Transfer of Property Act, 1882 came into force on 1st July, 1882. Two chief objects of the Act: –

Regulate transfer of property between living persons; Complete the code of contract law for immovable property.

Act does not purport to be exhaustive. It doesn’t cover each and every aspect of transfer of property.

Broadly two types of property transfers

1. Transfer of property by operation of law

Inheritance Insolvency Forfeiture Sale in execution of decree By Will

2. Voluntary transfer of property by act of parties (inter vivos):

Sale Mortgage Gift Exchange Charge

• TP Act applies only to this 2nd category

Section 5 of the Transfer of Property Act, 18821 defines “transfer of property”. Transfer of property means an act by which a living person conveys property to one or more other living persons. Property means: (1) the thing itself, or (2) some or all the rights in a things. The provision of Section 3 of the Transfer of Property Act, 1882 does not provide for a comprehensive definition of ‘immovable Property’, however, it only mentions that ‘immovable property’ does not include standing timber, growing crops, or grass. According to Sec.3 (26) of the General Clauses Act, 1897 the “Immovable property shall include land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth”. “Attached to the earth” means:

Rooted in the earth (like tree and shrubs) Imbedded in the earth (like walls etc.) Attached in such a way which gives permanent beneficial enjoyment.

So, Immovable Property:1. It includes land, benefits to arise out of land, and things attached to the earth.2. If the thing is fixed to the land even slightly or it is caused to go deeper in the earth by external agency, then it is deemed to be immovable property.3. If the purpose of annexation of a thing is to confer a permanent benefit to the land to which it is attached, then it is immovable property.

“Transfer of property” definedSection 5 of the act states about the Transfer of property as;-

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, or to himself and one or more other living persons; and “to transfer property” is to perform such act. In this section “living person” includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Strength Here, living person is not defined as straightly. ‘Living person’ has been defined to cover

a company or association or body of individuals whether incorporated or not. Here, the definition of transfer of property in this section does not exclude property

situated outside Bangladesh or the territories to which the TP Act exercises. There is an opportunity in this section to transfer property in future. “But nothing herein contained shall affect any law for the time being enforce relating to

transfer of property to or by companies associations or bodies of individuals” - This narration produce a smooth link in case of dealing with two variant source i.e., TP Act and the personal law of the company, associations etc.

The evolution transfer of property as stated in this section is mass enough to cover any transaction which has the outcome to conveying property from one living person to another.

Weakness “Property” has not been defined here. It would not include a mere right to sue or a mere chance of succession. It will not affect any law for the time being in force relating to transfer property to or by

the living persons. When it is said that, both persons must be living it is implied that transfers by will do not

come within the scope of the section for such transfers come into effect after the death of the person executing a will. But an interest may be created in favor of an unborn person according to section 13. And this is an adverse point.

It does not indicate the existent time of the transfer. Here, this section contains the chance to transfer the property in future which may

create a scope for fraudulent activities. It does not define the legal effectiveness on the transfer of property. The definition of transfer in this section is not applicable to the partition Act, where it

simply means a change of ownership. It is decided from Sohni V Raj Kumar Singh (1932) ILR54.

This section does not apply in respect of the property sold in Auction sale. And it is decided in the case Krishna Mohan V Bal Krishna Chaturvadi AIR 2001 All 334.

What may be transferred?Section 6 of the act states about what may be transferred or not as;-

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

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

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

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be

transferred by him.

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

(e) A mere right to sue cannot be transferred.

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

(g) Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.

(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Contract Act , 1872, or (3) to a person legally disqualified to be transferee.

(i) Nothing in this section shall be deemed to authorize a tenant having an untrasnferable 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.

Strength

This section explains the nature of the property liable to be transferred under the provision.

This section says “Property of any kind” implies every possible interests or right that can be possessed and is a subject of ownership.

It can be tangible or intangible. Another dynamic part of this section is that, the prohibition in regard of transfer of

easement which is related to the interest of both parties. A mere right of re-entry for breach of a condition subsequent cannot be transferred to

anyone except the owner of property affected. A mere right to sue can’t be transfer and the object behind this prohibition is to prevent

gambling in litigation which is a very much constructive and visual advancement. Section 6 of the act makes an inter-link with the section 23 of the Contract Act, 1872,

which deals with the prohibition of the transfer in regard of unlawful object or consideration.

This section tights the personal right by making the prohibition in regard of transfer of pre-emption right.

Weakness

It does not defined about “Property of any kind”. The chance of Spes Successions is excluded from the category of transferable property. Here, this section includes some prohibition based upon the public policy which may

create the chance of wrong explanation. It will not affect any law for the time being in force, so this is totally unfruitful. The present section does not apply in terms to Mahommedans Law. So, there remains a

chance of contradiction.

Persons competent to transfer

Section 7 of the Transfer of Property Act runs as follows-

Every person competent to contract and entitled to transferable property, 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.

Strength

This section provides that every person competent to contract; as example a major and of sound mind or is not disqualified by law for contracting.

This section adds that the person competent to transfer must either be entitled to or authorized to dispose of property transferable by law.

Any person competent to contract may transfer a property where he is not the main owner by the power of attorney.

And here a person compatible to transfer may transfer his property either absolutely or conditionally. In the latter, case the conditions comply with the law give the party a discretionary power and independent decision making power.

Weakness

Minor cannot sell the property but he can purchase the property. Although a minor is not competent to be a transferor yet a transfer to a minor is valid. And it destroy the chance of equality of law.

A vendor cannot pass a title to the property better than he himself has in the property to the vendee.

The word “conditionally” may create the chance of deceptive. Generally any foreign citizen has no right to transfer the property in Bangladesh. This section added more condition then general to the capacity to transfer where

purdanashin ladies are involved. A person cannot confer of another better title to any property than he himself has. Here, the transfer by an agent there is a lot of space to explain which effect the decision

of the count.

Operation of transfer

Section 8 of the act provides that;-

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

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

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

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

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

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

Strength

The power of using the transferred property has provided when the transfer is done. It creates an immediate action in case of passing property to the transfer according to

the first Para of section 8. Unless a different intention is implied, a transfer of property passes immediately to the

transferee all the interest. For exercising this section the construction of deeds have to be tested. All transferable interest and legal incidents of the transferor passes forthwith to the

transferee. The grant of land must be taken to be not only of the land but also of everything

beneath or within the land. Here dynamic point of this section is that in case of operation of transfer its subject

matter is enough wide, as machinery attached to the earth house, money, debt etc.

Weakness

Property may be considered to be “specified” if it is defined so that there may be no difficulty is its identification.

One limitation is that it does not apply to the court sales. When the transfer of any land is to be made, all the immovable part of machinery

attached to that land also transferred with the land. The section is not settled to lay down rule as to what words are necessary to effect a

transfer of a particular kind of property. In the absence of any reservation in the minerals necessarily pass with the rights to the

surface. If the transferor transfers his or her property with no condition, then he or she will

never claim that he or she may hold any right on that property. There is an opportunity to set up own terms and condition of the parties in the

construction deeds which may create a chance of fraud.

Oral transfer

Section 9 of the Transfer of Property Act states that;-

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

Strength

This section lays down that a transfer may be made without writing in every case in which a writing is not expressly required by law.

Partition of property can be made without writing on general principles of law if not under this section.

Weakness

Where written transfer is necessary oral transfer must be excluded. Orally transfer may create the chance of fraudulent.

Condition restraining alienation

Section 10 of the act runs as follows;-

Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him : Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, 7 [ Muslim] or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

Strength

This section provides that where property is transferred subject to a condition absolutely restraining the transferee from parting with his interest in the property, the condition is void. And this provision secures the transferee’s right to transfer the property.

There are some conditions which are declared void by the act, and the transfer takes

effect as if no such conditions had been attached to the transfer. It has been held that a restriction for a particular time is not a partial but an absolute

restraint. Renand Vs. Tourangean. A condition in a deed of partition that if any co-parcener were to sell his share in a

residential house, other co-parcener would be entitled to buy it was held to be void.

Weakness

A lease is an exception to the rule contained in this section. A condition restraining alienation may be imposed when the property is transferred to a

married woman is not a Hindu, Mohammedan or a Buddhist. A condition imposing a partial restraint on alienation is valid. A compromise by way of settlement of family disputes has been held to be valid,

although it involves an agreement in restraint of alienation. Section 10 does not apply to family settlements and partitions. it is decided in the case

named K Munusuamy V K venkatasuamy AIR 2001. Restriction repugnant to interest created

Section 11 of the Transfer of Property act states that;-

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

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

Condition making interest determinable on insolvency or attempted alienation

Strength

The principle of this section applies as much to mortgage and leases as to gift or sale. The Primary paragraph of the section 11 ensures the enjoyment of the transferee by

making the direction of specific manner to enjoy, void. The next paragraph of section 11 takes care of the beneficial enjoyment of another

piece of property adjoining to the main property. By putting the specific condition in case of enjoyment. It ensures the enjoyment right of another party related to the subject property.

Weakness

Where the property transferred is already under a charge, which is but a condition, section 11 will not apply, as in that case.

This section does not apply, unless the transfer creates an absolute interest in the transferee.

The transferor may impose conditions restraining the enjoyment of land if such restrictions are for the benefit of his adjoining party.

The second paragraph of section 11 can be enforced only by the transferor and not by the transferee of another portion of the property. So, it demolish the balance of the right between two parties.

Condition making interest determinable on insolvency or attempted alienation

Section 12 of the act runs as follows;-

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

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

Strength

This section provides that the grantee shall cease to have any right on becoming insolvent or that he shall cease to have any interest on attempting to alienate property, is void.

This section made subject to an exception in the case of lease.

Weakness

This section is an exception to the general principle embodied in sections 31 and 32.

It is manifestly unjust that the transferee should enjoy and possess all the indicia of absolute dominion over the property, and yet be deprived of the right of alienation incidental to such ownership.

It is equally unjust that creditors who may have made advances on the strength of the property should be deprived of its security.

Transfer for benefit of unborn person

Section 13 of the act provides that;-

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

Illustration

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

Strength of section 13:

The interest of the unborn person must be preceded by a prior interest. According to this section a transfer can’t be made directly to an unborn person. If a

transfer where made directly to an unborn person there would be an abeyance of ownership from the date of transfer till the coming into existence of the unborn person. This section solved this problem.

The entire property must be transferred to the unborn person. It says that there should be created an absolute interest in favor of unborn person.

Weakness:

The section recognizes numerous distinctions based on age.

I suppose section 13 makes an inconsistency to section 5. As, section 5 defines that, transfer of property must be between two living persons. But section 13 gives permission to transfer property to an unborn person.

Unborn children do not have the same legal rights as others in any state in the union. Unborn children can be freely killed at any time through abortion.

Rule against perpetuity

Section 14:

No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.Transfer to class some of whom come under sections 13 and 14.

Strength

The policy of this law has been to prevent property from being tied up forever. And this is most strong standing point of this section.

The rule against perpetuity applies to movable as well as to immovable property. This decision arises from Cowsaji V Rustomji (1896) ILR 20.

Weakness

In English law allows 21 years in gross after life or lives in being while our law permits only the period of minority after a life or lives in being.

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

Section 15:

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

Strength

This section applies only in a case in which the whole class is interested to be benefited. It does not apply where there is no benefit to a class.

Indirectly this section supports the doctrine of cy-pres which is an equitable policy.

Transfer to take effect on failure of prior interest

Section 16:

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

Strength

According to this section, a valid transfer which subsequent to and dependent upon a void transfer is itself rendered void. And so it ensures the rule of law.

Direction for accumulation

Section 17:

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

(a) the life of the transferor, or

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

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

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

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

(iii) the preservation or maintenance of the property transferred; and such direction may be made accordingly

Strength

This section has been given a specific time beyond which the accumulation of income cannot be extended. So that the property cannot be as ownerless. And it gives the idea of the rules against perpetuity.

The third exception gives protection for the purpose of the preservation or maintenance of property transferred.

Weakness

The exception of this section may destroy the main philosophy of the section.

Transfer in perpetuity for benefit of public

Section 18:

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

Strength

This section put emphasis on the benefit of the general people for the purpose of public interest.

Weakness

In case of dealing with the public interest in the advancement of religion, knowledge, health etc. it may create some irrelevant situation to the rule of law.

This section does not talk about the procedure for the fulfillment of object laying in the exception.

Vested interest

Section 19:

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

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

Explanation.-An intention that an interest shall not be vested is not to be inferred merely from

a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

Strength

According to this section an interest may be vested even though it does not give a right to immediate possession.

Subject to the second Para of the section 19, a vested interest is secured thought the transferee is dead.

The law supports the property to be vested. And in order to secure the vested interest law implemented this section.

According to the explanation of this section. “Where by income arising from the property is directed to be accumulated until the time of enjoyment arrives” -Secures the right of another person.

When unborn person acquires vested interest on transfer for his benefit

Section 20:

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

Strength

The interest containing in this section is a vested interest of an unborn person as that person is born.

Here, his vesting interest will not be affected by the absence of possession. This section contains scope for the founder to put in his contrary intention.

Contingent interest

Section 21:

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

Exception.-Where, under a transfer of property, a person becomes entitled to an interest

therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

Critical Analysis of Section 21:

There is indeed a strong presumption that on a transfer of a property the transferor intends to confer a vested interest in the transferee unless a contrary intention appears from the terms of the transfer.On the other hand where on a transfer of property an interest is therefore created in favor of a person to take effect only on the happening of an uncertain event such an interest has been referred as contingent one. But this has been construed very strictly that when such an event happens or in case the happening becomes impossible then the interest thereof becomes vested interest. This is perhaps the strongest aspect of section 21 dealing in the matter of contingent interest. Because the principles of law always favor vesting of an interest perfectly that is why the aforesaid provision is in the favor of vesting so in compliance with the principle of law. The exception containing in section 21 again in dealing that when a person is entitled to an interest upon attaining of a certain age and it is directed that the income thereupon arising from the property is absolutely be given when he attains that particular property such an interest is not to be regarded as contingent but as vested.

Transfer to members of a class who attain a particular age

Section 22:Where, on a transfer of property, an interest therein is created in favor of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.

Strength

This section lays down the option to choose for the transferor to whom the interest will be vested.

Weakness

There may be discriminated in case of choosing the person interest to be vested.

Transfer contingent on happening of specified uncertain event

Section 23: Where, on transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest falls unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist. Transfer to such of certain persons as survive at some period not specified

Strength

The strong standing point of this section is that it prevents property remaining without any owner.

Weakness

Here may arise the problem to ascertain the interest as vested or contingent.

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

Section 24:Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.

Illustration

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

Conditional transfer

Section 25:

An interest created on a transfer of property and dependent upon a condition fails if the fulfillment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed a public policy.

Illustrations

(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.

(b) A gives Tk. 500 to B on condition that he shall marry A's daughter C. At the date of the transfer C was dead. The transfer is void.

(c) A transfers Tk. 500 to B on condition that she shall murder C. The transfer is void.

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

Strength

This section deals with condition precedent. It imposes some condition by which a contract will get its legality or not.

This section expressly gives an opportunity to the court in regard of checking validity of the transfer.

This section secures the interest of enjoyment of another person’s property.

Weakness:

To detaining weather the transfer is immortal or opposed to public policy give the parties change to make fraudulent and debate which may be totally not necessary.

Fulfilment of condition precedent

Section 26:

Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.

Strength

By putting the word substantially complied with this section gives a very strong legal back up to the condition precedent of a transfer.

This section favors the early vesting of property and equality.

Weakness

In case of ascertaining of “Substantially complied with may create a change of unnecessary legal debate and misinterpretation of the legal term.

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

Section 27:

Where, on a transfer of property, an interest therein is created in favor of one person, and by the same transaction an ulterior disposition of the same interest is made in favor of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.

But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.

Strength

It makes the transaction flexible by putting the statement” …….. Although the failure may not have been occurred in the manner contemplated by the transferor.

The second paragraph of the section gives strength to the standing position of the transferor

Weakness

The second Para may create difficulties in the performance of the party. And the intention of the parties to the transaction may be fraudulent.

Ulterior transfer conditional on happening or not happening of specified event

Section 28:

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

Strength

This section creates an inter-link between makes this section more legal.

Weakness

As this section contains conditional limitation there may be imposed hardship to the transaction and chance of exercising fraudulent.

Fulfilment of condition subsequent

Section 29:

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

Illustration

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

Strength

This section is based on the general rule of law that conditions subsequent which are intended to defeat vested interests are to be constructed strictly.

Weakness

The term ‘Strictly fulfilled’ may sometime cause the transfer of property in very difficult situation and for which transfer may rendered impossible.

Prior disposition not affected by invalidity of ulterior disposition

Section 30:

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

Illustration

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

Strength

The general rule is that if the prior interest is invalid then the subsequent interest also fails. But here though altering disposition is invalid the prior interest is not affected by this.

Weakness

There may difficulties to specify the validity of the ulterior disposition.

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

Section 31:

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

Strength

The condition referred to in this section is a condition subsequent which terminates an interest and revert in the grantor.

Weakness

This section applies only to a complete transfer of property not to a contract for transfer with a condition superadded thereto. This is a limitation of this section.

Such condition must not be invalid

Section 32:

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

Strength

Section 32 put emphasis on that the condition subsequent should be valid otherwise it will not have the effect of terminating the interest to which it is attached.

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

Section 33:

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

Explanation of the section 33:

This section says that the person under this section is entitled to the interest upon a performance of condition subsequent it is broken not only when the person does an act which renders performance impossible but also when he does not act which performance in indefinitely postponed.

Transfer conditional on performance of act, time being specified

Section 34:

Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the non-fulfillment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfillment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to

make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfillment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.

Strength

This section says, it the performance is prevented whether subsequent or precedent by a person interested in non-fulfillment the delay is excused and the condition discharged this section prevents a man to take advantage of his own wrong.

Weakness

There may have chance to arise problem in case of ascertaining the fraud of another interested party.

Election when necessary

Section 35:

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

subject nevertheless,

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

and in all cases where the transfer is for consideration,

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

Illustrations

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

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

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

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

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

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

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

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

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

Illustration

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

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

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

Strength

The person taking the benefit of an instrument must also bear the burden. The grounding of this section is its most potential point end it is that a person receiving

the opportunity of an instrument must also bear the load. The doctrine is based on intention to this extent that the law presumes that the author

of an instrument intended to give effect to every part of it. The theory can only exercise if a benefit in the real sense is created by the instrument. This section states the rule for the facility of the transfer of the property. The principles of equity is founded by this section.

Weakness

The third paragraph of this section contains an unfair rule. It removes the liability upon the person who indirectly benefited from the transaction this may create chance to practice fraud.

The first paragraph of the exception rule also gives extra benefit to the party which is conferred by the same transaction.

The third Para and fifth Para of the exception may contain the chance to do fraud.

Conclusion:

As no law is perfect for all the time and to every circumstance, so there needs amendment and further project to find the loopholes of the law. Therefore The Transfer Of Property Act 1882 is also not beyond the periphery of this supervision. As much as this supervision is to be continued the loopholes of this Act will be removed. It is more necessary in regard to this law as it is dealt with very much practical subject i.e., the transfer of the property it is to be sophisticated through the process of time to be compatible and fulfill the demand of the time and circumstances.