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PROPERTY LAW PROJECT

ORAL TRANSFER (SECTION 9 OFTRANSFER OF PROPERTY ACT)

BY DEBMITA MONDAL

BA LLB, 3RD YEAR

KIIT LAW SCHOOL

BHUBNESWAR

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INTRODUCTION

Oral transfer- A transfer of property may be made without writing in every

case in which a writing is not expressly required by law.

Prior to the passing of the Transfer of Property Act, no writing was necessary for such transfer.

After passing of the act certain specified transactions are required to be in writing. For instance

title to the land cannot pass by mere admission when a statute requires a deed.

Section 9 says that a transfer of property may be made without writing in every case in which

writing is not expressly required by law. In Sarandaya Pillai v. Sankarlinga Pilai , Justice

Ramaswami of Madras High court Observed the test, therefore, in this country to determine

whether a transaction (be it a transfer or not) can be made without writing is to see if it is

expressly required by law to be in writing. If on the other hand, the transaction is not a transfer of

property and there is no express provision of law requiring it to be in writing, the general

principle referred to above will enable it to be validly made without writing. Section 9

underlines the general principle that everything is to be taken permissible unless there is a

prohibition against it and has been inserted in the statute ex abundant cautela.

DELIVERY OF POSSESSION

Generally movable properties may be transferred by delivered of possession. Month to month

tenancy, mortgage by deposit of title deeds, exchange of immovable property valuing less than

rupees one hundred, etc. can also transferred orally.

WRITING NECESSARY

The act requires transactions specified in sections 54, 58, (except mortgage by deposit of title

deeds), 105,118, 122, and 130 to be in writing. So also under Section 5 of the Trust Act, II of

1882, transfer which parties desire to register must be in writing. Gift of immovable property at

the time of marriage must be in writing and must also be registered. Section 9 of the Transfer of

Property Act would not apply to a case of transfer of immovable property made at the time of

marriage by a Hindu.

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A petition to collector admitting a transfer or recitals in another deed or mutation of names or

delivery of possession will not affect a transfer, if the Transfer of Property Act requires a

registered deed. A transfer of title requires a conveyance and this cannot be given effect by a

mere agreement.1

WRITING NOT NECESSARY

Transfer of property clearly recognizes oral transfers as rule unless there is law which expressly

requires that it should be in writing. A relinquishment by the mother of her interest in the joint

family property, even when the property consists of immovable property and the value of the

share therein exceeds Rs. 100, can be made without writing and registered instrument is not

required. Sale of property worth less than Rs.100 may be made either by a registered instrument

or orally by delivery of possession.

Alienation needs no written instrument. It is sufficient if the person entitled to the property does

an act which necessarily results in its transfer. An award relating to immovable property need

not be writing. A comprise of disputes resulting in transfer of immovable property, a partition of

immovable property, a transfer by possession followed by a deed of gift incomplete owing to

absence of registration and a transfer of land by husband to his wife during her lifetime in

discharge of future maintenance may be made without writing, and so a surrender of lease.

In Imperial Bank of India v. Bengal National Bank2, CJ Rankin said that partition, release

and surrender are all forms of transfer but that so far as the Transfer of Property is concerned,

they come under no restriction. A right to recover a share of immovable property may be

relinquished orally and without an instrument in writing.3

REGISTRATION

Transfer which are not expressly required by law to be in writing, if made in writing, are subject

to be requirement of registration if they purport or operate to declare, assign , limit or extinguish

a right, title or interest to or in immovable property of the value of Rs. 100 and upwards. Section

1G C Bharuka, Mulla The transfer of Property Act, 10

thEdition, Lexis Nexis Butterworths Wadhwa Nagpur, p.143

2(1931) ILR 58 Cal 136

3Lal Singh v. Chotey Beti (1934) All LJ 107

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9 of Transfer of Property Act would not apply to a case of transfer of immovable property made

at the time of marriage by a Hindu.

ORAL MORTGAGE

Where the sum secured is more than one hundred rupees, an oral mortgage is not valid, and no

evidence can be adduced to prove such mortgage. Where a mortgage has not been affected in

accordance with law, it cannot be proved by any other evidence.

DEED OF RELINQUISHMENT

A deed of relinquishment is in the nature of deed of gift, where the various properties dealt with

are always separable, and the invalidly of the deed of gift in respect of one item cannot affect its

validity in respect of another. Where the deed of relinquishment, was in respect of the individual

interest of the three brothers in the assets of the partnership firm in favor of the Trust, and

consequently, did not require registration, even though the assets of the partnership firm included

immovable property, and was valid without registration.

PARTITION

A partition between co-owners it may perhaps be said to involve a transfer of property because in

the specific properties allotted to a particular co-owner the interest which the others co-owners

had previous to the partition is given up and to that extent in may be said to be a property . But

the Transfer of Property Act itself does not expressly require such a partition to be in writing and

there is no other provision of law requiring such a partition to be evidenced by writing. Thus

partition of a joint family may be made orally and also a release by a mother of her interest in

joint family property.

To enable the parties to come to an agreement, namely, to treat a sale as a mortgage by a

subsequent agreement, no writing need be executed by and between the parties. There are

various instances of oral transfer.

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ORAL PARTITION

A partition may be effected orally, but if subsequently reduced to the form of a document and

that document purports by itself to effect a division and embodies all terms of a bargain, it will

be necessary to register it.

EXCEPTION

The English doctrine of part-performance extended by Privy Council to this country in Mahomed

Musas case which subsequently found into Section 53A of the Amending Act, 20 of 1929,

violates the rule in this section under circumstances mentioned therein. The doctrine is an

encroachment on the rule that when the Act prescribes the mode of transfer , the transfer may not

be made in any other way.