the instrument relates have been
correctly entered in the indexes kept under section 55 of that Act.

Explanation II - Any person acquiring any immoveable property or any shar e or
interest in any such property shall be deemed to have notice of the title , if any, of any person
who is for the time being in actual possession thereof.

Explanation III - A person shall be deemed to have had notice of any fact if his agent
acquires notice thereof whilst acting on his behalf in the course of business to which that fact
is material:

Provided that, if the agent fraudulently conceals the fact , the principal shall not be
charged with notice thereof as against any person who was a party to or otherwise cognizant
of the fraud.

4. Enactments relating to contracts to be taken as part of Contract Act and
supplemental to the Registration Act

The Chapters and sections of this Act which relate to contracts shall be taken as part
of the Indian Contract Act, 1872 (9 of 1872).

19[And sections 54 , paragraphs 2 and 3 , sections 59, 107 and 123 shall be read as
supplemental to the Indian Registration Act, 20[1908 (16 of 1908)].]

19 Added by Act 3 of 1885, sec. 3.
20 Subs. by Act 20 of 1929, sec. 5, for “1877”.
Chapter II1 Of Transfers of Property by Act of Parties

(A) Transfer of Property, whether moveable or immoveable

5. “Transfer of property” defined

In the following sections “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,
2[or to himself] and one or more other living persons; and “to transfer property” is to perform
such act.

2 [In this section “living person ” includes a company or association 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.]

6. What may be transferred

Property of any kind may be transferred , except as otherwise provided by this Act or
by any other law for the time being in force, -

(a) The chance of an heir -apparent succeeding to an estate , the chance of relation
obtaining a legacy on the death of a kinsman , or any other mere possibility of a like
nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to
any one except the owner of the property affected thereby.

(d) An interest in property restric ted in its enjoyment to the owner personally cannot be
transferred by him.

3[(dd) A right to future maintenance , in whatsoever manner arising, secured or determined,
cannot be transferred.]

(e) A mere right to sue 4[***] cannot be transferred.

(f) A public office cannot be transferred , nor can the salary of a public officer , whether
before or after it has become payable.

(g) Stipends allowed to military 5[naval], 6[air-force] and civil pensioners of 7[Government]
and political pensions cannot be transferred.

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest
affected thereby, or (2) 8[for an unlawful object or consideration within the meaning of

1 Nothing in Chapter II is to be deemed to affect any rule of Muhammadan Law, see section 2, Act 20 of 1929.
2 Ins. by Act 20 of 1929, sec. 6.
3 Ins. By Act 20 of 1929, sec. 6.
4 The words “for compensation for a fraud or for harm illegally caused” omitted by Act 2 of 1900, sec. 3.
5 Ins. by Act 35 of 1934, sec. 2 and Sch.
6 Ins. by Act 10 of 1927, sec. 2 and Sch. I.
7 The word "Government" successively subs. by the A.O. 1937 and the A.O. 1950 to read as above.
8 Subs. by Act 2 of 1900, sec. 3, for "for an illegal purpose".
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section 23 of the Indian Contract Act , 1872 (9 of 1872)] , or (3) to a p erson legally
disqualified to be transferee.

9[(i) Nothing in this section shall be deemed to authorize a tenant having an
untransferable right of occupancy, the farmer of an estate in respect of which default
has been made in paying revenue, or the lessee of an estate, under the management
of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]

7. Persons competent to transfer

Every person competent to contract and entitled to transferable property , or
authorized to dispose of tra nsferable property not his own , is competent to transfer such
property either wholly or in part , and either absolutely or conditionally , in the circumstances,
to the extend and in the manner , allowed and prescribed by any law for the time being in
force.

8. Operation of transfer

Unless a different intention is expressed or necessarily implied , a transfer of property
passes forthwith to the transferee all the interest which the transferor is then capable of
passing in the property, and in the legal incidents thereof.

Such incidents include , where the property is land , the easements annexed thereto ,
the rents and profits thereof accruing after the transfer, and all things attached to the earth;

and, where the property is machinery attached to the earth , the moveable parts
thereof;

and, where the property is a house , the easements annexed thereto, the rent thereof
accruing after the transfer , and the locks , keys, bars, doors, windows, and all other things
provided for permanent use therewith;

and, where the property is a debt or other actionable claim , the securities therefor
(except where they are also for other debts or claims not transferred to the transferee) , but
not arrears of interest accrued before the transfer;

and, where the property is money or other property yielding income , the interest or
income thereof accruing after the transfer takes effect.

9. Oral transfer

A transfer of property may be made without writing in every case in which a writing is not
expressly required by law.

10. Condition restraining alienation

Where property is transferred subject to a condition or limitation absolutely
restraining the transferee or any person claiming under him from parting with or disposing of
his interest in the property , the condition or limitation i s void, except in the case of a lease
where the condition is for the benefit of the lessor or those claiming under him: provided that
property may be transferred to or for the benefit of a woman (not being a Hindu ,
Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer
or charge the same or her beneficial interest therein.

9 Added by Act 3 of 1885, sec. 4.
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11. Restriction repugnant to interest created

Where, on a transfer of property, an interest therein is created absolutely in favour of
any person, but the terms of the transfer direct that such interest shall be applied or enjoyed
by him in a particular manner , he shall be entitled to receive and dispose of such interest as
if there were no such direction.

10[Where any such direction has been made in res pect of one piece of immoveable
property for the purpose of securing the beneficial enjoyment of another piece of such
property, nothing in this section shall be deemed to affect any right which the transferor may
have to enforce such direction or any reme dy which he may have in respect of a breach
thereof.]

12. Condition making interest determinable on insolvency or attempted alienation

Where property is transferred subject to a condition or limitation making any interest
therein, reserved or given to or for the benefit of any person , to cease on his becoming
insolvent or endeavouring to transfer or dispose of the same , such condition or limitation is
void.

Nothing in this section applies to a condition in a lease for the benefit of the lessor or
those claiming under him.

13. Transfer for benefit of unborn person

Where, on a transfer of property , an interest therein is created for the benefit of a
person not in existence at the date of the transfer , subject to a prior interest created by the
same transfer, the interest created for the benefit of such person shall not take effect , unless
it extends to the whole of the remaining interest of the transferor in the property.

Illustration

A transfers property of which he is the owner to B in trust for A and his intended wife
successively for their lives , and, after the death of the survivor , for the eldest son of the
intended marriage for life, and after his death for A ’s second son. The interest so created for
the benefit of the eldest son does not take effe ct, because it does not extend to the whole of
A’s remaining interest in the property.

14. Rule against perpetuity

No transfer of property can operate to create an interest which is to take effect after
the life-time of one or more persons living a t the date of such transfer , and the minority of
some person who shall be in existence at the expiration of that period , and to whom , if he
attains full age, the interest created is to belong.

15. Transfer to class some of whom come under sections 13 and 14

If, on a transfer of property , an interest therein is created for the benefit of a class of
persons with regard to some of whom such interest fails by reason of any of the rules
contained in sections 13 and 14, such interest fails 11[in regard to those persons only and not
in regard to the whole class].

10 subs. by Act 20 of 1929, sec. 8, for the original paragraph.
11 Subs. by Act 20 of 1929, sec. 9, for “as regards the whole class”.
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12[16. Transfer to take effect on failure of prior interest

Where, by reason of any of the rules contained in sections 13 and 14 , an interest
created for the benefit of a person or of a class of persons fails in regard to such person or
the whole of such class , any interest created in the same transaction and intended to take
effect after or upon failure of such prior interest also fails.

17. Direction for accumulation

(1) Where the terms of a transfer of property direct that the income arising from the
property shall be accumulated either wholly or in part during a period longer than -

(a) the life of the transferor, or

(b) a period of eighteen years from the date of the transfer,

such direction shall, save as hereinafter provided , be void to the extent to which the
period during which the accumulation is directed exceeds the longer of the aforesaid
periods, and at the end of such last -mentioned period the property and the income
thereof shall be disposed of as if the period during which the accumulation has been
directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of-

(i) the payment of the debts of the transferor or any other person takin g any
interest under the transfer, or

(ii) the provision of portions for children or remoter issue of the transferor or of
any other person taking any interest under the transfer, or

(iii) the preservation or maintenance of the property transferred;

and such direction may be made accordingly.

18. Transfer in perpetuity for benefit of public

The restrictions in sections 14 , 16 and 17 shall not apply in the case of a transfer of
property for the benefit of the public in the advancement of religion , knowledge, commerce,
health, safety, or any other object beneficial to mankind.]

19. Vested interest

Where, on a transfer of property , an interest therein is created in favour of a person
without specifying the time when it is to take effect , or in ter ms specifying that it is to take
effect forthwith or on the happening of an event which must happen , such interest is vested,
unless a contrary intention appears from the terms of the transfer.

A vested interest is not defeated by the death of the transfe ree before he obtains
possession.

Explanation - An intention that an interest shall not be vested is not to be inferred
merely from a provision whereby the enjoyment thereof is postponed , or whereby a prior
interest in the same property is given or reserv ed to some other person , or whereby income

12 Subs. by Act 20 of 1929, sec. 10, for the original sections 16 to 18.
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arising from the property is directed to be accumulated until the time of enjoyment arrives , or
from a provision that if a particular event shall happen the interest shall pass to another
person.

20. When unborn person acquires vested interest on transfer for his benefit

Where, on a transfer of property , an interest therein is created for the benefit of a
person not then living , he acquires upon his birth , unless a contrary intention appear from
the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment
thereof immediately on his birth.

21. Contingent interest

Where, on a transfer of property , an interest therein is created in favour of a person
to take effect only on the happening of a specified uncertain event, or if a specified uncertain
event shall not happen , such person thereby acquires a contingent interest in the property.
Such interest becomes a vested interest , in the former case, on the happening of the event ,
in the latter, when the happening of the event becomes impossible.

Exception - Where, under a transfer of property , a person becomes entitled to an
interest therein upon attaining a particular age , and the transferor also gives to him
absolutely the income to arise from such interest before he reaches that age , or directs the
income or so much thereof as may be necessary to be applied for his benefit , such interest
is not contingent.

22. Transfer to members of a class who attain a particular age

Where, on a transfer of property , an interest therein is created in favour of such
members only of a class as shall attain a particular age , such interest does not vest in any
member of the class who has not attained that age.

23. Transfer contingent on happening of specified uncertain event

Where, on a transfer of property, an interest therein is to accrue to a specified person
if a specified uncertain event shall happen , and no time is mentioned for the occurrence of
that event, the interest fails unless such event happens before , or at the same time as , the
intermediate or precedent interest ceases of exist.

24. Transfer to such of certain persons as survive at some period not specified

Where, on a transfer of property , an interest therein is to accrue to su ch of certain
persons as shall go to such of them as shall be alive when the intermediate or precedent
interest ceases to exist, unless a contrary intention appears from the terms of the transfer.

Illustration

A transfers property to B for life, and after his death to C and D, equally to be divided
between them, or to the survivor of them. C dies during the life of B. D survives B. At B ’s
death the property passes to D.

25. Conditional transfer

An interest created on a transfer of property and dependent upon a condition fails if
the fulfilment 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
10
injury to the person or propert y of another, or the Court regards it as immoral or opposed to
public policy.

Illustrations

(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 Rs. 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.

(d) A transfers Rs. 500 to his niece C if she will desert her husband. The transfer
is void.

26. Fulfilment of condition precedent

Where 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.

Illustrations

(a) A transfers Rs. 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 condition.

(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of
C, D and E. B marries without the consent of C , D and E , but obtains their
consent after the marriage. B has not fulfilled the condition.

27. Conditional transfer to one person coupled with transfer to another on failure
of prior disposition

Where, on a transfer of property , an interest therein is created in favour of one
person, and by the same transaction an ulterior disposition of the same interest is made in
favour 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.

But, where the intention of the parties to the tr ansaction 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.

Illustrations

(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease
within three months after A’s death, and, if he should neglect to do so, to C. B
dies in A’s life-time. The disposition in favour of C takes effect.

(b) A transfers property to his wife; but, in case she should die in his life -time,
transfers to B that which he had transferred to her. A and his wife perish
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together, under circumstances which make it impossible to prove that she
died before him. The disposition in favour of B does not take effect.

28. Ulterior transfer conditional on happening or not happening of specified event

On a transfer of property an interest therein may be created to accrue to any person
with the condition superadded that in case a specified uncertain event s hall happen such
interest shall pass to another person , or that in case a specified uncertain event shall not
happen such interest shall pass to another person. In each case the dispositions are subject
to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.

29. Fulfilment of condition subsequent

An ulterior disposition of the kind contemplated by the last preceding section cannot
take effect unless the condition is strictly fulfilled.

Illustration

A transfers Rs. 500 to B , to be paid to h im on his attaining his majority or marrying ,
with a proviso that, if B dies a minor or marries without C’s consent, the Rs. 500 shall go to D.
B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.

30. Prior disposition not affected by invalidity of ulterior disposition

If the ulterior disposition is not valid, the prior disposition is not affected by it.

Illustration

A transfers a farm to B for her life , and, if she do not desert her husband , to C. B is
entitled to the farm during her life as if no condition had been inserted.

31. Condition that transfer shall cease to have effect in case specified uncertain
event happens or does not happen

Subject to the provisions of section 12 , on a transfer of property an interest therein
may be created with the condition superadded that it shall cease to exist in case a specified
uncertain event shall happen, or in case a specified uncertain event shall not happen.

Illustrations

(a) A transfers a farm to B for his life , with a proviso that , in case B cuts down a
certain wood , the transfer shall cease to have any effect. B cuts down the
wood. He loses his life-interest in the farm.

(b) A transfers a farm to B, provided that, if B shall not go to England within three
years after the date of the transfer, his interest in the farm shall cease. B does
not go to England within the term prescribed. His interest in the farm ceases.

32. Such condition must not be invalid

In order that a condition that an interest shall cea se to exist may be valid , it is
necessary that the event to which it relates be one which could legally constitute the
condition of the creation of an interest.

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33. Transfer conditional on performance of act, no time being specified for
performance

Where, on a transfer of property , an interest therein is created subject to a condition
that the person taking it shall perform a certain act , but no time is specified for the
performance of the act, the condition is broken when he renders impossible , permanently or
for an indefinite period, the performance of the act.

34. Transfer conditional on performance of act, time being specified

Where an act is to be performed by a person either as a condition to be fulfilled
before an interest created on a transfer of property is enjoyed by him , or as a condition on
the non-fulfilment of which the interest is to pass from him to another person , and a time is
specified for the performance of the act , if such performance within the specified time is
prevented by the frau d of a person who would be directly benefited by non -fulfilment of the
condition, such further time shall as against him be allowed for performing the act as shall be
requisite to make up for the delay caused by such fraud. But if no time is specified for the
performance of the act , then, if its performance is by the fraud of a person interested in the
non- fulfilment of the condition rendered impossible or indefinitely postponed , the condition
shall as against him be deemed to have been fulfilled.

Election

35. Election when necessary

Where a person professes to transfer property which he has no right to transfer , and
as part of the same transaction confers any benefit on the owner of the property, such owner
must elect either to confirm such transfer or to dissent from it; and in the latter case he shall
relinquish the benefit so conferred , and the benefit so relinquished shall revert to the
transferor or his representative as if it had not been disposed of,

subject nevertheless,

where the transfer is gratuitous, and the transferor has , before the election , died or
otherwise become incapable of making a fresh transfer,

and in all cases where the transfer is for consideration,

to the charge of making good to the disappointed transferee the amount or va lue of
the property attempted to be transferred to him.

Illustrations

The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of
gift professes to transfer it to B , giving by the same instrument Rs. 1 ,000 to C. C elects to
retain the farm. He forfeits the gift of Rs. 1,000.

In the same case , A dies before the election. His representative must out of the Rs.
1,000 pay Rs. 800 to B.

The rule in the first paragraph of this section applies whether the transferor does or
does not believe that which he professes to transfer to be his own.

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A person taking no benefit directly under a transaction , but deriving a benefit under it
indirectly, need not elect.

A person who in his one capacity takes a benefit under the transaction may in
another dissent therefrom.

Exception to the last preceding four rules - Where a particular benefit is expressed to
be conferred on the owner of the property which the transferor professes to transfer , and
such benefit is expressed to be in lieu of that prope rty, if such owner claim the property , he
must relinquish the particular benefit , but he is not bound to relinquish any other benefit
conferred upon him by the same transaction.

Acceptance of the benefit by the person on whom it is conferred constitutes a n
election by him to confirm the transfer , if he is aware of his duty to elect and of those
circumstances which would influence the judgment of a reasonable man in making an
election, or if he waives enquiry into the circumstances.

Such knowledge or waive r shall , in the absence of evidence to the contrary , be
presumed, if the person on whom the benefit has been conferred has enjoyed it for two
years without doing any act to express dissent.

Such knowledge of waiver may be inferred from any act of his whic h renders it
impossible to place the persons interested in the property professed to be transferred in the
same condition as if such act had not been done.

Illustration

A transfers to B an estate to which C is entitled , and as part of the same transactio n
gives C a coal -mine. C takes possession of the mine and exhausts it. He has thereby
confirmed the transfer of the estate to B.

If he does not within one year after the date of the transfer signify to the transferor or
his representatives his intention t o confirm or to dissent from the transfer , the transferor or
his representative may, upon the expiration of that period , require him to make his election;
and, if he does not comply with such requisition within a reasonable time after he has
received it, he shall be deemed to have elected to confirm the transfer.

In case of disability, the election shall be postponed until the disability ceases, or until
the election is made by some competent authority.

Apportionment

36. Apportionment of periodical payments on determination of interest of person
entitled

In the absence of a contract or local usage to the contrary , all rents , annuities,
pensions, dividends and other periodical payments in the nature of income shall , upon the
transfer of the interest of t he person entitled to receive such payments , be deemed , as
between the transferor and the transferee , to accrue due from day to day , and to be
apportionable accordingly, but to be payable on the days appointed for the payment thereof.

14
37. Apportionment of benefit of obligation on severance

When, in consequence of a transfer , property is divided and held in several shares ,
and thereupon the benefit of any obligation relating to the property as a whole passes from
one to several owners of the property , the corresponding duty shall , in the absence of a
contract to the contrary amongst the owners , be performed in favour of each of such owners
in proportion to the value of his share in the property , provided that the duty can be severed
and that the severance does not substantially increase the burden of the obligation; but if the
duty cannot be severed , or if the severance would substantially increase the burden of the
obligation, the duty shall be performed for the benefit of such one of the several owners as
they shall jointly designate for that purpose:

Provided that no person on whom the burden of the obligation lies shall be
answerable for failure to discharge it in manner provided by this section , unless and until he
has had reasonable notice of the severance.

Nothing in this section applies to leases for agricultural purposes unless and until the
State Government by notification in the Official Gazette so directs.

Illustrations

(a) A sells to B, C and D a house situate in a village and leased to E at a n annual
rent of Rs. 30 and delivery of one fat sheep , B having provided half the
purchase-money and C and D one -quarter each. E , having notice of this ,
must pay Rs. 15 to B, Rs. 7 1/2 to C, and Rs. 7 1/2 to D, and must deliver the
sheep according to the joint direction of B, C and D.

(b) In the same case, each house in the village being bound to provide ten days ’
labour each year on a dyke to prevent inundation , E had agreed as a term of
his lease to perform this work for A. B , C and D severally require E to perform
the ten days’ work due on account of the house of each. E is not bound to do
more than ten days ’ work in all , according to such directions as B , C and D
may join in giving.

(B) Transfer of Immoveable Property

38. Transfer by person authorised only under certain circumstances to transfer

Where any person , authorized only under circumstances in their nature variable to
dispose of immoveable property , transfers such property for consideration , alleging the
existence of such circumstances , they shall, as between the transferee on the one part and
the transferor and other persons (if any) affected by the transfer on the other part , be
deemed to have existed , if the transferee , after using reasonable care to ascertain the
existence of such circumstances, has acted in good faith.

Illustration

A, a Hindu widow, whose husband has left collateral heirs , alleging that the property
held by her as such is insufficient for her maintenance, agrees, for purposes neither religious
nor charitable, to sell a field, part of such property , to B. B satisfies himself by reasonable
enquiry that the income of the property is insufficient for A ’s maintenance, and that the sale
of the field is necessary, and acting in good faith, buys the field from A. As between B on the
one part and A and the collateral heirs on the other part , a necessity for the sale shall be
deemed to have existed.
15
39. Transfer where third person is entitled to maintenance

Where a third person has a right to receive maintenance , or a provision f or
advancement or marriage , from the profits of immoveable property , and such property is
transferred, 13 [***] the right may be enforced against the transferee , if he has notice
14[thereof] or if the transfer is gratuitous; but not against a transferee for c onsideration and
without notice of the right, nor against such property in his hands.

15[***]

40. Burden of obligation imposing restriction on use of land

Where, for the more beneficial enjoyment of his own immoveable property , a third
person has, independently of any interest in the immoveable property of another or of any
easement thereon , a right to restrain the enjoyment 16[in a particular manner of the latter
property], or

Or of obligation annexed to ownership but not amounting to interest or easement

Where a third person is entitled to the benefit of an obligation arising out of contract
and annexed to the ownership of immoveable property , but not amounting to an interest
therein or easement thereon,

such right or obligation may be enforced against a transferee with notice thereof or a
gratuitous transferee of the property affected thereby , but not against a transferee for
consideration and without notice of the right or obligation , nor against such property in his
hands.

Illustration

A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur
to C , who has notice of the contract. B may enforce the contract against C to the same
extent as against A.

41. Transfer by ostensible owner

Where, with the consent, express or implied, of the persons interested in immoveable
property, a person is the ostensible owner of such property and transfers the same for
consideration, the transfer shall not be voidable on the ground that the transferor was not
authorized to make it: pr ovided that the transferee, after taking reasonable care to ascertain
that the transferor had power to make the transfer, has acted in good faith.

42. Transfer by person having authority to revoke former transfer

Where a person transfers any immoveable property, reserving power to revoke the
transfer, and subsequently transfers the property for consideration to another transferee ,
such transfer operates in favour of such transferee (subject to any condition attached to the
exercise of the power) as a revocation of the former transfer to the extent of the power.

13 The words “with the intention of defeating such right” omitted by Act 20 of 1929, sec. 11.
14 Subs. by Act 20 of 1929, sec. 11, for “of such intention”.
15 The illustration omitted by Act 20 of 1929, sec. 11.
16 Subs. by Act 20 of 1929, sec. 12, for “of the latter property or to compel its enjoyment in a particular manner”.
16
Illustration

A lets a house to B , and reserves power to revoke the lease if , in the opinion of a
specified surveyor, B should make a use of it detrimental to its value , Afterwards A, thinking
that such a use has been made , lets the house to C. This operates as a revocation of B ’s
lease subject to the opinion of the surveyor as to B ’s use of the house having been
detrimental to its value.

43. Transfer by unauthorized person who subsequently acquires interest in
property transferred

Where a person 17[fraudulently or] erroneously represents that he is authorized to
transfer certain immovable property , and professes to transfer such property for
consideration, such transfer shall , at the option of the transferee, operate on any interest
which the transferor may acquire in such property at any time during which the contract of
transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for
consideration without notice of the existence of the said option.

Illustration

A, a Hindu who has separated from his father B , sells to C three fields , X, Y and Z ,
representing that A is authorized to transfer the same. Of these fields Z does not belong to A ,
it having been retaine d by B on the partition; but on B ’s dying A as heir obtains Z. C , not
having rescinded the contract of sale, may require A to deliver Z to him.

44. Transfer by one co-owner

Where one of two or more co -owners of immoveable property legally competent in
that behalf transfer his share of such property or any interest therein , the transferee acquires,
as to such share or interest , and so far as is necessary to give effect to the transfer , the
transferor’s right to joint possession or other common or part enjo yment of the property, and
to enforce a partition of the same , but subject to the conditions and liabilities affecting, at the
date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family
is not a member of the family , nothing in this section shall be deemed to entitle him to joint
possession or other common or part enjoyment of the house.

45. Joint transfer for consideration

Where immoveable property is transferred for consideration to two or more persons ,
and such consideration is paid out of a fund belonging to them in common , they are, in the
absence of a contract to the contrary , respectively entitled to interests in such property
identical, as nearly as may be , with the interests to which they were respectively en

Excerpt shown. Open the full act in Lexace.

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