Sec.- 7 Person competent to transfer– 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.
Essentials of a valid transfer – Transfer of property is an act by which a living person conveys certain properties absolutely or conditionally and in present or in future, to another living person. In a valid transfer of property, following essential conditions must be fulfilled:
(1) The property must be a transferable property. According to Section 6 of the Act, there should not be any prohibition in the transfer of that property by any law enforced in India. Section 6 also specifies certain non-transferable interest e.g., Spes-successionis, right of re-entry, easements etc. Transfer of any non-transferable property is void.
(2) Transferor must be competent. At the time of transfer, the transferor must be a competent person. According to Section 7, any person who is competent to contract is also competent to transfer a property. Thus, any person who is adult (i.e., attained the age of majority), has a sound mind and is not otherwise disqualified, is competent to transfer a property).
(3) The transferor must also have right to transfer the property being transferred. According to Section 7 besides being competent, the transferor must also have the title in the property.
A tenant cannot make a gift of the house in which he is tenant because although he is sane and adult, but is not owner of the house.
(4) Transferee must also be competent. The transferee need not have the capacity, i.e. age of majority and sound mind. All that is required for being a competent transferee is that the transferee is a living person in existence at the date of the transfer. However the transferee should not be legally disqualified to be a transferee. Officials of the Court or judges cannot be transferee of actionable claims under Section 6(h) (iii) of the Transfer of Property Act.
(5) Necessary formalities prescribed by law for the transfer must also be completed. The transfer of Property Act makes provision for various kinds of transfer of property e.g. sale, gift, exchange, mortgage, lease and the transfer of actionable claims. These specific kinds of transfer have their respective procedure as laid down in this Act or in the Indian Registration Act.
Generally, there are two modes of transfer of property, registration and delivery of possession. In some cases writing is sufficient. Where writing is not necessary, the transfer may be made without registration and writing i.e. simply by delivery of possession.
Competency of the Transferor
Entitled to Transfer: Authority for Transfer—The transferor must be entitled to transfer the property concerned. He is entitled to transfer the property if he has title of the property or if he has no such title, has got the authority to transfer it.
If a person is transferring absolute interest he must have ownership in the property. If he is transferring partial interest he should have partial interest in the property.
If a person makes a sub-lease of certain property he must be lessee of that property. Without having title or interest in the property, the transferor has no right to transfer it. A person who is not owner of a property may have right to transfer that property under an authority given to him by the owner of such property. An agent who is authorized by the principal to transfer certain property, has right to transfer that property.
Operation of Transfer – Unless a different intention is expressed or necessary 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 incident 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 movable 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 there of (except where they are also for other debts or claims not transfered 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.
