Section 42 of the Transfer of Property Act, 1882: Transfer by Person Having Authority to Revoke Former Transfer
Section 42 explains when a later transfer of immovable property for consideration can itself operate as a revocation of an earlier transfer, where the transferor had expressly reserved a power of revocation.
Full text of Section 42
42. Where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.
Illustration
A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B's lease subject to the opinion of the surveyor as to B's use of the house having been detrimental to its value.
Meaning of Section 42
A person who has already transferred immovable property generally cannot treat it as still freely disposable. Section 42 deals with a specific exception: the first transfer reserved a power of revocation, and the transferor later transfers the property to another person for consideration. The subsequent transfer can operate as the exercise of the reserved power, but only within the power's actual scope and subject to its stipulated conditions.
Essential requirements
- Earlier transfer: The transferor must previously have transferred the same immovable property.
- Reserved power: The earlier transaction must reserve to that transferor a power to revoke the former transfer.
- Later transfer for consideration: The same transferor must subsequently transfer the property to another transferee in return for consideration.
- Conditions respected: Any condition attached to the revocation power must be satisfied.
- Limited operation: The earlier transfer is revoked only to the extent of the power reserved; the later transfer cannot enlarge that power.
Explanation of the statutory illustration
A grants B a lease of a house but reserves a power to revoke if a named surveyor considers B's use detrimental to its value. A later leases the house to C, believing B has misused it. The new lease may operate as a revocation of B's lease, but it remains subject to the surveyor's required opinion. A's personal suspicion cannot replace the condition in the earlier lease.
Meaning of key expressions
Power to revoke
A power reserved by the transferor under the original instrument to bring the earlier transfer to an end in the specified circumstances. Its scope and conditions must be determined from that instrument and applicable law.
Consideration
Something of value given in return for the subsequent transfer. Section 42 specifically requires a later transfer for consideration; it does not establish the same automatic consequence for every gratuitous later disposition.
Condition attached to the exercise of the power
A prerequisite specified for exercising revocation, such as the surveyor's assessment in the statutory illustration. Section 42 preserves rather than dispenses with such conditions.
Distinction from related provisions
Section 41 protects certain good-faith purchasers from ostensible owners where the statutory safeguards are satisfied. Section 42 instead concerns a transferor who reserved a right to revoke an earlier transfer. Section 43 concerns an unauthorised transferor who later acquires an interest; its requirements differ from those of Section 42.
Practical application
Before relying on Section 42, inspect the first deed or lease for the actual revocation clause, confirm that the later transfer was for consideration, and establish compliance with every condition. Other applicable statutory rules governing leases, registration and enforceability may also need to be considered. A later deed alone is not proof that a conditional revocation power was validly exercised.
Frequently asked questions
What is Section 42 of the Transfer of Property Act?
It addresses a later transfer for consideration by a transferor who reserved a power to revoke an earlier transfer of immovable property.
Does a second transfer automatically cancel the first transfer?
Only to the extent of the reserved revocation power and subject to any conditions attached to exercising that power.
Is consideration necessary under Section 42?
Yes. The section expressly requires that the subsequent transfer be for consideration.
What if a surveyor must confirm a condition?
The statutory illustration makes revocation conditional on the specified surveyor forming the required opinion; the transferor's belief alone does not satisfy it.
Official legal source
Consult the Transfer of Property Act, 1882 on India Code for the official statutory text and relevant amendments.