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January 17, 2023 | Real Estate Property Transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done.

transfer of property indian law

Property Transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done.

Meaning of  Transfer of Property:

The  transfer of  property in India is subject to the provisions of the Transfer of Property Act 1882 and it is this law that regulates the assignment of property within India. This Act has specific conditions attached for the transfer of property and came into force on 1 July 1882.

As we all know property is classified into 2 kinds:

  • Immovable property : - This concept includes the Land, houses and all the structures that are constructed on the land.
  • Movable p roperty : - This includes the properties like jewellery, FDs, Bank accounts and cash. 

Under the 1882 Act, 'transfer of property' means an act by which a person conveys the property to one or more persons, or himself, either in the present or in the future.

Transfer of Property with the  Available  Modes of Transfer:

Property  transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done. However, to be able to contract and sign a transfer document the ability to contract is important and to understand the ability to contract, we have to refer to section 11 of the Indian Contract Act, 1872. Section 11 says that every person is competent to contract

  • Who is of the age of majority according to the law to which he is subject,
  • Who is of sound mind, and
  • Is not disqualified from contracting by any law to which he is subject.

Process amounting to the transfer of property:-

We can transfer properties using certain instruments as listed below: -

(1)    Gift Deed : - As we are all familiar, transferring property ownership by ‘gifting’ the property using a gift deed is used quite commonly in India. Under, Section 122 of the Transfer of Property Act, 1882, gifting a property must be done voluntarily and without consideration of any kind. An acceptance is made by the recipient during the lifetime of the donor. If the acceptance is not made in the lifetime of the donor, the gift becomes void.

(2)    Sale Deed : - The most commonly used method of property transfer is through a Sale Deed. A sale deed is executed between the two parties i.e. the  seller and buyer, for monetary consideration. The  sale is completed once the ownership gets transferred to the new owner, after registration at the office of the  Sub-Registrar of Assurances.  

Acts  Not  Amounting to  Transfer

(3)    Relinquishment Deed : - Under this mode of conveyance, an owner or relinquisher can release all his rights in favour of the other member without consideration. Stamp duty in these cases will be applicable only on the relinquished property and not the property, as a whole. The basic principle here is that no other person apart from the co-owners can create this Deed, hence there is no actual conveyance of title to any third party but among the co-owners themselves.

(4)    Will : - Will is also an effective medium through which the family property can be secured. However, this happens only after the death of the testator and does not qualify the condition of a living or a juristic person to be present. After the death of the testator, the legal heirs need to apply to the concerned civil authorities with a copy of the will, death certificate and Succession Certificate for completing the allocation process.

(5)    Partition Deed : - This method helps transfer property ownership from one person to another by a Partition Deed when there are jointly-owned properties. This helps to divide the property so that each person’s share is determined and partitioned. However, again this is between the co-owners and only the shares get  bifurcated, hence, it’s not a transfer.

(6)    Lease or Leave licence:  Although it transfers possession for some time to the lessee or licensee, it’s not transferring the title of the property and the same devolves back on the owner after the expiry of the  lease/licence period.

Principles  Guiding the  Transfer of Property:

The conditions and principles guiding the transfer of property are as under:

  • Transfer to be effected to a living or juristic person : The main criterion for an effective transfer is that there must be a transfer of the property between living or juristic persons. It could be an individual, firm, corporate or  association but not  partnerships.
  • Transfer through Conveyance : A property can be conveyed in the present or the future.
  • The  property must be transferable : Section 6 of Transfer of Property Act, 1882 lists properties that cannot be transferred and if any of the properties fall in that category they cannot be transferred.
  • Transfer of property must be done by a competent person : The property transferred must be effected by a person of sound mind, the person must be a major or he is not a person disqualified by contract law.
  • The transfer should be made in a prescribed form : The sale of intangible property should be in a written format with requisite government fees paid.
  • The rule against perpetuity : Property must be transferred during the lifetime of an individual, as the perpetuity rule cannot be followed.  A property cannot be transferred to an unborn child and it is necessary to consider that while transferring the interest of the property, the person should be above the age of 18 years.
  • Conditional transfer of property : As we know under Section 25 of the transfer of property Act, 1882, the property may be transferred complying with the condition elaborated. However, if the condition becomes impossible, forbidden by law, opposed to public policy, or is immoral the transfer would be held void.

Conclusion:

The Transfer of Property Act was enacted to create an all-inclusive Act that can provide information about the transfer in a very simple language. Hence, as envisaged above,  we can effect the transfer of property through various sections of the Transfer of Property Act

  • Definition of Resolution plan will now include provisions for corporate restructuring: The amendment act has inserted an explanation in the definition of resolution plan to clarify that a resolution plan that proposes the insolvency resolution of a corporate debtor may include the provisions for corporate restructuring, including by way of merger, amalgamation and demerger.
  • NCLT will have to record reasons for delay in discarding an application for initiation of CIRP: As per the Code, the NCLT must dispose of an application for initiation of CIRP within a period of 14 days from the receipt of application. However, there have been cases when the NCLT has taken more than 14 days to make a decision on the application. Therefore, to ensure speedy disposal and value maximization of the corporate debtor's assets, a proviso has been added which requires that NCLT to record its reasons in writing in case an application is not disposed within 14 days.
  • Corporate Insolvency Resolution Process to be concluded within 330 days: Earlier, the IBC demanded completion of CIRP within 180 days including a one-time extension of 90 days. However, many a times the Courts have allowed removal of certain periods, for instance, time consumed in litigation, from the compulsory completion period resulting in a lot of unresolved CIRPs well beyond the time duration allowed in the IBC. The Amendment act makes it compulsory for a CIRP to be completed within 330 days including any extension of time granted and time taken under legal proceedings. It further states that any pending CIRPs that have been going on for over 330 days should be completed within 90 days from the date of commencement of the Amendment Act.
  • Voting by authorised representative representing a class of financial creditors: To avoid any confusion and facilitate decision making in the Committee of Creditors, especially in cases where financial creditors are a large group, the Amendment Act provides that an authorized representative representing a class of financial creditors shall vote on behalf of all the financial creditors he/she represents in accordance with the decision approved by more than 50% of such financial creditors. This principle however would not be applicable in case of voting for withdrawal of CIRP.
  • Amount payable to functional creditors and disagreeing financial creditors: The Amendment Act provides that payment of debts of operational creditors shall be the higher of
  • the amount to be paid to these creditors at the time of liquidation of the corporate debtor u/s 53 or
  • the amount that would have been paid to such creditors, if the amount to be distributed under the resolution plan had been distributed in accordance of priority as mentioned u/s 53 (1)
  • NCLT has not approved or rejected a resolution plan
  • an appeal is pending at the Supreme Court or at the NCLAT (National Company Law Appellate Tribunal)
  • a lawsuit has been launched in a court challenging the decision of NCLT in relation to a resolution plan
  • Committee of Creditors (COC) to contemplate way of distribution submitted in the resolution plan: Besides the current need of approval of resolution plan after keeping in mind the practicality and acceptability of the resolution plan, the amendment act requires that the CoC consider the manner of distribution proposed in the resolution plan by taking into account the order of priority amongst creditors, as prescribed u/s 53 (1) relating to liquidation waterfall, including the priority and value of security interest of a secured creditor.
  • NCLT approved resolution plan will be binding on the Central Government, State Government or any local authority to whom corporate debtor owes a statutory debt: As per the Code, the approved resolution plan was only binding on the corporate debtor and its employees, creditors, members, guarantors and other stakeholders included in the resolution plan resulting in instances where the Government used to follow up for the balance dues after the said approval of resolution plan. The Amendment Act has now modified Section 31(1) to illuminate that any NCLT approved resolution plan will be binding on the Central Government, State Government and any local authority to whom a corporate debtor owes a debt in respect of payment of dues arising under any law.
  • Liquidation after setting up the Committee of Creditors (COC): The Amendment Act simplifies by way of an explanation, u/s 33(2) which covers liquidation, that the COC may decide to liquidate the corporate debtor any time after the setting-up of the COC until the confirmation of the resolution plan, including at any time before the development of the information memorandum. This change is pertinent as there have been cases where NCLTs have demanded that a liquidation order may be passed only after failure of the CIRP even though an early liquidation would have resulted in value maximization.

transfer of property indian law

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Property Law in India: Navigating Ownership, Rights, and Legal Implications

transfer of property indian law

Table of Contents

Introduction:.

Property law in India is a multifaceted legal framework that governs the ownership, transfer, and management of real estate and other forms of property. With a rich history and diverse cultural influences, India’s property laws have evolved over time to address the complexities arising from urbanization, rapid economic growth, and societal changes. This article explores the intricacies of property law in India, shedding light on ownership rights, legal implications, and the challenges faced by property owners and tenants.

Understanding Property Ownership:

In India, property ownership can take various forms, such as freehold, leasehold, and joint ownership. Freehold ownership grants the owner complete rights over the property, including the land and any structures on it, without any time limit. Leasehold ownership, on the other hand, confers the right to use the property for a specified period, subject to the terms of the lease agreement. Joint ownership allows multiple individuals to co-own a property, each holding a percentage share.

Apart from individual ownership, ancestral property holds special significance in Indian property law. Ancestral property refers to property passed down through generations and is subject to specific legal provisions concerning inheritance.

Legal Rights and Property Disputes:

Property disputes are common in India, often arising due to conflicting claims, unclear land titles, and issues related to tenancy or inheritance. Disputes can become protracted and involve lengthy legal battles, impacting the parties involved both emotionally and financially.

One of the significant sources of property disputes is the ambiguity surrounding land titles, especially in rural areas. The lack of a reliable land records system can lead to multiple claims over the same piece of land, resulting in disputes that can persist for generations.

Additionally, tenancy laws can be a contentious issue, with landlords and tenants often finding themselves at odds over rent control, eviction, and maintenance-related matters. Eviction laws, in particular, can be challenging for landlords seeking to regain possession of their property from non-paying or uncooperative tenants.

Land Acquisition and Social Impact:

India’s rapid urbanization and infrastructure development have necessitated the acquisition of land for public projects. Land acquisition laws in the country have evolved to strike a balance between the needs of development and the protection of the rights of landowners.

However, land acquisition can be a contentious issue, with cases of forced displacement and inadequate compensation leading to protests and social unrest. Balancing the developmental needs of the nation with the protection of the rights and livelihoods of affected communities remains an ongoing challenge.

Inheritance and Succession:

Inheritance laws in India vary based on religious and cultural factors. Different personal laws govern the distribution of property among heirs. For instance, the Hindu Succession Act applies to Hindus, Buddhists, Sikhs, and Jains, while Muslims are governed by Islamic laws of inheritance. The laws governing Christians and Parsis also differ from those applicable to Hindus.

In recent years, there has been a push for gender equality in inheritance laws, with legal reforms seeking to grant daughters equal rights as sons in inheriting ancestral property. These changes reflect a growing recognition of women’s rights and their role in property ownership.

Asset Protection and Real Estate Investment:

Property ownership and investment in real estate are often considered a safe and lucrative option for many individuals. Property serves as a valuable asset, providing a sense of security and financial stability.

However, property owners must be vigilant about protecting their assets from fraud, encroachments, and unauthorized transactions. Proper documentation, registration, and periodic monitoring of property status are essential to safeguard against potential risks.

Conclusion:

Property law in India is a complex and dynamic field that plays a vital role in defining ownership rights, resolving disputes, and promoting economic development. As India continues to witness rapid urbanization and economic growth, it is crucial to address the challenges faced by property owners and tenants.

A robust and transparent land records system, effective tenancy laws, and fair land acquisition practices can contribute to a more equitable and efficient property ecosystem. Additionally, inheritance laws that promote gender equality and protect the rights of all heirs are essential for fostering a progressive and inclusive society.

With a well-balanced approach, India can pave the way for a property landscape that encourages responsible ownership, incentivizes real estate investment, and ensures the protection of the rights and interests of all stakeholders involved.

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Home » Must Knows » Legal » Transfer of Property Act, 1882

Transfer of Property Act, 1882

transfer of property indian law

In this article, we discuss the Transfer of Property Act (ToPA), which primarily sets the path for property transfer from one owner to another in India.

Table of Contents

What is Transfer of Property Act?

Under the Indian legal system, properties are divided into two categories – movable and immovable. The Transfer of Property Act (ToPA), 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings. One of the oldest laws in the Indian legal system, the Transfer of Property Act is an extension of the law of contracts and runs parallel to the succession laws. For those planning to transfer their immovable property, knowing the key aspects of the Transfer of Property Act is quite important.

What is transfer of property?

The law 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”. Living person also includes a company or association or body of individuals.

What are movable and immovable properties?

The difference between movable property and immovable properties lies in the stats of their physical movability. While movable properties can be carried from one place to another, the same is not true of immovable property. This state of immovability makes land and homes immovable property while cash, gold, share, etc. quality as movable property.

See also: Role of Karta in Hindu Undivided Family

Scope of Transfer of Property Act

Ways in which property transfer can take place.

Parties: Under the Transfer of Property Act, a transfer of property can be effectuated by an act of two or more parties or an act by the operation of the law.

Type of property: The Transfer of Property Act is applicable primarily on transfer of immovable property from one living being (inter vivos) to another. Also, the Act is applicable on property transfer by individuals, as well as by companies. However, the Transfer of Property Act is applicable to acts of parties and not on transfers applicable by the law.

Key facts about the Transfer of Property Act, 1882

What does ‘transfer’ mean under Transfer of Property Act ?

The term transfer includes transfer through sale, mortgage , lease, actionable claim, gift or exchange. The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable on the disposal of properties through wills and does not deal with cases of succession of property.

Types of property transfer under Transfer of Property Act

The Transfer of Property Act talks about six types of property transfers:

  • Actionable claim

See also: Everything you need to know about gift deed

Who is eligible to t ransfer property ?

Section 7 of the Transfer of Property Act lays down the rules, vis-à-vis people who are legally eligible to transfer their property.

‘Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable 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 extent and in the manner, allowed and prescribed by any law for the time being in force,’ the section reads.

Under the Indian Contract Act, 1872, a person must be at least 18 years of age and have a sound mind, to be eligible to enter into a contract.

Properties that cannot be transferred under Transfer of Property Act

In terms of immovable property, one cannot transfer a property that one expects to inherit in future, states the Transfer of Property Act.

Example: Ram expects that his maternal uncle, who had no children of his own, would bequeath his property to him and he transfers his right in the property to his son, the transaction would be held invalid.

A lessor can also not transfer his right to re-entry into a leased property, under the Transfer of Property Act.

Example: Ram leases his plot to Mohan and puts in a clause in the lease agreement that he would have the right to re-enter, if the rent is not paid for over three months, then, he alone will have the right to do so. He cannot pass on his right to re-enter to, say, Ganesh, his associate.

A real estate developer who has entered into a joint development agreement (JDA) with a land owner, to build a project on the latter’s land, is also not allowed to transfer the ownership of the project thus created under the provisions of the ToP Act. The implications of the JDA are restricted only to the development part of the project. The builder will have to get a general power of attorney to sell the project on behalf of the owner. Even in this scenario, the land owner will be the one providing the conveyance deed to the prospective buyers of the project.

The Act also prohibits the transfer of easement rights – a right to use someone else’s land or property in some way. These include the rights of way (passage), the rights of light, the right of water, etc. Example: Ram has a right of passage over the land belonging to Mohan. Ram decides to transfer this right of way to Ganesh. As this is a transfer of an easement right, it is invalid.

One can also not transfer one’s interest in a property, restricted in its enjoyment.

Example: If a house is lent to Ram for his personal use, he cannot transfer his right of enjoyment to Mohan.

A right to future maintenance is only for the personal benefit of the person to whom it is granted. Hence, this right cannot be transferred. A tenant having a non-transferable right of occupancy, cannot alienate or assign his interests in the occupancy. Similarly, a farmer of an estate that has defaulted in paying revenue, cannot assign his interest in the holding. The same is true of a lessee of an estate under the management of a court of wards.

Transfer of property through verbal/oral agreement under Transfer of Property Act 

Section 9 of the Transfer of Property Act says that property transfers could be affected though an oral agreement, unless the law explicitly states that a written agreement must be prepared to conclude the transaction.

In the case of immovable property of value less than Rs 100, such transfers may be made either through a registered instrument or by delivery of possession the property. In a recent ruling, the Karnataka High Court has clarified that the first provision of property transfer overlaps the second– this means property transfer can be made by a registered instrument in all cases. The high court has also stated that possession is enough to prove the ownership of a property that does not require registration under the rules prescribed under the Transfer of property Act.

This means that practically no immovable property can be transferred in the name of another individual without executing a written document.

However, oral arrangements do not typically work, except for partition of property among family members , where the family members can enter into a verbal agreement and divide the property for practical purposes. Exchange of property often requires written agreements for the transaction to be legally valid. This is true for sale, gifts, leases, etc.

Transfer of property to an unborn child under Transfer of Property Act 

A person who is planning to bequeath his property to more generations than one, will have to keep the provisions of the Transfer of Property Act in mind, while doing so. This becomes imperative to avoid legal complications at a later stage.

Under the provisions made in Section 13 and Section 14 of the Transfer of Property Act, the transfer of a property directly in favour of an unborn child is prohibited. For this to happen, the person intending to make the transfer will first have to transfer it in favour of a person who is alive on the date of transfer. The property will have to vest in the name of this person, till the time that the unborn child comes into existence. Basically, the interest of the unborn child in a property must be preceded by a prior interest.

Example: Suppose Ram transfers his property to his son Mohan and thereafter, to his unborn grandchild. In case he was not born before the death of Ram, the transfer would not be valid. The transfer would be valid, if the child is born before Ram passes away and the interest of the property vests in Mohan, till the child is born.

Responsibilities of seller during transfer of property under  

Section 54 of the Act talks about the responsibilities of the seller of a property:

To disclose to the buyer any material defect in the property. To provide to the buyer on his request for examination, all documents of title relating to the property. To answer to the best of his information, all relevant questions put to him by the buyer with respect to the property or the title. To execute a proper conveyance of the property , when the buyer tenders it to him for execution at a proper time and place, on payment or tender of the amount due in respect of the price. To take as much care of the property and all documents, which are in his possession, as an owner of ordinary prudence would take of such property, between the date of the contract of sale and the delivery of the property. To give the buyer possession of the property. To pay all public charges and rent accrued with respect to the property, up to the date of the sale. To discharge all encumbrances on the property then existing.

Duties of the buyer during transfer of property under Transfer of Property Act 

  • To disclose to the seller any fact about the property, of which the buyer is aware of but has reason to believe that the seller is not aware of and which materially increases the value of such interest.
  • To pay the purchase money to the seller at the time and place of completing the sale.
  • To bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller, where the ownership of the property has passed on to the buyer.
  • To pay all public charges and rent, which may become payable on the property, the principal monies due on any encumbrances subject to which the property is sold and the interest thereon afterwards accruing due, where the ownership of the property has passed on to the buyer.

Tenancy agreements governed under Transfer of Property Act arbitrable: SC

The Supreme Court, on December 14, 2020, ruled that landlord-tenant disputes can be resolved through arbitration, except when they are covered by specific forum created by the rent control laws. In a landmark verdict in the Vidya Drolia and others versus Durga Trading Corporation case, the SC has ruled that arbitral tribunals have the power to decide such cases under the Transfer of Property Act.

However, for these disputes to be resolved through arbitration, the rent agreement must have an arbitration clause – this means the decision to include a clause to this effect in a landlord-tenant agreement lies with the parties concerned.

See also: Landlord-tenant disputes arbitrable when not covered by rent control: SC

Latest update

Sale agreement, lawful possession of property protect buyers’ right: sc.

Read full coverage here .

Encroacher cannot claim benefit under Section 51 of Tranfer of Property Act: SC

An encroacher cannot be termed a transferee to seek benefit of Section 51 of the Transfer of Property Act, the Supreme Court has said. For Section 51 to apply, “the occupant of the land must have held possession under colour of title, his possession must not have been by mere of another but adverse to the title of the true owner, and he must be under the bone fide belief that he has secured good title to the property in question. Section 51 gives only statutory recognition to the above three things”, the apex court ruled.

What can be transferred under the Transfer of Property Act?

Any immovable property can be transferred under the Transfer of Property Act.

What are the modes of transfer of property?

According to the Transfer of Property Act, a property can be transferred through sale, exchange, gift, mortgage, lease and by creating an actionable claim.

How many sections are there in the Transfer of Property Act?

There are 137 sections in the Transfer of Property Act.

  • 😃   ( 37 )
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sunita mishra

An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.

In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel. [email protected]

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Rules relating to transfer of property

Rules relating to transfer of property

The Transfer of Property Act 1882 came into force on 1 st July 1882. It regulates the rules relating to the transmission of property between living persons in harmony with the rules affecting its devolution on death. It also completes the code of contract law as far as it relates to immovable property. This Act does not cover the entire dimension of transfer of property, it merely deals with the transfer of immovable property among living persons.

The Act is limited to the transfer of property by the act of parties that is, through sale, exchange, gift, actionable claim, mortgage and lease. It does not cover the transfer of property by the operation of law. It deals with the transfer of immovable property inter vivos that is, between living persons. It pertains to voluntary transfers executed by the act of parties and does not cover transfers by the operation of law in form of inheritance, insolvency, forfeiture or sale in execution of a decree. The Act has no application to the disposal of property by will and does not deal with cases of succession of property.

Rules relating to transfer of property under the Act

1. It is important to draw a line between immovable and movable property. Only an immovable property and in exceptional cases the movable property can be legally transferred under the provisions of this Act.

Section 3 of this Act lays down the meaning of immovable property. Immovable property means a property which does not include standing timber, growing crops (that is in the form of vegetable produce which have separate existence except for their produce) or grass. Hence the meaning is an exclusive definition.

In Babu Lal v. Bhawani Das and Ors [i] , the court held that section 3(25) of the General Clauses Act which defines immovable property can be applied to Transfer of Property Act 1882. Under the General Clauses Act immovable property is defined as one which includes land, benefits arising out of the land (eg. Right to catch fish), things attached to the land (like trees and shrubs having no independent use except for produce, for example, mango trees, orange trees)  or things that are permanently fastened to anything that is attached to the earth (like windows, doors, walls etc.). Additionally, the court held that the right of way, right to collect rent, a Hindu widow’s life interest of the income of the husband’s property, a factory, furniture, fixtures, windows, doors, office of a hereditary priest of the temple etc. are all immovable property.

The term movable property has not been defined in the Transfer of Property Act 1882. However, in general sense, movable property is a property which can be shifted or moved from one place to another without harm to its surroundings. The General Clauses Act defines movable property as property of every description except immovable property.

2. To validly transfer a property there are certain requirements to be complied with to safeguard the properties from future disputes and for evidentiary value. A property must be transferred by a valid instrument which is executed by the transferor in writing and is attested and registered. A transfer of property can be executed without a written instrument where writing is not expressly necessary under the law. There are some instruments under the Act which are required to be in writing though they may not be registered like, sale of immovable property of value of rupees 100 and above, exchange, gift etc. Also there are some which must be in writing and registered with the relevant authority like, sale of tangible immovable property of rupees 100 or more, charges, gift of immovable property etc. [ii]

Narasimha Rao and Anr. vs Sai Vishnu , [iii] The Court held that an unstamped instrument is not admissible as evidence even if it is for a collateral purpose. But if an instrument which is originally not stamped and if it is stamped subsequently it can be admitted as evidence although it is unregistered for a collateral purpose but the terms mentioned in the instrument cannot be taken into consideration.

3. Section 5 of the Act defines Transfer of Property. Transfer of property is an act by which a living person conveys property in present or future to one or more living persons or to himself or to himself and one or more living persons. The term person is not restricted to human beings but include a company, association of persons and body of individuals. Thus for a valid transfer, there must be an act of conveyance by living persons. It can be a transfer of an entire interest in a property or partial interest.

Prethi Singh v. Ganesh [iv] the transfer of property includes a property situated outside India where the Act does not apply. The rights and liabilities of the parties in such a case will be determined by the provisions of the Act. It is immaterial that the property is situated outside the Indian territory.

4. There are different kinds of transfer of property under the Act. Sale is defined as the transfer of ownership of a property in exchange for a price paid or promised or part paid or part promised. Exchange is when two people mutually transfer the ownership of one thing for the ownership of another neither thing or both the things being money only, the transaction is called an exchange. The third form is a gift, gift means a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person to another accepted by the donee. Such an acceptance must be made during the lifetime of the donor and while he is still capable of giving.

The next form is mortgage, it is a transfer of an interest in specific immovable property to secure the payment of money advanced or to be advanced by way of loan or an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. Lease is a transfer of immovable property to enjoy such property for a certain time or in perpetuity in consideration of a price paid or promised or money or share of crops or service or any other valuable thing to be rendered periodically or on specified occasions to the transferee by the transferor who accepts the transfer on such terms. Lastly actionable claim is a claim to any debt other than a debt secured or any beneficial interest in immovable property by a mortgage or by hypothecation or pledge of movable property not in possession of the claimant. 

5. Section 6 lays down 13 kinds of property which cannot be transferred, other than those enumerated below all kinds of property can be transferred.

a. The chance of heir-apparent succeeding to an estate, called as spes successionis. Such a chance is not property as contemplated by that Act. It implies to a mere hope of succession.

b. The chance of a relation obtaining legacy on the death of a kinsman cannot likewise be transferred

c. Any other mere possibility of a like nature that is of a nature similar to those mentioned above cannot be transferred.

d. A right of re-entry cannot be transferred to anyone except the owner of the property affected thereby.

e. An easement apart from the dominant heritage cannot be transferred.

f. An interest in the property restricted in its enjoyment to the owner personally, for example, religious offices, services tenures, an inalienable raj etc. cannot be transferred.

g. A right to future maintenance in whatsoever manner arising secured or determined cannot be transferred.

h. A mere right to sue is not capable of being transferred. Claims for past mesne profits, for damages for breach of contract, for suing an agent for accounts and pre-emption are all mere rights to sue which cannot be transferred.

i. A public office or the salary of a public officer whether before or after it has become payable cannot be transferred.

j. Stipends allowed to military, naval, air force and civil pensioners of Government as well as political pensions cannot be transferred.

k. No transfer can be made which is opposed to the nature of interest affected thereby. Thus an attempted ‘transfer’ of a service inam by the Inamdar or a purported ‘transfer’ of res nullius like air or water from a river, will be void.

l. No transfer can be made of an unlawful object or consideration.

m. Lastly, no transfer can be made to a person who is legally disqualified to be a transferee. [v]

The transfer of property cannot be restricted by judgment or on any direction given, it can only be done so by the provisions of law [vi]

6. Persons competent to transfer

The transferor must be competent to contract and entitled to transfer property or authorized to dispose of transferable property which is not his own. Under section 7 of the Act, a person will be competent to transfer a property if he fulfils the necessary criteria under section 11 of the Indian Contract Act 1872. Under section 11 a person will be competent to contract when he fulfils the criteria of being a major that is one who has attained 18 years of age, of sound mind- who is capable of understanding the terms of the contract and its implications and can formulate a rational judgment and one who is not disqualified by law. Thus the following will be competent to transfer a property or authorized to dispose of transferable property which is not his own either wholly or partly and either absolutely or conditionally. A minor is a person who has not completed the age of 18 years. He cannot be a competent transferor but there is no provision in law disqualifying a minor to be a transferee. [vii]

7. Oral transfer

Oral transfer is a transfer of property which does not require it to be in writing. The law does not mandate for a compulsory requirement of a written instrument for executing such a transfer of property. To qualify as an oral transfer it should be expressly mentioned under the law. If there is no express mention of a written instrument necessary for transfer then the law will permit it to be made without writing and vice versa. [viii]

8. Transfer of future property how far valid-Section 5 of the Act defines Transfer of Property. Transfer of property is an act by which a living person conveys property in present or future to one or more living persons or to himself or to himself and one or more living persons. The transfer of property does not include transfer of future, non-existent property. Therefore a transfer of future property is not as much valid in India. But a conveyance of such property maybe valid as a contract to assign and then the property comes into existence, equity fastens upon the property and the contract to assign becomes a complete assignment. [ix]

Frequently Asked Questions  

What are the essentials of transfer of property.

1. The transfer of property must take place between two or more living persons

2. The property transferred must be transferable

3. The transfer must not be opposed to the nature of the interest affected thereby or for an unlawful object or consideration or to a person legally disqualified to be a transferee.

4. The transferor must be competent to contract and entitled to transfer property or authorized to dispose of transferable property which is not his own.

5. The transfer must be made in the mode prescribed by the Act. Thus all necessary attestation and registration must be complied with.

6. The transfer must not offend the rule against perpetuity

7. If on transfer an interest is created in favour of an unborn child subject to prior interest created by the same transfer, it must exhaust the whole of the remaining interest of the transferor.

8. If the transfer is conditional, the condition must not be illegal, impossible, immoral or opposed to public policy.

Edited by  Sakshi Agarwal

Approved & Published –  Sakshi Raje

[i] AIR 1912

[ii] Transfer of Property Act, section 9

[iii] 2005 (5) ALT 653

[iv] AIR 1951 All. 462

[v] Transfer of Property Act, section 6

[vi] KansingKalusingThakore And Ors vs RabariMaganbhaiVashrambhai AIR 2006

[vii] Raja Balwant Singh vs The Rev. Rockwell Clancy And Rao (1912) 14 BOMLR 42

[viii] Sarandaya Pillay v Sankarlinga Pillai AIR 1959 2 MLJ. 502

[ix] Purna v. Birma ILR 1939 2 Cal. 341

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Property laws in india: a suitable guide.

transfer of property indian law

The property laws in India have gone through a lot of changes and developments over time and are regulated through various acts and regulations. The Constitution, lays down the structure of property laws in the country ensuring that individuals have the authority to own, possess and dispose of property as a constitutional right. The Transfer of Property Act 1882 (TPA) serves as the primary legislation governing property law in India. Over time these laws have been regularly updated to keep up with the dynamic environment of our legal system. In this article we aim to provide an overview of the evolution of property law in India explore, types of properties and shed light on the laws that currently shape the dynamic landscape of property rights and regulations.

What is Property and Property Law?

Property, in a legal sense means any form of interest or right over in a thing. That thing can be tangible/intangible, moveable/immovable etc.

Property law is the set of rules and regulations that governs how a property can be acquired, owned utilized and alienated. It encompasses a range of subjects such as transfer of property procedures, contract act principles and inheritance laws, among others.

History of Property Law in India

Property is one of the fundamental elements of socio-economic system in India. For a long time, the justice system was based on morality, conscience but it lacked uniformity. This system led to a lot of crimes even in the property scenario. Property law was at an advancement phase during the Mughal age. It instilled Zamindari System into the land tenure by the Mughals. This system made land owned by a king to give it on lease to zamindars who in turn gave the land for cultivation to the farmers and collected taxes from them. The British East India company started collecting lands in India during the 18th-century. There were several rebellions by peasants as the company’s land acquisition policies were characterized on grounds of arbitrariness and exploitation. In 1885, The Indian National Congress advocated for land reforms in India. The government of “Independent India” promulgated several legislations relating to land reforms. The Zamindar system was finally eliminated through Zamindari Abolition Act, 1956 and the people that cultivated the land now had ownership rights over it.

In the case of Vineeta Sharma vs Rakesh Sharma (2020) 9 SCC 1 , the apex court held that a woman/daughter also has an equal right over her ancestral property. Since its independence, property law in India has changed a lot. With the changing trends, the government has come up with several new laws and regulations.

What are the types of Property Law in India?

There are 3 major acts that deal with Property Laws in India

1. Transfer of Property Act, 1882:

The Transfer of Property Act is a law, in India that governs and establishes guidelines and procedures for the transfer of property more specifically, immovable property like land and real estate. It sets out the principles and procedures for transferring property through means such as sale, mortgage, lease, gift and exchange. Its primary purpose is to facilitate the transfer of property, from one individual to another.

Related Book:

The Transfer of Property Act

transfer of property indian law

This exceptional piece of work authored by Sir Mulla and published by LexisNexis provides a commentary, on the TPA. This esteemed legal masterpiece remains the go to reference for scholars and practitioners. This new and updated edition contains key features like landmark judgements, legal development etc.

2. Partition Act of 1893:

The Partition Act of 1893 is significant, in the realm of property law because it addresses the challenges that arise when properties owned jointly need to be divided among its co-owners. This legislation provides a framework that helps both courts and individuals navigate the complexities of partition cases ensuring a fair distribution of property rights.

Partition Act, 1893

transfer of property indian law

LexisNexis’s bare act on Partition Act, 1893 contains all provisions and amendments of the Act. It stands tall amidst others by providing Model Specimens of Partition deed which is must have for lawyers, practitioners and common individuals too.

3. Indian Succession Act, 1925:

The succession law sets out the guidelines, for how property’s distributed when someone dies either with or without a will. The Indian Succession Act of 1925 specifically deals with cases involving a written will (testamentary succession). However, if there is no written will, the laws regarding intestate succession or unwilled succession outlined in the Hindu Succession Act of 1956 would apply.

The Indian Succession Act

transfer of property indian law

Book: Paruck and K. Kannan’s Book on Indian Succession Act published by LexisNexis is the most comprehensive and an exceptional piece on Indian Succession Law. Everything has been elucidated in a clear and systematic manner. The book aims to cover all judgments from the Supreme Court and various High Courts and includes updates reflecting any changes in legislation.

Types of Property under Transfer of Property Act, 1882

Movable property:.

It is the type of property which is not affixed to land can be moved from one place to another. According to Section 2(9) of the Registration Act of 1908, movable property includes “standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.”

Immovable Property :

Things rooted or attached to the earth and which are not reasonably capable of being moved from one place to another are called immovable property. Section 2(6) of the Registration Act of 1908 states that an “Immovable property means and includes land, buildings, hereditary allowances, rights to ways, lights, or any other benefit to arise out of the land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.” 

Other types of Property in India

Intellectual property:.

As per the definition of WIPO, Intellectual property (IP) encompasses forms of creations including inventions, literature and art designs as well, as symbols, names and images. The legal protection of IP involves patents, copyrights and trademarks that empower individuals to gain acknowledgment or financial rewards for their creative creations or inventions using their intellect.

“ Law Relating to Intellectual Property ” by Sreenivasulu N S

transfer of property indian law

Sreenivasulu’s book on Law relating to IP covers a broad range of topics and provides an examination of intellectual property law exploring topics such, as patents, copyright, designs, trademarks, trade secrets, GI’s, semiconductor chips and plant varieties. The author aims to guide readers through the complexities of intellectual property law, in regions including India, USA, UK.

Corporeal and Incorporeal Property:

Corporeal property is a property wherein the person has right over ownership of a tangible or material things, meaning, those things can be touched or seen, for e.g- cars, devices etc, whereas, Incorporeal property refers to ownership rights over property which cannot be seen or touched i.e. Intangible in nature. For e.g- IPR, easements etc.

Public and Private Property:

Public property is owned by the government and all the rights over it are available to the government. The government mainly uses it for public purposes, e.g. Parks, public hospitals etc. On the other hand, Private Property is a property whereby all the rights vested with the property are with a private individual other than government. The private property may be his own house, his garden, car etc.

Best Books to know about Property Law in India

 “ Property Laws ” by Prof (Dr) AP Singh & Dr Ashish Kumar Srivastava”:

transfer of property indian law

This book is an exceptional read for students, especially UG and PG students. It explores the development of aspects of property law by providing explanations of the important and intricate doctrines and principals involved. Additionally, it also covers the legal considerations associated with these concepts.

This book is a comprehensive guide on all types of Intellectual Property, including but not limited to copyrights, trademarks. It is an analytical take on judicial, political viewpoints of various intellectual property. There are numerous case laws and the Author attempts to guide people from various countries like USA, UK, India.

“ Textbook on the Transfer of Property Act ” by Dr Avtar Singh & Prof (Dr) Harpreet Kaur:

transfer of property indian law

This book provides an analytical take of the TPA, 1882. It offers a thorough explanation of the concepts through illustrations and case laws. Towards the conclusion of each chapter, the book includes summaries, FAQs and practical exercises, with solutions. This comprehensive approach aims to provide an understanding of the subject matter and is ideal for law students and practitioners.

To conclude, the property laws in India plays a vital role in regulating and safeguarding the rights of individuals concerning to land and real estates. With the rapid evolution of time, these laws have evolved to curb the diverse needs of a rapidly transforming society. As India is progressing way faster than it ever did before, a dynamic and responsive framework will be pivotal in fostering sustainable development, social justice, and harmony within the dimension of property ownership and transactions.

  • What is the basic law of property?

The Transfer of Property Act, 1882 (TPA) is the basic law of property.

  • Who is the legal owner of land in India?

The person who name is registered in the land records is the legal owner of such land.

  • Which law is related to property?

The TPA, Partition Act and Indian Succession Act.

  • How do you prove ownership of a property in India?

Sale Deeds, Khata Certificates, Land Registration etc.

  • Who is the owner of father’s property in indian law?

Daughters and Sons, both have the legal right over their father’s property.

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Concept of Transfer of Property

  • Subject-wise Law Notes Transfer of Property Act
  • April 6, 2020

Transfer Of Property Act

Transfer of property is an “ act by which a living person can conveys property”. The transfer of property act 1882 is an the Indian legislation that governs and regulates the transfer of property in the Indian subcontinent. The act covers movable, immovable, tangible and intangible property. The Act deals with Sale, Mortgage , Lease, Exchange, and gift.

Introduction to Concept of Transfer of Property

Transfer of property is an “ act by which a living person can conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more or other living persons, and to transfer property is to perform such act.”

The transfer of property act 1882 is an the Indian legislation that governs and regulates the transfer of property in the Indian subcontinent. It was enacted on the 17th of February 1882 and officially came into force on the 1st of July 1882. The act covers movable and immovable , tangible and intangible assets (copyrights, trademarks and patents). The Act deals with the following kinds of transfers:

(2) Mortgage,

(4) Exchange, and

Essentials of a valid transfer 

1.It must be inter-vivos

Section 5 of the act stipulates that the transfer must be inter vivos. That is to say that the transfer must be made between living persons. Both the transferrer and the transferee must be living at the time of transfer. Living persons also include company, corporate or association.

2. The property must be transferable

Sections 6 lays down that the following transfers invalid.

  • The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. Thus if A is an heir to the estate of B ,then, the estate thus becomes incapable of transfer.
  • A mere right of a re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. X grants the lease of a plot to Y for a period of 5 years. On the expiry of 5 years, X grants the right of re-entry along with the property to Z. The transfer is valid.
  • An easement cannot be transferred apart from the dominant heritage.” Dominant Heritage means inheriting a right over another’s property without owning it. Thus if M owns a piece of land and N has right of way over it. N has dominant heritage over M’s land and his land can’t be transferred apart from the dominant heritage.
  • An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. If A is a tenant at B’s house, he cannot transfer to C his right of enjoyment over B’s house.
  • A right to future maintenance, in whatsoever manner arising secured or determined, cannot be transferred. If A is entitled to future maintenance by B, she/he cannot transfer this entitlement ot another, C.
  • A mere right to sue cannot be transferred. If H has the right to sue G over a contract, he may not transfer his right to sue to anybody else.
  • A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.
  • Stipends allowed to military, naval, air force and civil pensioners of the government and political pensions cannot be transferred, pension means a periodical allowances or stipend granted not in respect of any right of office but on account of part services of particular merits. Section 60 of CPC also exempts a pension from attachment in execution of degree against the pension holder.
  • No transfer can be made (1) in so far as it opposed to the nature of the interest affected thereby, or (2) for an in so far unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be a transferee.
  • Nothing in this section shall be deemed to authorise a tenant having an un transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, on the lessee of an estate, under the management of a court of wards to assign his interest such as such tenant farmer or lessee.

3. No transfer can be made

  • (1) in so far as it is opposed to the nature of the interest affected thereby, or
  • (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or
  • (3) to a person legally disqualified to be transferee; 7[(i) Nothing in this section shall be deemed to authorise 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.]

4.Section 7 deals with persons competent to transfer:

Every person competent to contract under section 11 of the Indian contract act(i.e he must be of sound mind, must not be disqualified in other words insolvent and alien enemy.

Sadiq Ali Khan Vs. Jai kishore,1928 . [1]

Privy Council observed that a deed executed by a minor was nullity. Principle of estoppel cannot be applied to a minor. A minor is not competent to transfer yet a transfer to a minor is valid .

Amina Bibi vs Saiyid Yousuf 1922.All. 449. [2]

In this case it was held that a contract made by lunatic is void under section 11 of the Indian Contract Act, and so also, transfer by him of his property is void.

K Kamama Vs. Appana [3]

U/s. 11 of Hindu minority and guardianship Act, 1956 a defacto guardian is merely a manager and cannot dispose off minor’s property. In this case a defacto guardian sold property of a minor, the court declared the sale invalid.

Entitled to transferable property (a person who is the absolute owner of the property and is free from encumbrances can transfer the same) or

Authorized to dispose of transferable 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 extent and in the manner, allowed and prescribed by any law for the time being in force.

Hussiaa Banu v. Shivanarayan [4] ,

it was held that where one of the parties to a settlement gives up a claim to receive a certain sum of money from the other, in consideration of the latter’s given up the right to certain property claimed by him, it would amount to a transfer.

A transfer of property passes 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. The transfer of a property creates a new interest for the transferee. If the transfer falls short of this criterion it may not be deemed to a valid transfer under the transfer of property act 1882.

[1] (1928) 30 BOMLR 1346

[2] 70 Ind Cas 968

[3] AIR 1973 AP 201

[4] AIR 1968 MP 307,

For more articles on Transfer of Property Act, Click Here .

For law notes, Click Here.

Author Details: Aarthi V.

The views of the author are personal only. (if any)

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Union of India - Act

The transfer of property act, 1882, act 4 of 1882.

  • Published in Gazette 4 on 1 January 1980
  • Assented to on 1 January 1980
  • Commenced on 1 January 1980
  • [This is the version of this document from 1 January 2003.]
  • [Note: The original publication document is not available and this content could not be verified.]
  • [Amended by The Transfer Of Property (Amendment) Supplementary Act, 1929 (Act 21 of 1929) on 1 January 1929 ]
  • [Amended by The Registration And Other Related Laws (Amendment) Act, 2001 (Act 48 of 2001) on 1 January 2001 ]
  • [Amended by The Transfer Of Property (Amendment) Act, 2002 (Act 3 of 2003) on 1 January 2003 ]

Chapter I Preliminary

1. short title.—, 2. repeal of acts.—, 3. interpretation clause.—, 4. enactments relating to contracts to be taken as part of contract act and supplemental to the registration act.—, 5. “transfer of property” defined.—, chapter ii of transfers of property by acts of parties, 6. what may be transferred.—, 7. persons competent to transfer.—, 8. operation of transfer.—, 9. oral transfer.—, 10. condition restraining alienation.—, 11. restriction repugnant to interest created.—, 12. condition making interest determinable on insolvency or attempted alienation.—, 13. transfer for benefit of unborn person.—, 14. rule against perpetuity.—, 15. transfer to class some of whom come under sections 13 and 14.—, 16. transfer to take effect on failure of prior interest.—, 17. direction for accumulation.—, 18. transfer in perpetuity for benefit of public.—, 19. vested interest.—, 20. when unborn person acquires vested interest on transfer for his benefit.—, 21. contingent interest.—, 22. transfer to members of a class who attain a particular age.—, 23. transfer contingent on happening of specified uncertain event.—, 24. transfer to such of certain persons as survive at some period not specified.—, 25. conditional transfer.—, 26. fulfilment of condition precedent.—, 27. conditional transfer to one person coupled with transfer to another on failure of prior disposition.—, 28. ulterior transfer conditional on happening or not happening of specified event.—, 29. fulfilment of condition subsequent.—, 30. prior disposition not affected by invalidity of ulterior disposition.—, 31. condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen.—, 32. such condition must not be invalid.—, 33. transfer conditional on performance of act, no time being specified for performance.—, 34. transfer conditional on performance of act, time being specified.—, 35. election when necessary.—, 36. apportionment of periodical payments on determination of interest of person entitled.—, 37. apportionment of benefit of obligation on severance.—, 38. transfer by person authorised only under certain circumstances to transfer.—, 39. transfer where third person is entitled to maintenance.—, 40. burden of obligation imposing restriction on use of land.—, 41. transfer by ostensible owner.—, 42. transfer by person having authority to revoke former transfer.—, 43. transfer by unauthorised person who subsequently acquires interest in property transferred.—, 44. transfer by one co-owner.—, 45. joint transfer for consideration.—, 46. transfer for consideration by persons having distinct interests.—, 47. transfer by co-owners of share in common property.—, 48. priority of rights created by transfer.—, 49. transferee’s right under policy.—, 50. rent bona fide paid to holder under defective title.—, 51. improvements made by bona fide holders under defective titles.—, 52. transfer of property pending suit relating thereto.—, 53. fraudulent transfer.—, 53a. part performance.—, chapter iii of sales of immoveable property, 54. “sale” defined.—, 55. rights and liabilities of buyer and seller.—, 56. marshalling by subsequent purchaser.—, 57. provision by court for encumbrances and sale freed therefrom.—, chapter iv of mortgages of immoveable property and charges, 58. “mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgage-deed” defined.—, 59a. references to mortgagors and mortgagees to include persons deriving title from them.—, 60. right of mortgagor to redeem.—, 60a. obligation to transfer to third party instead of re-transference to mortgagor.—, 60b. right to inspection and production of documents.—, 61. right to redeem separately or simultaneously.—, 62. right of usufructuary mortgagor to recover possession.—, 63. accession to mortgaged property.—, 63a. improvements to mortgaged property.—, 64. renewal of mortgaged lease.—, 65. implied contracts by mortgagor.—, 65a. mortgagor’s power to lease.—, 66. waste by mortgagor in possession.—, 67. right to fore-closure or sale.—, 67a. mortgagee when bound to bring one suit on several mortgages.—, 68. right to sue for mortgage-money.—, 69. power of sale when valid.—, 69a. appointment of receiver.—, 70. accession to mortgaged property.—, 71. renewal of mortgaged lease.—, 72. right of mortgagee in possession.—, 73. right to proceeds of revenue sale or compensation on acquisition.—, 74. repealed, 75. repealed, 76. liabilities of mortgagee in possession.—, 77. receipts in lieu of interest.—, 78. postponement of prior mortgagee.—, 79. mortgage to secure uncertain amount when maximum is expressed.—, 80. repealed, 81. marshalling, securities.—, 82. contribution to mortgage-debt.—, 83. power to deposit in court money due on mortgage.—, 84. cessation of interest.—, 85. repealed, 86. repealed, 87. repealed, 88. repealed, 89. repealed, 90. repealed, 91. persons who may sue for redemption.—, 92. subrogation.—, 93. prohibition of tacking.—, 94. rights of mesne mortgagee.—, 95. right of redeeming co-mortgagor to expenses.—, 96. mortgage by deposit of title-deeds.—, 97. repealed, 98. rights and liabilities of parties to anomalous mortgages.—, 99. repealed, 100. charges.—, 101. no merger in case of subsequent encumbrance.—, 102. service or tender on or to agent.—, 103. notice, etc., to or by person incompetent to contract.—, 104. power to make rules.—, chapter v of leases of immoveable property, 105. lease defined.—, 106. duration of certain leases in absence of written contract or local usage.—, 108. rights and liabilities of lessor and lessee.—, 109. rights of lessor’s transferee.—, 110. exclusion of day on which term commences.—, 111. determination of lease.—, 112. waiver of forfeiture.—, 113. waiver of notice to quit.—, 114. relief against forfeiture for non-payment of rent.—, 114a. relief against forfeiture in certain other cases.—, 115. effect of surrender and forfeiture on under-leases.—, 116. effect of holding over.—, 117. exemption of leases for agricultural purposes.—, chapter vi of exchanges, 118. “exchange” defined.—, 119. right of party deprived of thing received in exchange.—, 120. rights and liabilities of parties.—, 121. exchange of money.—, chapter vii of gifts, 122. “gift” defined.—, 124. gift of existing and future property.—, 125. gift to several of whom one does not accept.—, 126. when gift may be suspended or revoked.—, 127. onerous gifts.—, 128. universal donee.—, 129. saving of donations mortis causa and muhammadan law.—, chapter viii of transfers of actionable claims, 130. transfer of actionable claim.—, 130a. repealed, 131. notice to be in writing, signed.—, 132. liability of transferee of actionable claim.—, 133. warranty of solvency of debtor.—, 134. mortgaged debt.—, 135. assignment of rights under policy of insurance against fire.—, 135a. repealed, 136. incapacity of officers connected with courts of justice.—, 137. saving of negotiable instruments, etc.—, 27. hen. viii c. 10 - uses - the whole., 13. eliz., c. 5 - fraudulent conveyances - the whole., 27. eliz., c. 4 - fraudulent conveyances - the whole., 4. wm and marry, c. 16 - clandestine mortgages - the whole., 1. of 1877 - specific relief - in section 35 and 36, the word "in writing"..

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Understanding the nexus between Real Estate Property Laws and Regulations under the Transfer of Property Act

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Procedural Aspects Under The Real Estate Laws

  • Completion certificate: This should be obtained by the buyer of a property and this is usually obtained by the municipal authority when a project is completed.  
  • Occupancy Certificate: This certificate which is issued by the local government proves that the building is fit enough for the occupancy of the buyer. This is a fundamental document much needed for day-to-day essentials.  
  • Building plan: This essentially produces the blueprint of a particular property if it is housing in nature. The buyer needs to check for the proper registration and approval of the same from the local authorities.  
  • Encumbrance certificate: This certificate specifies the current monetary and legal obligations. It mainly shows the status of current ownership and the details regarding the transfer of ownership and the liabilities thereon.  
  • No objection certificate: It doesn’t have a legal necessity but can be obtained as a form of societal assurance.

Collaborations Of Real Estate Property Laws

Impact of real estate regulatory authority act 2016.

  • Mulla, The Transfer of Property Act, 10 edn, 2006
  • Poonam Pradhan Saxena, Property Law, 3rd edn, 2020
  • Saranya Mishra, Real Estate Act: Scrutinising Regulation Plans for Reality, 2016 SCC OnLine Blog OpEd 6-
  • Abhinav Kumar, FDI in Real Estate in India: Law, Policy and Practice, (2016) 9-10 NSLR 53
  • Raymond Keng Wan NG, Impact of Rera 2016 and its Ramifications - A Consumer Centric Analysis, 6 IJCLP (2018)
  • A.R. Biswas, PROPERTY IN A CHANGING SOCIETY
  • ARUN K MISRA and NAGENDRA GOEL, Economic and Political Weekly , JUNE 21, 2014, Vol. 49 Legislation for the Real Estate Sector,
  • Geetanjali Aman Construction Vs Hrishikesh Ramesh Paranjpe Complaint Number 0000691 [Maha RERA]
  • (De laws in India at this point mandates the builders and promoters to disclose all the material information regarding the project and the builders if registered. Wrong declarations even by the builder can make him liable for the statement made under the real estate property laws. 7, 2019, 10:10 AM),http://indianexpress.com/article/what-is/what-is-rera-and-how-will-it-help-homebuyers-4635705/
  • Ram Lakhan Singh V DY. Director of Consolidation and others (1986) Supp SCC 682
  • Haryana Financial Corporation and another V Rajesh Gupta (2010) 1 SCC 655
  • JP Builders and another V A Ramadas and another (2011) 1 SCC 429
  • the Punjab Apartment and property regulation act 1995
  • the Uttar Pradesh Apartment(Promotion of Construction, Ownership and Maintenance) Act, 2010
  • The Karnataka Ownership Flat (Regulations of promotion of Construction, Sale, Management and Transfer) Act, 1972
  • the Maharashtra Ownership( Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963
  • Manish Kumar V Union of India (2021) SCC Online SC 30
  • Section 3(2)(a) The Real Estate (Regulation and Development) Act, 2016
  • Consumer Case No. 701 of 2015
  • AIR 1986 SC 180;(1985)3 SCC 545.
  • 2011 (102) CLA 336 (CAT) DLF Ltd v. Belaire Owners Association
  • Maharashtra Ownership Flat Act 1963
  • Section 12 of The Act
  • Section 17 of the Registration Act, 1908 which provides compulsory registration of the immovable property.
  • The Real Estate (Regulation and Development) Act, 2016
  • 2018/GN/Centrik/1/HRERA
  • Ramesh Chand V Nand Lal (2019) 5 SCC 807
  • IREO Grace Realtech Pvt. Ltd V Abhishek Khanna and Others (2021) SCC OnLine SC 14
  • Shreeram Chaurasia v NHK Developers LLP3 2018/MH/Centrik/49/MAHARERA
  • Section 35(2)’,The Real Estate (Regulation and Development) Act, 2016’
  • (2018) 4 ADJ 406
  • RAJ-RERA-C-2020-3622

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Property Law - Notes, Case Laws And Study Material

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Property Law

Property Law- The Transfer of Property Act came into existence in 1882 . Before that, the transfer of immovable property was governed by English law and equity principles. This Act deals with the transfer of property inter vivos , i.e., a transfer between living persons. It contains the transfer of both movable and immovable property, but a major portion of the enactment applies to the transfers of immovable properties only.

Legal Bites' study material on the property laws of India is divided into six modules and an additional section containing related articles. The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically.

Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of mortgage , lease and gifting .

Important articles and study material on Property Law – Click on the link to Read

Module 1: concept of property and general principles regarding transfer of property:.

  • Transfer of Property Act: Introduction and Important Definitions
  • Transferable Property
  • 1000+ Detailed Questions MCQ Test Series for Competitions (Redirect to Law Aspirants)
  • Restraints on Alienation
  • Transfer to an Unborn Person
  • Rule against Perpetuity
  • Vested and Contingent Interest
  • Conditional transfer

Important Books and Practice Tests (Must Have)

  • EBC's Law of Transfer of Property by Vepa P. Sarathi, Mallika Taly

Module 2: General Principles Governing Transfer of Immovable Property

  • Doctrine of Priority
  • Transfer by Ostensible Owner
  • Rule of Estoppel
  • Doctrine of Lis Pendens
  • Fraudulent transfer
  • Rule of Part Performance
  • Actionable Claim

Module 3: Sale

  • Sale of Immovable Property: Explained As Under TPA, 1882
  • Right and liabilities of buyer and seller
  • Encumbrances And Court Sale

Module 4: Mortgage

  • Mortgage: Meaning, Explanation And Kinds
  • Rights and Liabilities of Mortgagor and Mortgagee
  • Marshalling, Contribution and Subrogation
  • Charge on Property As Explained Under Transfer of Property Act

Module 5: Lease

  • Lease: Introduction, Concept, Essentials and Conditional Leases
  • Rights and Liabilities of Lessor and Lessee
  • Determination of lease
  • Easement: Concept, Essential, Types | Explained
  • Difference between Lease and License

Module 6: Gift

  • Concept and Kinds of Gift
  • Universal Donee | Section 128
  • Exchange Explained As Under Transfer Of Property Act, 1882

Other Articles:

  • Doctrine of Subrogation under the Transfer of Property Act, 1882
  • Status of an Unborn Child in the Indian Legal System
  • Immovable property – concept and definition
  • Transfer of Property – Meaning and Types
  • Restraints on Transfer – Section 10
  • Right of Redemption
  • Concept of Exchange under Transfer of Property Act: An Eternal Practice from the Ancient Times to Modern Society

8 Important Cases of Property Law

Property Law Question Answer Series: Important Questions for Exams

1. Property Law Question Answer Series 1

2. Property Law Question Answer Series 2

3 . Property Law Question Answer Series 3

4. Property Law Question Answer Series 4

5. Property Law Question Answer Series 5

6. Property Law Question Answer Series 6

7. Property Law Question Answer Series 7

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Home » Blog » inheritance law » Rights of legal heirs and property inheritance law in India

Rights of legal heirs and property inheritance law in India

Rights of legal heirs and property inheritance law in India

Property is one of the essential elements a person makes during his lifetime for many purposes like investment or an essential shelter requirement. Property can be of two types self-acquired property and ancestral property.

Self-acquired property is the property that a person acquires or purchases with his own money and income. Ancestral property is the property acquired by a  great-grandfather  and passed on to the next generation  up to the   great-granddaughter/son . The rights of legal heirs to inherit in respect of these two properties are different and shall be discussed in detail in the subsequent paragraphs.

  • The property should pass on to the actual legal heirs of a person.
  • The property is not possessed by trespassers.
  • The Legal heirs are able to enjoy what is left by their ancestors.

Table of Contents

What is the inheritance of property in India?

Property Inheritance Law states transferring a person’s property, debts, titles, rights, and duties to another person after their death. The property in India can be inherited in two ways, i.e., through a Will or laws of succession when a person dies intestate (without making a Will).

When a person passes away by making a Will , his property devolves upon the beneficiaries of the Will after his death. They can get the property transferred into their name by showing such Will in the appropriate Court of Law/authorities.

When a person passes away and doesn’t make a Will, then his property is distributed between his surviving legal heirs as per the laws of succession. Firstly, upon class one legal heirs, and if there are no legal heirs in class one category, then the property is distributed to the legal heirs in class two category and so on.

In India, the distribution of property is governed by the Hindu Succession Act of 1956 and the Amendment to that made in 2005.

Recommended reading: All About Title Search of Property in India

Types of property that can be inherited 

Ancestral property.

Under the property inheritance law, i.e., Hindu Succession Act, a son and daughter have the right to ancestral property by birth. A father cannot dispose of such property by excluding his rightful legal heirs. A father cannot transfer/ sell or gift such property according to his discretion to any third person. In other words, he cannot deprive a daughter or a son of their share in the ancestral property. Children have a right to inherit such property by the time of their birth itself. In some situations, if a father has transferred such property in the name of a third person, the children reserve the right to object.

Self Acquired Property

In the case of a self-acquired property of a father or mother, their son or daughter has no birth right over it. Unlike the ancestral property, a father, by his discretion, has a right to gift the property or Will it to anyone he desires, and the daughter or the son will not have a right to raise a protest. According to Hindu Law, children can only claim a share out of the father’s ancestral property and not in the self-acquired property. However, after the father’s death, if he has made Will transferring the property or a share in such property to only one of his sons or daughters, others cannot challenge such transfer as it was done by discretion pertaining to the self-acquired property of the father.

Property Inheritance under Hindu Law can be classified as under

  • Testamentary succession – the process of distribution of property when a person dies by making a Will.
  • Intestate Succession – When a person dies without making a Will, his property will be distributed by Operation of Law.

Distribution of property 

Division of property when father dies intestate.

At the very first division happens upon class- I legal heirs. In case there are no class I legal heirs, then upon class II legal heirs. If there is no heir of these two classes, then upon the Agnates of the deceased, there is no Agnate, then upon the Cognates of the deceased.

Recommended reading: Tax advisory & services in India

Division of property when mother dies intestate

When a Hindu female dies Intestate, the property devolves as follows:

Firstly, upon sons, daughters and the husband, Secondly, upon heirs of husband. Thirdly, upon the mother and father of the deceased, Fourthly, upon heirs of father, Lastly, upon heirs of the mother.

Rights of legal heirs under Hindu law

Legal heirs of hindu male , hindu succession act “heirs in class i”.

  • son of a predeceased son
  • daughter of a predeceased son
  • son of a predeceased daughter
  • daughter of a predeceased daughter
  • widow of a predeceased son

Recommended reading: Adverse possession and Its Legal requirements to claim property in India

Hindu Succession Act “Heirs in Class II”

II. (1) Son’s daughter’s son (2) son’s daughter’s daughter (3) brother (4) sister

III. (1) Daughter’s son’s son (2) daughter’s son’ daughter (3) daughter’s daughter’s son (4) daughter’s daughter’s daughter

IV. (1) Brother’s son (2) sister’s son (3) brother’s daughter (4) sister’s daughter

V. Father’s father; father’s mother

VI. Father’s widow; brother’s widow

VII. Father’s brother; father’s sister

VIII. Mother’s father; mother’s mother

IX. Mother’s brother; mother’s sister

Agnates 

When two people are related to each other by blood or adoption, but exclusively through males, they are called relatives to each other.

There must be a male person between each line of relation. It must be remembered that Agnate’s relationship is by blood and not marriage.

Cognates 

When two people are related by blood or adoption, but not entirely through a male relationship, if two people are related through a female, they are said to be Cognates.

Recommended reading: Registry of Immovable Property in India for NRIs

Rights of legal heirs under Muslim law?

Indian Muslims are governed by property inheritance law, i.e., The Muslim Law (Shariat) Application Act 1937. It deals with marriage, succession, inheritance and charities among Muslims. As per Section 2 of the Act, however, matters relating to the Succession and Inheritance of a Mohammedan are governed by Mohammedan Personal Law, commonly known as the Muslim Personal law. Thus, upon the death of a Muslim male or female in India, his or her estate will devolve upon the successors as per their personal law.

Under the Muslim law, here are three categories of heirs –

Residuaries

Distant kindred, sharers /quranic heir.

They are those heirs who are entitled to a prescribed share of the inheritance. They are also called Quranic Heirs. There are 12 sharers in Muslim law. They Are

  • son’s daughter
  • true grand-father
  • true grandmother
  • Full Sister
  • Consanguine Sister
  • Uterine sister
  • Uterine brother

First, the assets are distributed amongst the Sharers as per the prescribed share.

They do not have any prescribed share in the inherited property, but they are eligible to inherit whatever is left after giving away the part of Sharers. Residuary include:

  • Son’s son HLS
  • Son’s daughter HLS
  • True Grand-father HHS
  • Full brothers
  • Full sisters
  • Consanguine brothers
  • Consanguine sister
  • Full brother’s son
  • Consanguine brother’ son
  • Full brother’s son’s son
  • Consanguine brother’s son’s son
  • Full paternal uncle;
  • Consanguine paternal uncle
  • Full Paternal uncle’s son
  • Consanguine Paternal uncle’s son
  • Full Paternal uncle’s son’s son
  • Consanguine Paternal uncle’s son’s son
  • Descendant of Paternal uncle’s son’s son’s son
  • Descendant of Consanguine Paternal uncle’s son’s son’s son
  • Descendant of remoter true grandfather HHS.

These are all those people who are related by blood to the deceased Muslim owner of the property but do not fall into the category of Sharer or Residuary. In general cases, the distant kindred are entitled to inherit the property only in the absence of the sharers or Residuary. Distant kindred comprise –female agnates and male and female cognates.

Recommended reading: Model Tenancy Act For NRIs

Property inheritance under Muslim personal laws

Further, there are the  three stages of succession  in Muslims Personal law.

First Stage:  deals with Duties that need to be performed on the demise of an Indian Muslim.

Basically, there are four duties which need to be performed: –

  • Payment of Funeral Expenses
  • Payment of Wages
  • Will – execution of Will up to the permitted share

These must be deducted before the estate is divided amongst the heirs and successors.

Second Stage:  deals with the distribution amongst HEIRS AND SUCCESSORS- The actual distribution amongst heirs start at this stage.

Third Stage:  and the last Stage. This stage comes into the picture when there are absolutely no legal heirs of the deceased, and Government inherits the entire property.

Right of legal heirs under the property inheritance law of Christians

There are three types of heirs under Christians:

  • lineal descendants

Hindu Law 

Division of property in case of death of a coparcener hindu.

The Hindu Succession (Amendment) Act, 2005 – Introduced into the Parliament on 20th December 2004. The Hindu Succession (Amendment) Act, 2005 is the product of recommendations of the Law Commission of India in its 174th Report in May 2000, in respect of the equal distribution of ancestral property between both male and female heirs. The Amendment had also become necessary due to the changes introduced in Hindu Succession Act 1956 by five Indian states, namely, Kerala, Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. Finally, the President’s assent was received by the Bill on 5th September 2005, and it came into force on 9th September 2005.

Recommended reading: Process of Partition Lawsuit

Indian property inheritance law for daughters

After the Amendment of 2005, to the Hindu Succession Act 1956, by virtue of section 6, now daughters have equal rights, shares and liabilities as of that of the son in respect to the property of her father.

  • Firstly, the daughter of a coparcener   shall, by birth become a coparcener in the same manner as the son;
  • The daughter will have the same right in the coparcenary property as she would have had if she has been a son;
  • The daughter shall have same liability in the coparcenary property as that of a son;
  • The daughter is given the same share as is given to a son. The share of a predeceased son or a predeceased daughter shall be given to the surviving child of such predeceased son or of such predeceased daughter.
  • Before the Amendment, females were members of the joint family, but the daughters were not coparceners as they had no right by birth.
  • After the execution of the Amendment, the daughter of a coparcener by birth becomes a coparcener in her own right as the son.
  • A daughter would have the same rights in the coparcener property and be subject to the same liabilities of the coparcenary property as that of a son. Further, daughters would not only be empowered to form a coparcenary along with their other siblings but would also be competent to start a joint family herself.
  • She can even be a Karta, throw her self-acquired earning into the joint family fund, something that was not possible before the Amendment; thus, a ‘daughter’, like a son, can not only continue a joint family but also form one with her father and brothers.

Inheritance rights of legal heirs

The Hindu Succession Act of 1956 specifies, Children being offspring of their parents, have the right to inherit their deceased parents’ property. Therefore, children fall in the category of class-I legal heirs. However, children’s rights differ in respect of different types of property under Hindu Law. As specified above, there are two types of property under Hindu Law; self-acquired property and ancestral property. Children have a birth right in the ancestral property of their parents as this property is passed on from great-grandfather to grandfather, father, and then son. Hence, a father cannot deprive his children of their shares in the ancestral property.

The other type of property, which is self-acquired property is the property that the father acquires by his income and money. Regarding self-acquired property, it is the father’s discretion whether to give a share to his children or not. The children cannot force their father to provide them with a stake in such property.

Recommended reading: Property Ownership & Inheritance Rights of Women in India

Inheritance rights of grandchildren

Grandchildren also fall in the category of class – 1 legal heir. This is because grandchildren have a birth right in the ancestral property. Even in case parents predecease grandparents; the grandchildren have the right to inherit the share of their parents.

Rights of grandchildren in the property of maternal grandparents 

Grandchildren will have the absolute right to the property of their maternal grandparents.

In case their mother predeceases their grandparents, the children will be entitled to claim the share of their mother that she would have received had she been alive.

Rights of a Spouse

A spouse, either a husband or wife, have the right to inherit the property of their partner in case their partner dies. Under Hindu Law, the spouse also falls in the category of class-1 legal heirs.

Rights of husband in wife’s property 

According to Section 15 – If a Hindu female dies without a Will, her property would be distributed as follow: –

  • Firstly, her property will be distributed upon the sons and daughters (including the children of any predeceased son or daughter) and the husband
  • Secondly, upon the heirs of the husband
  • thirdly, upon the mother and the father
  • fourthly, upon the heirs of the father
  • and, upon the heirs of the mother

Hence, a husband will inherit the wife’s property in equal share along with the children.

Recommended reading:  Rights on mother’s property after her death

Rights of wife in husband’s property 

According to Hindu Law, when a Hindu male dies intestate, his property is devolved upon his class-I legal heirs, which are Mother, Widow, Son, Daughter etc.

Hence, a wife being a class-I legal heir, will inherit her deceased husband’s property in equal share along with other legal heirs.

Property inheritance rights of an adopted child

An adopted child is treated equally as a natural-born child under Hindu law. On adoption, the child is entitled to inherit the properties in the same manner as that of a natural-born son or daughter.

The property inheritance law in India is very vast as it covers various religions under it. Numerous amendments have been made to it, over a period of time. Hindus, Muslims and Christians have different legal heirs, and the modes of succession are also different in each religion. Under Hindu Law, Woman’s property rights have been uplifted in the contemporary era by virtue of the amendment act of 2005. Now the daughter has equal rights as that of a son. This has uplifted the social worth of a woman.

After the mother’s death, can children of predeceased children claim the mother’s property?

 According to Hindu Law, after the death of a female, her property is devolved upon her children, children of predeceased children and husband. Therefore, in your case, children of predeceased children can claim their grandmother’s property.

Can a grandson claim his mother’s share in her father’s property when his mother has already died?

 After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, a son can claim a share of his mother along with other legal heirs alive in the class 1 category.

Can a Hindu divorced woman claim her ex-husband’s property after his death?

 As per the traditional laws, a Hindu divorced woman can claim her ex-husband’s property, provided she did not re-marry after the divorce. This was mentioned in section 24 of the Hindu Succession Act 1956. However, by virtue of the Amendment of 2005, section 24 has been deleted and now, even if a widow re-marries, she can still claim her right in the property of her ex-husband.

Hello, my mother has passed away, and my father got married again. The second wife wants to share the property. She has no children. Can she claim a share in my father’s property?

 After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, in your case, your father’s children from your first wife, your father’s second wife and his mother, if alive, will be entitled to share in your father’s property.

How to add your spouse’s name to the already registered property in India?

 The spouse’s name can be added to the already registered property in two ways. Firstly, you can execute a sale deed favouring your spouse and get it duly registered with the concerned sub-registrar of the area. One needs to do so by paying the necessary transfer fees. Secondly, you can also execute a gift deed in favour of your spouse and get it duly registered with the sub-registrar. This registration has to be in the said jurisdiction and on a duly stamped deed. You can specify the portion of the property, either 50% or any other percentage of the portion of your choice that you wish to give to your spouse.

Suppose a man has no son and only daughters, then how property will be divided among daughters. Will it go to the cousin brothers, or full property will be divided among daughters?

 After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, in your case, if there is no son, then the property will be devolved upon the daughters in equal shares.

What are the modes of succession in Muslim Law?

 There are three modes of Succession under Muslim Law. The first is that duties are to be performed after the demise of an Indian Muslim, such as payment of funeral expenses, payment of wages, debts and execution of Will. Once everything is done, the remaining is distributed among the heirs. Secondly, the share is distributed between heirs and successors. The third stage is when there are absolutely no legal heirs of the deceased, and Government inherits the entire property.

What if the property partition was done before 2005, and will women still get a share in the property?

 By virtue of the Amendment of Hindu Succession Act of 2005, daughters have equal rights as a son to inherit her father’s property provided no partition should have been affected before the date 20.12.2004, i.e., the date when this Amendment Act was introduced in the Parliament.

When grandfather dies, who has the right to inherit the property?

 After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, Mother, Son’s Son etc. Hence, after the death of their grandfather, his class-1 legal heirs will be entitled to his estate through natural succession.

Will the property of a deceased father go only to his son, daughter and wife as per Succession Act or will it go to the deceased person’s mom and dad?

 After the amendment Act of 2005, according to Hindu Law by virtue of section 6, the property of Hindu male dying intestate devolves upon his heirs in Class-I category, which includes Sons, Daughters, Widows, mother etc. Hence, the property will devolve upon son, daughter, wife and mother of the intestate being class-1 legal heirs. Further, the father falls in the category of class-2 heirs.

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Modes of Transfer of Property

  • Post published: January 17, 2020
  • Post category: All Articles / Civil Law

MODES OF TRANSFER OF PROPERTY

The transfer of property act 1882 is an Indian legislation dealing with provision relating to transfer of property in India. It’s main arena is to define what constitutes property and the conditions thereof. So accordingly, the term ‘transfer of property’ may be defined as an act by which one party person conveys the property to one or more persons or to himself and one or more persons. Such transfer need not be necessarily a present transaction, it can be a future transaction as well. Moreover this act is not only extended to natural persons but also to artificial persons (juristic persons) like companies, association or body of individuals. The important consideration here is that what kind of properties are covered under transfer of property act 1882. There are two broad categories of property which is as under : Modes of Transfer of Property

Immovable property

In layman’s language, an immovable property is the one which can not be conveyed physically from one person to another. However if we study the provision of this act, section 3 defines immovable property as the one that excludes standing timbre, growing crops and grass. Further section 4 of this act also provides that immovable property includes land, benefits arising out of land and things permanently attached to earth.

Movable property

On the other hand , the term movable property is not defined anywhere in this act. The meaning of movable property is inferred section 3 of this act. According to this section, standing timbre, growing crops and grass constitutes immovable property. Similarly as per section 2 (9) of the Registration Act 1908 also provides that standing timbre, growing crops, grass, fruits on tress and property of every description except immovable property constitutes movable property. Broadly speaking, this act mainly deals with immovable property however there are some provisions dealing with movable properties. Now the important question that has to be answered is that property law deals with what kind of properties and what are the modes of transfer under this act. This act provides that there can be transfer of property via two means as under :

  • By act of parties
  • By operation of laws    Modes of Transfer of Property

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This act does not apply in cases of transfer by operation of laws. Transfers by operation of laws are governed by personal laws for example. Hindu and Muslim laws of will and inheritance or by order of court under civil procedure code. To constitute a valid transfer under this act, certain conditions are to satisfied which are as under-

  • It is rightly stipulated in section 5 of this act that “transfer of property means an act in which a living party 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 person.” The requirements of section 5 are to be satisfied in order to constitute a transfer under this act.    Modes of Transfer of Property
  • Requirements of section 6 as to what kind of properties can be transferred under this act has to be met.
  • The various essentials of a valid transfer are to be satisfied as stipulated under section 7 of this act like the parties must be competent to contract, age of majority, soundness of mind, authority to transfer, no other disqualifications on the part of either of the parties, etc.  Modes of Transfer of Property

After the satisfaction of the above requirement, either of the modes of transfer(section 9 of this act) may be adopted:

Delivery of possession  Modes of Transfer of Property

Registration    modes of transfer of property.

This act provides that where writing is not necessary under this act, the property may be transferred orally i.e. without writing any deed.

  • Delivery of possession – wherever writing of any deed is not required under this act, such Property may be transferred orally which means transfer of property by delivery of possession. In case of movable property this mode of transfer is generally adopted and other kinds of properties like sale of immovable property valuing less than rupees 100 (except in U.P), month to month tenancy, mortgage by deposit of title deeds etc. So it can be concluded that wherever writing of deed is not required, the same can be effectuated through an oral transfer.
  • Registration – whenever there is a need that the transfer must be in writing, then the registration of the same is necessary. This act mentions various transfers that can only be effected through a written deed like gift of an immovable property, sale of an immovable property exceeding more than 100 rupees in value, sale of reversion irrespective of it value, leases from year to year, simple mortgage irrespective of the amount secured etc. So in all these cases oral transfer can’t be effected. In such cases a written deed is necessary and where ever a written deed is necessary the registration of the same becomes mandatory. The method and the procedure of registration of documents and transfers are governed by the registration act 1908. And if such Properties are transferred without registration, the transaction is held to be null and void.

While particularly discussing the transfer of immovable properties, it has to be noted that it may happen in certain ways only. The various ways or modes of transfer of immovable property are :

Sale – Section  54:- this is the first mode of transfer of property. It includes entering of a sale contract between two parties. Under this contract the various conditions of a valid contract as stipulated in section 2 of the indian contract act has to be compiled with. Moreover if the property values less than rupees 100 then Registration is not mandatory however registration is necessary for all those properties to be transferred that cost more than rupees 100 under the registration act 1908

Mortgage –Section 58:- transfer of immovable property can also take place by means of mortgage under section 58 (a) of transfer of property act. Under this, the mortgagor transfers any of his interest in the specific immovable property to the mortgagee. This is done in order get a loan advanced in the favour of mortgagor. Out of this loan a future liability arises and if the mortgager fails to repay the loan amount then the property kept as security with the mortgagee is transferred to him only.

Charge –Section 100: a charge is another mode of transfer of immovable property. This is given under section 100 of the transfer of property act. A charge is an act by one person to create a security for payment of money to another person and the transaction should not be a mortgage, the latter is said to have a charge on the property. For example: A inherits certain properties from his grandmother. He executes an instrument in which he agreed to pay a certain sum of money every year to his sister B out of the rents and profits of the inherited property. Charge by act of parties is created in favour of B.

The charge can also be created by way off operation of laws. For example: A who is a co-sharer, pays the entire arrears of rent as required under some provisions of law. A has a charge by operation of law, on the other co-sharer’s portion of property.

Lease – section 105 of the transfer of property act defines lease as an act of transfer of Right to enjoyment of an immovable property made for a certain period, in consideration of a price paid or promised to be paid or money, share of crops, service or any other thing of value to be given periodically or on specified occasions to the transferor(lessor) by the transferee(lessee).

Immovable property may also transferred by means of exchange, gifts and actionable claims.

Immovable property can also be transferred by operation of laws but it not the subject matter of the transfer of property act of India.

CONCLUSION- Before the transfer of any property if effected if has to be taken into consideration that what kind of properties are transferable. Section 6 of this act explains all those properties which can’t be transferred like right of re-entry, spes-successionis, future maintenance, transfer opposed to nature of interest, etc. This can be inferred from various case laws such as In one of case law it was held that the appellant purchased the rights expectant upon the termination of the surviving widow’s rights from the respondents and further on there was a compromise between the widow and the respondents as a result of which the respondents got certain properties. Thus it was held in the case that compromise is void and cannot be transferred. Similarly in another case Charge cannot be transferred because it is a right, which is a part of the property. Compromise cannot be transferred. Easement cannot be transferred because these are the rights or interest arising of land, which is a part of the property but cannot be transferred. Family arrangement may be transferred. A will cannot be transferred because it does not operate by the act of parties. Auction sale cannot be transferred because property is in possession of another. Therefore it is concluded that before considering the question of mode of transfer , it as to be first ascertained that what kind of properties can be transferred. If the property is a transferable property the same can be transferred via using different modes of transfers as discussed above.

Note: For any further information or any query you may contact us on 9855677966 or via email [email protected]

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Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds

Templates and forms.

The “Revocable Transfer on Death Deed,” also called “TOD Deed” or “beneficiary deed,” is a simple way to leave a residence to your beneficiaries without the need for probate. The current owner or “transferor” names the intended heirs as “beneficiaries.” The deed has no effect until the transferor dies, so you can change your mind, refinance, or sell the property if you choose. When you die, the beneficiaries receive the property without going to court, although they do have to notify all heirs and file or record several documents.

As of Jan. 1, 2022, TOD deeds must now be signed by two witnesses, and after the donor dies, the beneficiaries must notify all heirs and file multiple papers.

Removing Transferor’s Name after a Death

Beneficiaries who are transferring real estate into their name should use our guide Transferring Title to Beneficiaries after a Transfer on Death Deed Takes Effect .

A TOD deed is intended to be an inexpensive way to plan who inherits your home after you die. It can only be used to transfer a property with one to four residential dwelling or condominium units, or a single-family residence with less than 40 acres of agricultural land. A mobile home may be transferred only if it is a “fixture.”

Advantages:

  • Avoids probate, if done correctly and if no unexpected family changes occur (like beneficiaries who die before transferor);
  • Simple, inexpensive alternative to a living trust or other probate avoidance techniques;
  • Can be revoked at any time during the lifetime of the transferor;
  • Same tax advantages as transfers by trust or inheritance under a will.

Disadvantages:

  • Technical requirements are simple but very strict, and errors can void the TOD deed;
  • The home is not protected from your debts. If you die with a mortgage or other debt, your beneficiaries may get nothing;
  • If you co-own the property as joint tenancy or community property with right of survivorship, the other owner receives your share of the property upon your death. The TOD deed has no effect unless you outlive your co-owner. If co-owners want to use a TOD deed, they must each sign a separate one;
  • Title companies may refuse to issue title insurance for three years after your death, blocking sales or refinancing of the property, out of concern the TOD deed will be challenged;
  • If a beneficiary dies before the transferor, their share won’t go to their heirs. Instead, the remaining beneficiaries split it. If no beneficiaries survive, your home will probably need to go through probate;
  • After your death, the beneficiaries must take several steps to transfer the property, including notifying any possible heirs, allowing them to challenge the TOD deed.

Filling Out and Recording a TOD deed

These steps help you fill out a “Revocable Transfer on Death (TOD) Deed,” which you can download from our website at the link above.

Locate the Current Deed for the Property

You will need information from your current deed (the deed you received when you bought or received the property) in Step 2.

If you do not have a copy of the current deed, you can purchase one from the Recorder’s Office. In Sacramento, this costs $1 per page. You can call the Sacramento office at (916) 874-6334 or visit one of the office locations (see Sacramento Clerk/Recorder website for addresses and more information).

Make sure you are looking at the deed which gives you ownership of the property. Look for a name like “Grant Deed,” “Quitclaim Deed,” “Interspousal Deed,” “Corporation Deed,” or “Transfer Deed.” Ignore any “Deed of Trust.” That is related to the mortgage on your property. It will not have all the information you need.

Read the “Common Questions” Listed on Page 3-4 of the TOD Deed

Before you sign the deed, you are required to read the questions and answers about how the TOD deed works. They are written in small type on page three and four contain important information you need to know prior to filling out the deed, including how to complete it; how to revoke it; its effects on taxes, Medi-Cal eligibility and reimbursement requirements; and more.

Prefer a larger version? Download a large-print version of the common questions from our website.

Fill Out the TOD Deed (Do Not Sign)

The TOD deed can be typed, filled out online then printed, or neatly handwritten in dark blue or black ink.

You will need the following information:

  • Assessor’s Parcel Number.
  • Your name as spelled on the current deed.
  • Names of “beneficiaries” (your intended heirs).
  • The legal description of the property. This must match the current deed exactly . Attach the legal description as an exhibit if it is too long for the page.

A sample completed “Revocable Transfer on Death (TOD) Deed” with more detailed instructions is available at the end of this guide.

Sign in Front of a Notary; Have Two Witnesses Sign

You will need to sign the TOD deed in front of a notary. The notary will charge a fee for this service. You can find notaries at many banks, mailing services, and title companies.

Two witnesses need to sign. Their signatures do not need to be notarized. They must either witness you signing, or witness you acknowledging the form. (In other words, you must tell them, in person, what the form is and that you have signed it.)

Beneficiaries do not need to sign the TOD deed, but it is legal for them to be a witness. However, if anyone challenges the TOD deed, the court must presume that the beneficiary/witness tricked or forced you to sign, and must invalidate the deed unless the beneficiary can prove otherwise.

Record the Deed at the Recorder’s Office within 60 Days of Notarizing It

You must record a TOD deed within 60 days of notarizing it or it becomes invalid. This is the easiest way for TOD deeds to fail.

Record the TOD deed in the county where the property is located. The Recorder’s Office charges a recording fee and additional fees as set by state law. Current Sacramento fees are available at the County Clerk/Recorder’s website .

Revoking a TOD Deed

You can revoke a TOD deed at any time for any reason. If you sell the property, the deed is automatically revoked. To revoke it without selling it, fill out and record a “Revocation of Revocable Transfer on Death (TOD) Deed.”

Download the “ Revocation of Revocable Transfer on Death (TOD) Deed ” form from the link above.

Locate your TOD Deed for the Property

You will need information from your TOD deed to complete Step 2.

If you do not have a copy of your TOD deed, you can purchase one from the Recorder’s Office. In Sacramento, this costs $1 per page. You can contact the Sacramento office at (916) 874-6334 or visit one of the office locations (see the Sacramento County Clerk/Recorder’s website for addresses and more information).

Fill Out the TOD Revocation (Do Not Sign)

The revocation can be typed, filled out online then printed, or neatly handwritten in dark blue or black ink. You will need the following information from the TOD deed:

  • The legal description of the property. This must match the TOD deed exactly . Attach the legal description as an exhibit if it is too long for the page.
  • Your name as spelled on the TOD deed.
  • The date you signed the TOD deed, the date you recorded the TOD deed, and the book/reel and page/image numbers stamped on the upper right of the TOD deed. (If your county uses instrument numbers, you will need that number. Sacramento County does not use instrument numbers).
  • Names of “beneficiaries” (your intended heirs), and their relationship to you, as written on your TOD deed.

A sample completed “Revocation of Revocable Transfer on Death (TOD) Deed” with more detailed instructions is available at the end of this guide.

You will need to sign the Revocation in front of a notary. The notary will charge a fee for this service. You can find notaries at many banks, mailing services, and title companies.

Record the Revocation at the Recorder’s Office within 60 Days of Notarizing It

You must record a TOD Deed Revocation within 60 days of notarizing it or it becomes invalid. This is the easiest way for TOD Deed Revocations to fail.

Record the Revocation in the county where the property is located. The Recorder’s Office charges a recording fee and additional fees as set by state law. Current Sacramento fees are available at the County Clerk/Recorder’s website .

Senior Legal Hotline Toll Free: (800) 222-1753; Sacramento County: (916) 551-2140 Legal Services of Northern California Free legal assistance for Sacramento residents age 60 and over on almost any civil issue, including property transfers and deeds.

Capitol Pro Bono 916-551-2102 Free estate planning assistance for low-income residents.

For More Information

On the web:.

California Advocates for Nursing Home Reform (CANHR) “Transferring Your Home with a Transfer on Death Deed (TOD) – What You Need to Know” Links several resources discussing advantages and disadvantages of TOD deeds, including a webinar for estate planning attorneys. CANHR also has a referral service to help you find attorneys specializing in elder law.

Sacramento County Public Law Library “Revocable Transfers on Death Deeds” (video) This free five-part series of videos provides detailed information on TOD deeds by Jim Hildreth. It does not include the 2022 changes to the law.

At the Law Library:

California Estate Planning (KFC 195 .A16 C3) This book, published by CEB, discusses TOD deeds some of their tax and other implications, and possible alternatives in chapter 7. Electronic Access: On the Law Library’s computers, using OnLaw .

Sample Forms and Instructions

transfer of property indian law

This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.

transfer of property indian law

  • Agencies & Departments

Office of the Assessor, Santa Clara County

Term and Conditions

The Assessor has developed an on line tool to look up basic information, such as assessed value and assessor's parcel number (APN), for real property in Santa Clara County.

Currently you may research and print assessment information for individual parcels free of charge. This system is best viewed using Internet Explorer 8.0 or higher and a screen resolution of 1024 x 768.

Please contact us with your comments or suggestions. If you have any questions or comments e-mail us. Your feedback is important in determining the type of and demand for services needed by the public.

This service has been provided to allow easy access and a visual display of County Assessment information. A reasonable effort has been made to ensure the accuracy of the data provided; nevertheless, some information may be out of date or may not be accurate. The County of Santa Clara assumes no responsibility arising from use of this information. ASSOCIATED DATA ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Do not make any business decisions based on this data before validating the data. [Revenue and Taxation Code Section 408.3(c)]

California Government Code 6254.21 states that "No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual." As the cost to collect and continuously update that information is prohibitive, the On-Line Property Assessment Information System does not display the Assessee name information.

The information contained in this web site is for the current owner of record only. Current owner history displayed is available for up to the most current three years only. If the ownership has changed during the past three years, the information displayed will only be for the most recently closed assessment roll. Certificates of title of mobile homes are processed through the California Housing and Community Development (HCD). For more information on certificates of title or ownership you can visit their web site at: www.hcd.ca.gov.

Any resale of this information is prohibited.

Transfer Assessed Values FAQ (Proposition 19, 3, 58, 60, 90)

Parent to/from child (after 2/15/21—prop. 19), is proposition 19 retroactive and would it cause property transfer that have already received the benefit of proposition 58 (parent-child exclusion) to be reassessed.

No, Proposition 19 is clear that Proposition 58 applies to transfers that occur on or before February 15, 2021, and that Proposition 19 applies to transfers that occur on or after February 16, 2021.

If a parent died prior to the February 16, 2021 operative date and the Assessor does not become aware of the death until a year later and reassesses the property as of the date of death, are the parent-child exclusion provisions applied under Proposition 58 or Proposition 19?

The date of death is the date of change in ownership. The law in effect as of the date of death will apply. Proposition 19 is clear that Proposition 58 applies to transfers that occur on or before February 15, 2021, and Proposition 19 applies to transfers that occur on or after February 16, 2021.

I have my deed signed and notarized and have submitted it for recording at my local County Recorder's office prior to the February 15, 2021 deadline. What if my deed does not record by the February 15, 2021 deadline? Must my deed be recorded prior to that date in order to still be under the Proposition 58/193 provisions?

No. As long as the date of transfer is on or before February 15, 2021, the transfer will qualify for the Proposition 58/193 exclusion. Property Tax Rule 462.260 makes clear that the recordation date of a deed is rebuttably presumed to be the transfer date. This means that if evidence is shown that the transfer occurred prior to the recordation date, the assessor should accept that earlier date. Such evidence could be, for example, the date of a notarized document of transfer, such as a deed.

Are transfers of family homes through the medium of a trust eligible for the Prop 19 exclusion?

Yes. For property tax purposes, we look through the trust to determine who has present beneficial ownership. Therefore, if all requirements are otherwise satisfied, transfers to and from a trust are eligible for the exclusion.

Does Prop 19 make any changes to the ability of trustees to equalize distributions of estate property in a trust that provides that the children are to receive the trust assets on a share and share alike basis?

Proposition 19 does not change the property tax rules surrounding the operation of trust, including trusts with share and share alike provisions. However, after February 15, 2021, only the family home and family farm may be excluded from change in ownership.

I am planning to transfer my family home to my two children. Must the property become the family home of both children in order to receive the exclusion?

No. As long as the property becomes the family home of one of the two children within one year of the transfer, the property can qualify for the exclusion.

Age 55+, Tax Base Year Transfer (Proposition 19)

If i have already sold my original property and will purchase my replacement property after april 1, 2021, will i qualify under the new proposition 19 rules.

Yes, as long the purchase or completion of new construction of the replacement property occurs after April 1, 2021. Only one of the transactions must occur after April 1, 2021 to qualify under the new rules.

If I have been denied a base year transfer because my purchase was greater than the sale price of my original property will I be able to qualify under the new Proposition 19 rules?

No, at least one of the transactions must be after the April 1, 2021 effective date.

I’m confused about the time limits. One place says there is a 2-year limit, and another place says 3 years. So, what is it?

These time limits are dealing with 2 different issues. The replacement residence must be purchased or newly constructed within 2 years (before or after) the sale of the original residence. The Proposition 19 application must be filed within 3 years of the date of the replacement residence is purchased or newly constructed in order to receive full benefits. If the application is filed after 3 years, only prospective relief will be granted.

If I have sold my home and bought my new home in Santa Clara County in June 2021, and it takes 6-18 months to process, how much taxes do I pay in the interim?

The bill will be based on their purchase price until the application is approved.  Once the application is approved, they will receive a credit/refund from the Tax Collector for any overpayments.  Typical turnaround time is 3-4 months. The longest delay are transfers in the beginning of the year because of the close of the Assessment roll or waiting for assessed values from other counties. However, with the new rules, I would think the volume will increase, so turnaround time might be a little longer.

Is it OK to put another person on title (such as a son, daughter, brother) along with the person who is the claimant for Proposition 19?

Yes. The claimant needs to be on title in some percentage on both the original and replacement residences and can have others on title as well.

If the qualifying homeowner has a minority interest in the property, can they transfer 100% of the benefit?

Yes, they will receive 100% of the benefit.  It doesn’t matter what percentage you own, You only have to be on title of the property that is sold and the property that is purchased.

I never applied for a Homeowner’s Exemption, but I had lived in my house for many years before I sold it. Can I still qualify?

As long as the homeowner can prove that the sold property was owned and occupied as the principal place of residence, he or she can meet the residency requirement. Proof of residency may include vehicle registration, bank accounts, or income tax records. Utility bills do not qualify because they might be sent to a renter.

How long do I have to live in a house before it is considered a principal residence?

However, the claimant must be eligible for the homeowner exemption and have lived there long enough to be able to provide the documentation as mentioned above. A principal residence is a person’s true, fixed, and permanent home and principal establishment to which the owner, whenever absent, intends to return.

I am purchasing a new residence and plan to rent it out for a year (or remodel it) before I move into it when I sell my original house. Will I still qualify for Proposition 19?

Yes, if the replacement property is the primary residence at time you apply for Proposition 19.

What if I rent out my original house for a year, sell it, and then buy a replacement residence?

Yes, if the original property is sold within 2 years of purchasing your replacement property and the original property was eligible for the homeowner exemption, either at the time of sale or within two years of the purchase or new construction of replacement dwelling.

I think that my realtor or title company already took care of filling out the application. Isn’t it an automatic grant?

Sometimes a realtor might assist you, but it is not an automatic grant. You must fill out an application and file it with the Assessor’s office where the replacement property is purchased. A copy of a driver’s license or birth certificate should be attached to the application. If you are not sure if you have filed an application, call the Assessor’s office to check.

I previously transferred my home under Prop 60. Can I transfer again under Proposition 19 and if so, how many times?

Yes, up to three additional times. Under Proposition 19, all Prop 60/90 base year transfer are not taken into account.

I sold my house a year ago, moved out of state, and now I want to move back. Can I still qualify for Proposition 19?

Yes, assuming all the other qualifications are met and the two transactions of selling the original residence and buying the new residence are within 2 years of each other.

I inherit a residence from my mother this year and I file for and receive the parent-child exclusion. Can I, when I turn age 55, sell this property and transfer my mother's base year value to another property that I purchase?

Yes, as long as you have moved into the inherited residence and live in it as your primary place of residence. If you are over age 55, you may sell your primary residence, buy another residence, and transfer the base year value, if all the other requirements (timing, value, residency, timely filed claim) are met. It does not matter how you acquired your original property.

I purchased a replacement dwelling in March 2020. My original property later sold in November 2021 and I filed a claim to transfer the base year value. Is the date of transfer, the date I purchased the replacement dwelling?

Assuming you meet all the qualifications for a Proposition 19 base year value transfer, the base year value is transferred as of the latest qualifying date:

  • The date the original property sold, or
  • The date the replacement property is purchased, or
  • The date the new construction of the replacement property is completed.

In your case, the base year value would be transferred as of November 2021 because that is the latest qualifying date. You are responsible for the increased taxes from the time the replacement property was purchased until the original property was sold.

I bought a vacant lot 10 years ago. I want to sell my present home and build a new one on the vacant lot that I already own. Would I qualify for Proposition 19?

Yes, if the date of the completion of the new construction is within 2 years of the sale of the original house. The Assessor’s office will do a market appraisal as of the date of completion on the new construction including the land of what the new house would sell for. The market value of both the land and improvements is what the appraiser uses to compare with the sale of the original house.

What does “severely disabled” mean?

Like the existing disability requirements, the applicant’s physician must complete a Certificate Disability indicating that their severe disability requires them to move to a new residence that meets the needs of their disability. The Assessor’s office will provide you with the certificate, along with the application for the Proposition 19 or Proposition 110 transfer. The most common request for a transfer for a disability is moving from a two-story home to a single-story home.

Can I transfer my tax base value to a manufactured home?

Yes. Generally, (with a few exceptions) the total of your base year value is transferred to the manufactured home. Sometimes, it is not advantageous because of the lower cost of the manufactured home.

How long does it take to process the application?

As in past years, transactions that occur after January 1, will not begin to be processed until after July 1. As we are setting up new processes and procedures, we have no way to know for sure how long it will take to process.

Would I still qualify for Proposition 19 benefits if I was a few months shy of 55 when my property sold, but over 55 when I purchased my replacement property?

No, you must be at least 55 when your original property sells. While you may be 54 when you purchase your replacement property, you must be at least 55 when you sell your original property.

What form do I complete when I sell my original home? Is their another form when I sell my replacement home?

You do not need to fill out any forms or notify the Assessor’s office of your sale or purchase until you close escrow on both properties. Once both properties have closed escrow you can download an application (BOE-19-B) from the Assessor’s office website in which your replacement property is purchased. Please mail the original application with a copy of your driver’s and any applicable fee’s to your local Assessor’s Office. You do not need to include copies of escrow documents or deeds, we verify everything in house.

My spouse and I just got a divorce. We are going to sell the house that we bought together, and I plan to buy a new house. Can I transfer the tax base, or am I only able to transfer half of it?

The tax base is not split, and only one of you can transfer the entire tax base. If you qualify to transfer the tax base at this time, your former spouse can apply for the benefit in the future using other properties.

Do we anticipate charging a fee to process Proposition 19 base year transfers like Prop 90?

Yes, we anticipate charging the same filing fee of $110.

Proposition 3

What is proposition 3.

Proposition 3 is a constitutional amendment passed in 1982 that provides property tax relief to an owner (individual or legal entity) whose property has been taken by eminent domain proceedings, acquisition by a public entity, or governmental action resulting in a judgment of inverse condemnation. Section 68 of the Revenue and Taxation Code provides the statutory authority to implement Proposition 3. Rule 462.500 interprets, implements and makes specific Section 68.

How does the proposition work?

When a taxpayer purchases or constructs a replacement property as a result of his/her original property being taken by governmental action, under certain conditions, the adjusted base year value of the original property may be transferred to the replacement property. If a transaction qualifies, Proposition 3 provides an exclusion from what would otherwise be a full market value reassessment of the replacement property.

What are the qualifying conditions of the original property?

1. You must be the owner(s) of real property that has been taken by governmental action. 2. You must have been displaced from the original property by governmental action. 3. The original property must be located in California. 4. The request for tax relief must be received in a timely manner. A request for relief is considered timely if made within four years of the following dates:

  • For property acquired by eminent domain, the date the final order of condemnation is recorded or the date the taxpayer vacates the property taken, whichever is later.
  • For property acquired by a public entity by purchase or exchange, the date of conveyance or the date the taxpayer vacates the property taken, whichever is later.
  • For property taken by inverse condemnation, the date the judgment of inverse condemnation becomes final or the date the taxpayer vacates the property taken, whichever is later.

What are the qualifying conditions of the replacement property?

1. The replacement property must be acquired before a request is made to transfer the base year value. 2. The owner(s) of property taken must obtain title to comparable replacement property. The acquisition of an ownership interest in a legal entity which, directly or indirectly, owns real property is not an acquisition of comparable property. 3. The replacement property must be acquired or newly constructed after the earliest of the following dates:

  • The date the initial written offer is made for the property taken by the acquiring entity.
  • The date the acquiring entity takes final action to approve a project which results in an offer for, or the acquisition of, the property taken.
  • The date a Notice of Determination, Notice of Exemption, or other similar notice, is recorded by the public entity acquiring the taxpayer's property and the public project has been approved.
  • The date, as declared by the court, that the property was taken.

Property acquired or newly constructed prior to these dates is not eligible for relief. However, new construction on land that is ineligible due the fact that the land was acquired prior to these dates may be eligible for relief if such new construction is completed on or after the earliest of these dates. 4. The replacement and displaced properties must be comparable in size, utility, and function

  • A replacement property is considered comparable in size when it will be used in the same way as the displaced property, and its full cash value does not exceed 120 percent of the award or purchase price paid for the original property.
  • A replacement property is considered comparable in function and utility if it is, or is intended to be, used in the same manner as the property taken and is subject to similar governmental restrictions, for example, zoning. To be considered similar in function and utility, the property taken and the replacement property both must fall into the same category:

Category A: Single-family residence or duplex Category B: Commercial, investment, income, or vacant property Category C Agricultural property If the property taken is a residence or duplex that is rented, it can be replaced with either another singe-family residence under Category A or with a Category B property. However, before being able to replace the property with a Category B property, sufficient proof must be provided to the county assessor showing that the property taken was used as income property.

Will I be able to transfer my original property's base year value to a replacement property?

My property was under a threat of condemnation by a redevelopment agency that wanted me to sell my property to them so they could sell it to a specific third (private) party. The agency indicated that if we did not reach an agreement, they would recommend to the board of the agency that the agency take formal action to commence acquisition proceedings pursuant to the power of eminent domain. Instead, I sold my property to a private company who purchased it on behalf of that specific (third) party. No, You won't be able. A sale directly to a private party under threat of condemnation by a governmental entity is not displacement from property by eminent domain proceedings, by acquisition by a public entity, or by governmental action which results in a judgment of inverse condemnation. Additionally, you will not have the required documents from your sale to show your property was sold under these conditions.

Must my replacement property be located in the same county as the property taken?

No. The only location restriction of the displaced and the replacement properties are that they both must be located in California.

My commercial property was just acquired by a public retirement system for investment purposes. May I build a new commercial building on a parcel I purchased two years ago as my replacement property?

The land you purchased prior to your property being taken would not qualify for the base year value transfer since it was acquired prior to your displacement from the original property; however, since the new construction will be completed after the date of displacement, you may transfer your entire base year value to the new construction as long as the new improvement's full cash value does not exceed 120 percent of the purchase price paid for the property taken. The new construction must be completed, however, within four years of the date of conveyance or the date you vacate the property taken, whichever is later, as discussed in question 3 above.

Is the purchase of an undivided one-half interest in a replacement property for my property taken eligible for tax relief under Proposition 3?

Yes, the purchase of a partial interest in real property is eligible for property tax relief. However, the purchase of a partial interest in a legal entity that holds real property is not eligible for any relief.

I replaced my home with a combination dwelling and commercial property. How much relief am I entitled to?

Relief can only be applied to the portion of the property that is of similar function and utility as the taken property. Here, under your situation, the property taken falls under Category A, but the replacement property falls under both Category A and Category B. As such, relief may be granted only to the residential portion of the property falling under Category A; the commercial (Category B) portion will be considered to have undergone a change in ownership and will be reappraised at fair market value.

My property, a combination dwelling and commercial property, is replaced with a home. How much relief am I entitled to?

As stated in question 9, relief can only be applied to the portion of the property that is of similar function and utility as the property taken. Thus, only the dwelling (Category A) portion of the property taken will be considered in determining the comparability and the amount of property tax relief granted. The right to relief on the commercial (Category B) portion of the property is waived unless comparable replacement Category B property is timely acquired and a timely request is made.

My property, a combination dwelling and commercial property, was replaced with a home; two years later I also acquired a comparable replacement Category B property. How much relief am I entitled to?

Relief will be granted on both the Category A and Category B properties based on the percentages of the adjusted base year value of the taken property that correspond to each of the replacement properties.

My two brothers and I, equal tenants-in-common, were displaced from our home with a market value of $330,000 and an adjusted base year value of $180,000. How much relief can each of us carry forward?

Each party can carry forward one-third of the base year value of $180,000 ($60,000) to a replacement dwelling. Any excess value of a replacement property will be reappraised at market value.

Our 2,000 square foot home was replaced with a 1,200 square foot home. We then added an additional 1,000 square feet of new construction to make it comparable to our original home. How much relief are we entitled to?

Property comparability with regards to size is associated with the value of your property -- not upon the square footage or other physical characteristics of your home. Property is similar in size if its full cash value does not exceed 120 percent of the award or purchase price of the property taken. The value of the new construction will be considered in determining the overall market value of the replacement property. Any portion of the total value of the replacement property over the 120 percent threshold will be reappraised at market value.

May replacement improvements be made on two or more different sites? I would like to transfer portions of the base year value of my property taken to multiple replacement properties.

Yes. Neither section 68 nor Rule 462.500 limits the availability of relief to a single replacement property. Where multiple replacement properties qualify, the 120 percent threshold applies to the aggregated full cash value of the properties.

My commercial building was taken by the city as part of its downtown rejuvenation plan. May I acquire an ownership interest in a legal entity which, directly or indirectly, owns real property as my replacement property?

No. Acquisition of an ownership interest in a legal entity is not an acquisition of comparable property.

May a limited liability corporation (LLC) benefit from Prop 3 property tax relief?

My business partner and I each acquired a comparable replacement property after the partnership was displaced from a commercial property. Are we both entitled to relief?

No. Since the title to the replacement and original properties is not held in the same manner and name, both purchases by you and your business partner constitute a change in ownership, and there will be a reappraisal of both replacement properties at their fair market value. To receive Prop 3 tax relief, both replacement properties must be held in the name of the partnership.

How will the new base year value of the replacement property be calculated?

The assessor will determine the base year value of the replacement property by comparing the award or purchase price paid by the governmental entity for the property taken with the full cash value of the replacement property: 1. If the full cash value of the replacement property does not exceed 120 percent of the award or purchase price of the property taken, then the adjusted base year value of the property taken becomes the replacement property's base year value, regardless of the allocation between land and improvements. 2. If the full cash value of the replacement property exceeds the 120 percent level, then the amount of full cash value in excess of 120 percent will be added to the adjusted base year value of the property taken. The sum of these amounts becomes the base year value of the replacement property. 3.If the full cash value of the replacement property is less than the adjusted base year value of the property taken, then that lower value becomes the base year value of the replacement property. 4. If an exchange occurs for which no award or purchase price is paid by the acquiring entity for the property taken, then the county assessor for each county in which the properties are located must determine the full cash value of both the property taken and the replacement property. Once the full cash values of both properties are determined, then the procedures of 1-3 set forth above will be applied to determine the replacement property’s base year value.

The market value of my home, taken for freeway expansion, exceeded the value of my replacement home by $150,000. Can I transfer this excess base year value to another single-family home that will be an investment property?

Yes. The replacement property can consist of more than one appraisal unit, with the value of the displaced property being allocated to the different replacement units for purposes of this exclusion. Each of the replacement properties, however, must meet the other requirements of section 68 (similar function, timely filing, etc.) to qualify.

How do I file for Proposition 3 tax relief?

An application must be filed with your county assessor using the form: Claim for Base Year Value Transfer - Acquisition by Public Entity (BOE-68). This form may be obtained from your county assessor's office or you may check your county's website as some counties provide a downloadable form. Your county's website may be accessed by clicking on the name of your county via the following link: http://www.boe.ca.gov/proptaxes/assessors.htm.

What is the time period for filing a claim under Proposition 3?

You have four years from: (1) the date the final order of condemnation is recorded when property is acquired by eminent domain; (2) the date of conveyance when property is acquired by a public entity by purchase or exchange; (3) the date the judgment of inverse condemnation becomes final when property is acquired by inverse condemnation; or (4) the date you vacate the property taken, whichever is later.

I sold my property under eminent domain proceedings, but I was able to lease the property back for one year. When does my four-year period start in finding a replacement property?

For property acquired by a public entity by purchase or exchange, your request for the base year transfer shall be deemed timely if made within four years of the date the condemnation is recorded or the date the taxpayer vacates the replaced property, whichever is later. In your case, the four-year statutory filing period will begin the date you vacate the premises at the end of your one-year lease of the property.

Do I need to provide the county assessor with documentation that my property qualifies?

Yes. The applicant must provide proof of actual displacement. A copy of any one of the following documents will be considered by the assessor as such proof: 1. A certified recorded copy of the final order of condemnation, or, if a final order has not been issued, a certified recorded copy of the order for possession showing the effective date that the acquiring entity is authorized to take possession of the property taken. 2. A copy of the recorded deed showing acquisition by the public entity. 3. A certified copy of the final judgment of inverse condemnation. 4. A certified copy of a document that clearly indicates the name of the acquiring agency, the date condemnation proceedings began, and the date of possession by the acquiring agency. 5. Any other data requested by the county assessor.

Proposition 58

What is proposition 58.

Proposition 19 repealed the former parent-child and grandparent-grandchild exclusions that were added by Propositions 58 (1986) and 193 (1996). These exclusions described below are now inoperative as of February 16, 2021 and are only effective for parent-child or grandparent-grandchild transfers that occurred on or before February 15, 2021. Proposition 58 had provided an exclusion from reassessment for certain transfers of interests in real property between parents and their children. The transfers must have been between individuals (not to include corporations, partnerships, other legal entities). "Children" must have been either naturally born to the "parents", legally adopted (before age 18), been the spouse of a child, or been a stepchild when the transfer occurred. The exclusion applied to transfers of the parties' principal residence, with no dollar limitation, or to other real property up to a maximum total assessed value of $1,000,000. The transfers may be sales, gifts, exchanges, etc. if all other criteria are met. Concerning transfers which take place upon death (such as by inheritance), the date of death is considered the date of transfer. This exclusion applied to both transfers from parent to child and child to parent. Assuming all of the criteria were met as of February 15, 2021 have been met, a valid claim form must be completed and filed timely with the Assessor’s office. Provided the property has not been sold to third parties, prospective relief is available from January 1 of the assessment year in which an exemption claim is filed. To obtain a Proposition 58 Claim form go to the forms section of this website or please contact the Property Transfer Unit at (408) 299-5540.

Which transfers of real property were excluded from reassessment by Proposition 58?

The following transfers of real property are affected by Proposition 58: 1. Transfers of the primary residences between parents and children. 2. Transfers of the first $1,000,000 of real property other than the primary residences between parents and children.

Who were considered children under Proposition 58?

Children was defined by any of the following: 1. Any child born of the parent(s). 2. Any stepchild or spouse of that stepchild while the relationship of stepparent and stepchild exists. 3. Any son-in-law or daughter-in-law of the parent(s). 4. Any adopted child who was adopted before the age of 18.

What value of the transferred property was considered towards the $1,000,000 exclusion limit?

It is the Proposition 13 value (factored base-year value) just prior to the date of transfer. Basically this is the taxable value on the assessment roll.

Can transfers of real property to or from a family partnership be eligible for Proposition 58 exclusion?

To receive a detailed answers go to: http://www.boe.ca.gov/proptaxes/faqs/propositions58.htm#10

What are the time filing requirements of Proposition 58?

1. Within three years of the transfer. 2. Prior to transferring to a third party. 3. Within six months of the mailing of a notice of supplemental or escape assessment. 4. The date of transfer occurred on or before February 15, 2021.

How often can I apply for this exclusion?

As often as you wish, provided that the taxable value being transferred does not exceed the first $1,000,000 from real property other than the primary residence and the transactions occurred on or before February 15, 2021.

What if the Assessor sends me a claim form and I do not file in a timely manner?

The County Assessor will consider non-compliance to filing as a potential change of ownership, which would trigger a reappraisal and a possible increase in one's property taxes.

Proposition 60 and 90

What was proposition 60/90.

Proposition 60 and 90 were repealed as of March 31 by Proposition 19, which replaced Proposition 60 and 90 and expands a qualifying homeowners’ ability to transfer their base year value to another home anywhere in California.

How did Proposition 60/90 work?

Basically Proposition 60/90 allowed qualified taxpayers to transfer the assessed value of their original residence to a qualifying replacement dwelling without being reappraised at fair market value at the time of transfer. It was designed to allow older taxpayers downsize without being penalized by higher property tax payments.

Who qualified for Proposition 60?

Under proposition 60, what property qualified for this treatment.

  • The transfer of BOTH the original residence and the replacement dwelling must have occurred prior to April 1, 2021.
  • The original property had to be eligible for the Homeowners Exemption.
  • The replacement dwelling must have been of equal-or-lesser value and within the same county.
  • The replacement dwelling must be purchased or newly constructed within two years of the sale of the original property.
  • A claim for proposition 60 relief must be filed within three years of the date a replacement dwelling is purchased or new construction is completed.

What if my original residence was located outside of Santa Clara County?

Proposition 90 allowed the portability of base year values to a participating County. Santa Clara County was one of several participating counties in this program until it expired on March 31, 2021. Under Proposition 19, base year values can be transferred to any County.

What if I receive a property by gift or devise?

The replacement property must be purchased, or it will not qualify for relief.

How do I file for Proposition 60 relief?

The claim form for Proposition 60 relief can still be obtained through this website by clicking here or from the Assessor's Office.

When should I file?

The claim for relief must be filed within three years of the date the replacement dwelling is purchased or the new construction of the replacement dwelling is complete. The transfer of BOTH the original residence and the replacement dwelling must have occurred prior to April 1, 2021. If either transaction occurs on or after April 1, 2021 the transfer will be subject to the provisions of Proposition 19, which are generally more expansive.

What kinds of property qualify for relief under this Section?

Property tax relief under this section included, but is not limited to: single-family residences; cooperative housing corporation units or lots; community apartment projects; condominium projects; planned unit development projects; mobilehomes; and owner's living units that are a portion of a larger structure, all as prescribed in subdividsions (c)(1) and (2) of Section 69.5.

How many times can I make this claim under Proposition 60/90?

This is one time only relief. Claimants are monitored by the State Board of Equalization in order to prevent multiple claims.

When do I have to purchase the replacement home? What about selling my original property?

The replacement dwelling must be purchased or newly constructed within two years of the sale of the original property. The transfer of the BOTH original residence and the replacement dwelling must have occurred prior to April 1, 2021. If either transaction occurs on or after April 1, 2021 the transfer will be subject to the provisions of Proposition 19, which are generally more expansive.

Are land and improvement values reallocated at the time relief is granted?

No. The land/improvement ratio is retained. The only exception to this is when a Prop 13 base value is transferred to a licensed mobile home. Since the mobile home is not assessed, we need to make some adjustment to the allocation so that an allocated improvement value does not cause a distortion in the assessment.

How will I know whether the sale of my original residence and the purchase of my replacement residence still qualify under Proposition 60/90?

As many transactions are quite complex, it is best to contact the Assessor's Office prior to the completion of all of your transactions. The Assessor’s Office will be more than happy to discuss your situation.

Autumn Young

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Understanding Prop 13

IMAGES

  1. Key facts about the Transfer of Property Act, 1882

    transfer of property indian law

  2. Transfer of Property Act

    transfer of property indian law

  3. Certificate in Understanding Transfer of Property Law in India

    transfer of property indian law

  4. Modes of Transfer of Property in India

    transfer of property indian law

  5. The Transfer Of Property Act BY Dr. G.P. Tripathi Central Law

    transfer of property indian law

  6. Transfer of Property Act

    transfer of property indian law

VIDEO

  1. The Transfer of Property Act, 1882 (Part-2) by Mr. S. Mukunth

  2. Lok Sabha Passes Three New Criminal Law Amendment Bills

  3. Transfer of property act

  4. Lecture 1: Transfer of Property Law and Indian Easements Act 1882 by Prof.Jatinder Khatri(LL.M./NET)

  5. Main Precautions to Buy Property

  6. Transfer of property Act, 1882 Introductions to Basics (Second Part): Venkatasudharshan D.R

COMMENTS

  1. PDF THE TRANSFER OF PROPERTY ACT, 1882 ARRANGEMENT OF SECTIONS

    1. Short title. Commencement. Extent. 2. Repeal of Acts. Saving of certain enactments, incidents, rights, liabilities, etc. 3. Interpretation-clause. 4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act. CHAPTER II OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

  2. Transfer of Property Act 1882

    The Transfer of Property Act 1882 is an Indian legislation which regulates the transfer of property in India. It contains specific provisions regarding what constitutes a transfer and the conditions attached to it. It came into force on 1 July 1882.

  3. Transfer of Property

    January 17, 2023 | Real Estate Property Transfer is how the title of the property can be transferred under Section 5 of the Transfer of Property Act 1882, and change of ownership from one person to another person can be done.

  4. Property Law in India: Navigating Ownership, Rights, and Legal

    Property law in India is a multifaceted legal framework that governs the ownership, transfer, and management of real estate and other forms of property. With a rich history and diverse cultural influences, India's property laws have evolved over time to address the complexities arising from urbanization, rapid economic growth, and societal changes.

  5. Transfer of Property Act, 1882: TPA Facts, Application, Features

    The Transfer of Property Act (ToPA), 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings. One of the oldest laws in the Indian legal system, the Transfer of Property Act is an extension of the law of contracts and runs parallel to the succession laws.

  6. Transfer of property ownership in India has specific regulations

    Property Transfer is the only way by which change of ownership from one person to another person can be done. Any person who wants to actively control, manage, build, mortgage or sell a real estate asset, needs to have ownership of such an asset.

  7. Transfer of property and conditions for valid transfer

    "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, 1 [or to himself] and one or more other living persons; and "to transfer property" is to perform such act. 1 [In this section "living person" includes a company or association or body of indi...

  8. Transfer of property Act

    No. of Report Title of Report Year of Submission View Report 70 The Transfer of Property Act, 1882 1977 Accessible_(PDF 7.57MB) 157 Section 52: Transfer of Property Act, 1882 and its Amendment 1998 Accessible_(PDF 6.06MB) |Accessible_Hindi(PDF 5.82MB) 181 Amendment to Section 106 of the Transfer of Property Act, 1882 2002 Accessible_(PDF 125KB) |Accessible_Hindi(PDF 2.69MB)

  9. Rules relating to transfer of property

    The transfer of property must take place between two or more living persons. 2. The property transferred must be transferable. 3. The transfer must not be opposed to the nature of the interest affected thereby or for an unlawful object or consideration or to a person legally disqualified to be a transferee. 4.

  10. Property Law in India: History, Types & Best Books

    The Transfer of Property Act is a law, in India that governs and establishes guidelines and procedures for the transfer of property more specifically, immovable property like land and real estate. It sets out the principles and procedures for transferring property through means such as sale, mortgage, lease, gift and exchange.

  11. Concept of Transfer of Property

    The transfer of property act 1882 is an the Indian legislation that governs and regulates the transfer of property in the Indian subcontinent. It was enacted on the 17th of February 1882 and officially came into force on the 1st of July 1882. The act covers movable and immovable, tangible and intangible assets (copyrights, trademarks and patents).

  12. Property Law: Section 44 of the Transfer of Property Act, 1882

    We can say that the transferee becomes the co-owner. Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction. # What is a dwelling house and undivided family for the purpose of this section.

  13. General Reference To The Transfer of Property Laws In India -Section 5

    Section 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, 1 [or to himself] and one or more other living persons; and "to transfer property" is to perform such act. 1 [In this ...

  14. The Transfer Of Property Act, 1882

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

  15. Understanding the nexus between Real Estate Property Laws and

    In India, the subject matter regarding the Transfer of Property is given in The Transfer of Property Act, 1882. However, the Act has been tweaked and amended from time to time to meet the contrasting social necessities, but it was efficient as a whole and it embraces most of the fundamental principles and concepts related to the real estate ...

  16. Property Law

    The Transfer of Property Act and its provisions and basic concepts related to property laws have been explained systematically. Apart from the sale and transfer of property, the course will also help students learn about property laws in the context of mortgage, lease and gifting.

  17. Rights of legal heirs and property inheritance law in India

    Rights of legal heirs and property inheritance law in India Introduction Property is one of the essential elements a person makes during his lifetime for many purposes like investment or an essential shelter requirement. Property can be of two types self-acquired property and ancestral property.

  18. Modes of Transfer of Property

    The various ways or modes of transfer of immovable property are : Sale - Section 54:- this is the first mode of transfer of property. It includes entering of a sale contract between two parties. Under this contract the various conditions of a valid contract as stipulated in section 2 of the indian contract act has to be compiled with.

  19. Parent to/from Child (on/or after 2/16/21- Prop 19)

    First, the date the property is legally conveyed to the heirs must occur on or after February 16, 2021. Second both the parents prior to the transfer and at least one child after the transfer must be the principal resident within one year of the transfer. Third, the amount transferred is limited as described below.

  20. Parent to/from Child (on/or prior to 2/15/21

    The parent-child transfers under Proposition 58 include all types of transfers of title from parents to children or from children to parents. Transfers must occur on or after November 6, 1986, the effective date of the Proposition. They may be in the form of a deed (recorded after November 6, 1986), an inheritance from someone who was deceased ...

  21. Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD

    Make sure you are looking at the deed which gives you ownership of the property. Look for a name like "Grant Deed," "Quitclaim Deed," "Interspousal Deed," "Corporation Deed," or "Transfer Deed." Ignore any "Deed of Trust." That is related to the mortgage on your property. It will not have all the information you need.

  22. Transfer Assessed Values FAQ (Proposition 19, 3, 58, 60, 90)

    Provided the property has not been sold to third parties, prospective relief is available from January 1 of the assessment year in which an exemption claim is filed. To obtain a Proposition 58 Claim form go to the forms section of this website or please contact the Property Transfer Unit at (408) 299-5540.