history,scope and preamble of the t p act

7/29/2019 History,Scope and Preamble of the T P Act

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History of the Act, 1882.

Scheme of the Act, 1882.

Preamble of the Act, 1882.

Scope of the Act, 1882.


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The draft bill of the present Act wasprepared by the law commission consisted of

Lord Romily, Sir Edward Rayn, LordSherbrook, Sir Robert Lush, Sir JohnMacleod.

The draft bill was passed into law on 17th

Feb., 1882.


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Before 1882, when the present Act came into being, thetransfer of immovable property in India were governed by theprinciples of equity. Most of the provisions of The Act,

1882 had been based on the decisions of the court of Equitybefore 1884.

In the absence of any specific provision, the Anglo-Indian

courts had to fall back on English law on real properties.

Sometimes, the courts had to decide the case according totheir own notion of justice and fair play. The result was that

the case law became confused and conflicting.


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To remedy this state of affairs, a law commissionappointed in England to prepare a code of

substantive law of transfer of properties in India. Since the passing of the transfer of property Act,

1882. Its provision were amended on 12th occasion

but no general revision of the Act was undertakenor any new principles of importance or substanceintroduced.


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Sec. 2[c]:Nothing herein contained shall be deemed toaffect any right or liability arising out of a legal relationconstituted before this Act comes into force, or any relief

in respect of any such right or liability.

Thus the operation of the Act is prospective as an

enactment pertaining to properties should not be givenretrospective operation.


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Preamble of the Act sets out the main objective which thelegislation is intended to achieve.

The significance of preamble in respect to interpretation ofthe Act: in case of ambiguity to explain and elucidate.


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The Act regulates transfer by act of parties and not byoperation of law.

: sale, exchange, lease, mortgage,

actionable claim. under execution of a decree,

auction sale under insolvency or liquidation proceedings

forfeiture by the state etc. But even the Act is not exhaustive of regulate all transfer

by act of parties: ex. Pledge of moveable property, govt.

promissory notes, insurance policy etc.


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The scope of the Act is limited not exhaustive. As there are following limitations to the applicability of

the Act:

1. The Act regulates transfer by act of parties not byoperation of law.

2. The Act deals with only transfer i.e. betweenliving persons. Thus a transfer which takes effect under awill or through succession is not covered by the Act.


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3. Sec. 2/sec. 129 saves the rules of Mohammedon law inso far as they are inconsistent with any of the provisionscontained in Chapter 2 and .

Thus a muslim may settle property in perpetuity for thebenefit of his decedents, provided there is an ultimate gift infavour of charity. [ The Wakf Validation Act, 1913 ]

4. Territorial limits


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Thus we can say that the Act is not exhaustive and it doesnot profess to be complete code.

It does not contain complete law for all kind of transfer

of property in India. It is evident from the in the preamble. Thats why in case

of lacuna found in the Act, such lacuna can be filled by

the exercise of principles of equity, justice and goodconscience if its application is found suited to Indiansociety and circumstances.


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: definition clause, extent and scope of the

Act.

Definition of transfer of property What property may be transferred. Who can transfer. Conditional transfer Rule against perpetuity

Rule of election Interest : vested and contingent. Transfer of Immovable property; Sec.38-53A: Transfer by

ostensible owner, Rule of estoppel, Doctrine of lis pendense,

fraudulent transfer and Part performance.


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of Immovable Property.

and charge.

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: Transfer of .

history,scope and preamble of the t p act

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