Important Terms Under Transfer of Property Act [Redirects to CLATalogue]

Check out these important definitions under the Transfer of the Property Act!

Heir Apparent

An heir apparent is a person who is next in line to inherit property, either because they are the direct descendant of the current owner or because they have been designated as the heir in a will or trust. They have a chance of succession and expectancy does not amount to an interest in the property and cannot be made the subject matter of a transfer.

The heir apparent has certain rights and obligations, for example, if the current owner of the property dies without leaving a will, the heir apparent will inherit the property as the rightful heir.

In addition to that, the heir apparent may have certain obligations, such as paying any outstanding debts or taxes on the property before taking possession. It is important to note that the rights and obligations of an heir apparent may vary depending on the jurisdiction and the specific circumstances of the case.

Immovable Property

Immovable property refers to land, buildings, and any permanent fixtures attached to them. Under the Transfer of Property Act, 1882, immovable property can be transferred from one person to another through various means such as sale, lease, gift, mortgage, or exchange.

When a person transfers immovable property to another, the transferee becomes the owner of the property and acquires all the rights, title, and interest in the property. However, the transfer of immovable property may be subject to certain conditions, restrictions, or limitations as agreed upon by the parties involved in the transaction.

Attestation

Under the Transfer of Property Act, 1882, attestation refers to the process of verifying the execution of a legal document by a person who is authorized to do so. Attestation is required for certain documents, such as deeds of sale, gift, mortgage, lease, or exchange of immovable property, to make them legally valid.

Essential conditions of a valid attestation:

• Section 59 of the Transfer of Property Act requires that certain documents related to the transfer of immovable property must be attested by at least two witnesses.
• The witnesses must sign the document in the presence of the person executing it, and the signature of the person executing the document must also be affixed in the presence of the witnesses.
• It is not necessary for both witnesses to be present at the same time.
• No particular form of attestation has to be followed.
• The witnesses who attest to the execution of the document must be competent to testify in a court of law and must not have any interest in the property being transferred.
• The attestation of the witnesses provides evidence that the document was executed voluntarily and with the full understanding of the parties involved.

Actionable Claim

Under the Transfer of Property Act, 1882, an actionable claim refers to any claim that can be enforced in a court of law. An actionable claim can be transferred from one person to another, either by assignment or by creation of a charge. The right to sue for damages in case of breach of contract, right to receive benefits under a contract etc. are actionable claims.

The transfer of an actionable claim can be made by a written instrument, such as an assignment deed, which must be signed by both the assignor (the person transferring the claim) and the assignee (the person receiving the claim). However, certain actionable claims, such as claims for personal injury, cannot be assigned or transferred as they are based on personal rights and cannot be separated from the person to whom they belong.

Presumption of Notice

Presumption of notice under Transfer of Property Act presumes that a person who has a registered interest in immovable property has constructive notice of any other registered interests in that property. This means that the person is deemed to have knowledge of any registered transactions involving the property, even if they have not received actual notice of those transactions.

The presumption of notice applies to all registered transactions, such as deeds of sale, gift, mortgage, lease, or exchange of immovable property. Such presumption is based on the principle that the registration of a transaction provides public notice of that transaction and is intended to protect the interests of third parties who may have an interest in the property. It is therefore important for anyone acquiring an interest in immovable property to conduct a thorough search of the property’s title and any registered transactions before completing the transaction.

When does the presumption of notice not apply?

Presumption of notice doesn’t apply in cases when the registered transaction is fraudulent or has been made with the intent to deceive or defraud a third party. In such cases, the party who has been defrauded may be able to challenge the validity of the transaction and seek appropriate legal remedy.

You can find more notes on Transfer of Property here!

Source: Lawctopus