This article has been written by Sonu and has been edited by Oishika Banerji (Team
).
Exchange, social engagement, and transfer are mandated by the very nature of society. There are several circumstances and reasons why property, whether movable or immovable, is transferred from one person to another. The transfer might come in the form of a gift, an inheritance, or a full-priced purchase. While the applies when moveable property is transferred between two living people, the is applicable when an immovable property is transferred from one living individual to another. It is ideal to note that an exchange takes place when one item is transferred in exchange for another. The same has been governed under of the Act of 1882. This article serves as an explanation to the concept of exchange to its readers.
It is ideal to note that the practice of exchange of goods dates back to time immemorial and there have been several instances in the past where the evidence of people being in the exercise of exchange of their goods by means of the barter system. Exchange has been covered under Chapter VI of the Transfer of Property Act, 1882, comprising 4 sections only. This age-old concept has been in significance with its presence in property legislation owing to involvement of the concept of ownership in the same. Chapter VI consists of Sections 118 to 121 of the Transfer of Property Act 1882. The essentials of exchange have been provided hereunder:
Equal rights are granted to each party to the trade. The individual transferring ownership to the other is regarded as being in the seller’s position and is in possession of all the rights that a seller has when selling property. The individual who gets the property is regarded as a buyer, and as such, enjoys all the rights that a buyer is entitled to.
When on the receiving end, a person has the same rights as a buyer, including the right to receive goods in good condition and the right to sue for damages if it is not. He has the right to possess all rights over that property after getting transferred.
Money can’t be a thing in exchange, as the same is a stated regulation. However, Section 121 of the Transfer of Property Act, 1882 states that if money is transferred between parties, each party must vouch for the legitimacy of the money that has been handed over to the other party. If money is traded, it must be demonstrated to be real. Exchanges of money can happen at many different occasions. For instance, a visitor to the UK just has to have that nation’s money. Therefore, when he swaps his rupees for pounds, he is making a financial transaction.
There is no mention of the worth of the items exchanged in trade anywhere in the definition of exchange. Any value associated with a thing may be transferred to the opposite party by the parties trading goods. The fact that the two goods do not have an equal value is immaterial. Thus, the transfer must be voluntary and mutually agreed upon by the people trading the goods.
According to Section 119 of the Act of 1882, unless a contrary intention appears from the terms of the exchange, if a party to an exchange or any person claiming through or under such party is deprived of the thing or any part of the thing received by him in exchange due to any defect in the other party’s title, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for damages. or, at the discretion of the person so deprived, for the restoration of the object transferred, if it is still in the possession of the other party, his legal representative, or a transferee from him without consideration.
The three most crucial goals that must be met for a property transfer to be legitimate and legal in the eyes of the law are included in the idea of exchange as a method of transfer.The three objectives are :
● Mutual exchange
● The object of exchange must be lawful
● Impermissibility of oral exchange.
This mostly shows that the parties are in agreement and ready to transfer or swap goods for one another. For example, if A transfers his property to B, B must transfer his property in Exchange to A. It is crucial that both parties contribute to the transfer.
In order to secure the interests of the parties and to prevent their exploitation, the transferor and transferee are also given certain rights when property is transferred in an Exchange. The rights and obligations of the parties are discussed in Sections 119 and 120. Section 119 provides for a contingency in the event that one of the parties to the Exchange loses the property received by him as a consequence of a defect in the title of the other party is entitled for the following:
This covenant cannot be assumed to apply to the parties if they have explicitly agreed to the opposite. Under this Article, the person who has suffered damage as a result of the other party’s defective title has two options for recourse:
The second remedy, however, is only available in the following three situations:
In (1994), the Supreme Court ruled that entries made by a patwari in the official records do not create a title, and as a result, the opposing party was required to return the property (land) to that extent when there was a problem with the title of the land received by one party to exchange as a result of false entries made by the patwari and the party was deprived of some portion of land as per stipulation.
Social interaction, exchange, and transfer are crucial to any civilization. There are several circumstances, conditions, and motives in which movable or immovable property is transferred from one person to another. The idea of exchange and its inclusion in the Transfer of Property Act, 1882 have been crucial in the transfer of property between parties. The idea of exchange has persisted in civilization from the dawn of time, through the barter system, with some peculiar modifications to its fundamental elements. The legal framework of the Transfer of Property Act, 1882 has been thoroughly updated and versed with the modifications which are consistent with the current legal system, to minimise the scope of fraudulent acts by any of the parties in exchange. The rules already in place, though modified, still need to be strengthened, in order to reduce the number of conflicts involved in exchange of property. To increase the effectiveness of the Transfer of ownership, such flaws must be found and closed by putting into effect and revising laws that are in line with the times, it is our obligation and the duty of the government to protect the interests of the people. And to make this traditional method of transferring property more accessible to the general public.
Students of regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on and subscribe to our channel for more amazing legal content.
The post appeared first on .
Introduction
Exchange, social engagement, and transfer are mandated by the very nature of society. There are several circumstances and reasons why property, whether movable or immovable, is transferred from one person to another. The transfer might come in the form of a gift, an inheritance, or a full-priced purchase. While the applies when moveable property is transferred between two living people, the is applicable when an immovable property is transferred from one living individual to another. It is ideal to note that an exchange takes place when one item is transferred in exchange for another. The same has been governed under of the Act of 1882. This article serves as an explanation to the concept of exchange to its readers.
Essentials of exchange
It is ideal to note that the practice of exchange of goods dates back to time immemorial and there have been several instances in the past where the evidence of people being in the exercise of exchange of their goods by means of the barter system. Exchange has been covered under Chapter VI of the Transfer of Property Act, 1882, comprising 4 sections only. This age-old concept has been in significance with its presence in property legislation owing to involvement of the concept of ownership in the same. Chapter VI consists of Sections 118 to 121 of the Transfer of Property Act 1882. The essentials of exchange have been provided hereunder:
- There must be agreement between two distinct objects and two distinct people.
- It’s possible for the property to be both movable and immovable, both movable and both immovable, or one movable and one immovable.
- In this sort of transaction, each side is both the buyer and the seller.
- Things that have been transferred must belong to the parties involved.
- In a transaction when there is no transfer of ownership, there cannot be an exchange. For example, A family settlement or a divorce, for instance, won’t be seen as an exchange.
- The property is the consideration, not money, hence there is no price paid in the exchange.
- A recorded exchange of immovable property must be for at least Rs. 100.
Rights and obligations of parties in exchange
Equal rights are granted to each party to the trade. The individual transferring ownership to the other is regarded as being in the seller’s position and is in possession of all the rights that a seller has when selling property. The individual who gets the property is regarded as a buyer, and as such, enjoys all the rights that a buyer is entitled to.
When on the receiving end, a person has the same rights as a buyer, including the right to receive goods in good condition and the right to sue for damages if it is not. He has the right to possess all rights over that property after getting transferred.
Is money exchange possible
Money can’t be a thing in exchange, as the same is a stated regulation. However, Section 121 of the Transfer of Property Act, 1882 states that if money is transferred between parties, each party must vouch for the legitimacy of the money that has been handed over to the other party. If money is traded, it must be demonstrated to be real. Exchanges of money can happen at many different occasions. For instance, a visitor to the UK just has to have that nation’s money. Therefore, when he swaps his rupees for pounds, he is making a financial transaction.
Valuation of items of exchange
There is no mention of the worth of the items exchanged in trade anywhere in the definition of exchange. Any value associated with a thing may be transferred to the opposite party by the parties trading goods. The fact that the two goods do not have an equal value is immaterial. Thus, the transfer must be voluntary and mutually agreed upon by the people trading the goods.
Right of party, deprived of the object obtained in exchange
According to Section 119 of the Act of 1882, unless a contrary intention appears from the terms of the exchange, if a party to an exchange or any person claiming through or under such party is deprived of the thing or any part of the thing received by him in exchange due to any defect in the other party’s title, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for damages. or, at the discretion of the person so deprived, for the restoration of the object transferred, if it is still in the possession of the other party, his legal representative, or a transferee from him without consideration.
Important objectives of exchange
The three most crucial goals that must be met for a property transfer to be legitimate and legal in the eyes of the law are included in the idea of exchange as a method of transfer.The three objectives are :
● Mutual exchange
● The object of exchange must be lawful
● Impermissibility of oral exchange.
Mutual exchange
This mostly shows that the parties are in agreement and ready to transfer or swap goods for one another. For example, if A transfers his property to B, B must transfer his property in Exchange to A. It is crucial that both parties contribute to the transfer.
The object of exchange must be lawful
Any such transfer naturally falls under the purview of contract law, and any such transfer must adhere to the conditions of the contract. As a result, the parties’ intended for exchange of commodities or property must not involve anything illegal because doing so would violate the law and render the entire transaction invalid. For instance, it might be claimed that an exchange is illegal and void in the eyes of the law if the parties to the contract are interested in a deed of exchange to settle a criminal case between the parties.
Impermissibility of oral exchange
The Transfer of Property Act, 1882 requires registration, and this was made clear in 1929 when Section 49 of the was amended to reflect this. In light of the fact that an unregistered exchange is not admissible as proof, it became evident that a deed of exchange that is purely based on an oral agreement cannot be legitimate. If they are not registered and have no impact on any such immovable property, they are not admissible as evidence of any transaction affecting any immovable property included therein. Any exchange transaction involving moveable property valued at Rs. 100 or more has to be completed using a registered instrument.
Rights and liabilities of parties in exchange
In order to secure the interests of the parties and to prevent their exploitation, the transferor and transferee are also given certain rights when property is transferred in an Exchange. The rights and obligations of the parties are discussed in Sections 119 and 120. Section 119 provides for a contingency in the event that one of the parties to the Exchange loses the property received by him as a consequence of a defect in the title of the other party is entitled for the following:
- For the loss caused by such flaw; or
- For return of the thing transferred at the discretion of the person so deprived, if the thing is still in such another party’s possession (or his legal representative).
This covenant cannot be assumed to apply to the parties if they have explicitly agreed to the opposite. Under this Article, the person who has suffered damage as a result of the other party’s defective title has two options for recourse:
- He may seek compensation for his losses;
- He may withdraw the object he has transferred.
The second remedy, however, is only available in the following three situations:
- Where the property is still in the other party’s possession, or
- In the care of his legal agent; or
- Transferred to another person from him without payment;
In (1994), the Supreme Court ruled that entries made by a patwari in the official records do not create a title, and as a result, the opposing party was required to return the property (land) to that extent when there was a problem with the title of the land received by one party to exchange as a result of false entries made by the patwari and the party was deprived of some portion of land as per stipulation.
Conclusion
Social interaction, exchange, and transfer are crucial to any civilization. There are several circumstances, conditions, and motives in which movable or immovable property is transferred from one person to another. The idea of exchange and its inclusion in the Transfer of Property Act, 1882 have been crucial in the transfer of property between parties. The idea of exchange has persisted in civilization from the dawn of time, through the barter system, with some peculiar modifications to its fundamental elements. The legal framework of the Transfer of Property Act, 1882 has been thoroughly updated and versed with the modifications which are consistent with the current legal system, to minimise the scope of fraudulent acts by any of the parties in exchange. The rules already in place, though modified, still need to be strengthened, in order to reduce the number of conflicts involved in exchange of property. To increase the effectiveness of the Transfer of ownership, such flaws must be found and closed by putting into effect and revising laws that are in line with the times, it is our obligation and the duty of the government to protect the interests of the people. And to make this traditional method of transferring property more accessible to the general public.
References
- .
- .
- .
Students of regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on and subscribe to our channel for more amazing legal content.
The post appeared first on .