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PROPERTY LAW PROJECT

ORAL TRANSFER (SECTION 9 OF
TRANSFER OF PROPERTY ACT)cc c

ÚY DEÚ ITA ONDAL

ÚA LLÚ
3RD YEAR
KIIT LAW SCHOOL
ÚHUÚNESWAR
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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 #    c $

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Ramaswami of Madras High court Observed ³the 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 c  c 
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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.

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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.
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

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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 Ô
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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

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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

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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.

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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.

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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.

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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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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.

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