Operation of transfer : Section 8

Section-8 Operation of transfer.—Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Section 8 incorporates following provisions of law respecting operation of a transfer:

(1) An unqualified or, unconditional transfer conveys all the interests of the property possessed by the transferor.

(2) Legal incidents appertaining to the property transferred also pass on to the transferee.

(3) For any different intention of the transferor, the rule of interpretation is that is to be inferred from the surrounding circumstances and by construing the whole instrument.

Unqualified or, Un-conditional Transfer

Where the transferor does not lay down any condition it is presumed that the transfer is unqualified.

For example, if the transferor intends to transfer the ownership of his house without any consideration, he would execute a deed of gift. Such deed of gift results into the passing of an absolute interests in the house to the donee and also all the legal incidents belonging to it. He need not mention the details of the interest and their legal incidents; the law shall presume that the transferor intends to pass on to the donee everything connected with the house.

Legal Incidents of Transfer-

Legal incidents of a property are everything which belong to that property by way of its necessary consequence or which necessarily depend on such property.

Thus, a house has several incidents appertaining to it, such as, right of easement, right of enjoyment, right to get rent from it etc. etc., and also the duty of pay its revenue of taxes. If the owner of the house sells it, the purchaser shall get not only the building or the material structure but also all its legal incidents.

Debts – The ‘debt’ as contemplated here must be perfected and absolute, not of uncertain nature. Section 8 refers to property in existence at the date of the transfer.

Unless different intention is expressed or implied – It is possible that transferor reserves some of the interest with him and provides expressly that a particular interest or incident of the property may not pass on the transferee.

The transferor may express his intention by using an appropriate word for what he wants to transfer. For example, if he uses the word ‘lease’, it would mean that he intends to transfer only the right of occupancy not ownership.

But sometimes the words are not clear. Here intention prevails. Thus, upon execution of the deed of sale, the question as to whether title passes to the vendee or not depends upon the intention of the parties.

Intent and surrounding circumstances prevail over the nomenclature.

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