Transfer of PropertyIntroduction

Gagan K

Relevance

• Philosophical aspects are not important for the exam. However, they are quite interesting.

• Introduction to TP Act gives clarity on the subject as a whole.

Contents

• Property – dictionary meaning• Property in legal theory• Property as defined in jurisprudence• Theories of property

– Hugo Grotius– Samuel von Pufendorf– John Locke– Marxian theory

• Transfer of Property Act, 1882• Broadly two types of property transfers

• Position of TP Act

Property in general

• Cambridge dictionary– an object or objects that belong to someone – a building or area of land, or both together – the legal right to own and use something

– Not used in the sense of “a quality in a substance or material” (do not confuse)

Property in legal theory

• Theory of property in Jurisprudence has vast area.

• What is a property, whether property can be intangible?

• How does a person get the right over a property?

• Various philosophers have given their own theories on property

Definition in jurisprudence

• an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership.

• In law, the term refers to the complex of jural relationships between and among persons with respect to things.

• The things may be – tangible, such as land or goods, or – intangible, such as stocks and bonds, a patent, or a

copyright.

Theories of property

• Speculations about nature of property as old as Plato and Aristotle.

1. Hugo Grotius:– the state did have the power to expropriate private

property. On the other hand, for such a taking to be lawful, it had to be for a public purpose and had to be accompanied by the payment of just compensation to the individual whose property was taken.

– (Relate the above theory with the Land Acquisition done by Governments in India for various purposes and payment of compensation to the land owners. Eg: Posco, Vedanta, Singur, Narmada)

Theories of property

2. Samuel von Pufendorf:– Property is founded in the physical power manifested

in seizing the object of property (occupation). – In order, however, to convert the fact of physical

power into a right, the sanction of the state is necessary.

– But the state cannot, make a property right where physical possession is not present.

– Thus, both occupation and state sanction are necessary conditions for the legitimacy of property.

Theories of property

3. John Locke:– What gives someone a right to a thing, is not simply

his seizing of the object but rather the fact that he has mixed his labour with the thing in making it his own.

– This right to a thing arising out of labour is a natural right. It does not require state sanction in order to be valid.

– (For example: there’s a piece of land owned by no one. I put a fence over it and make it suitable for cultivation of crops. I have now got right over that piece of land. Is this allowed today?)

Theories of property

4. Marxist theory of property:– The Communist Manifesto (1847) of Karl Marx and

Friedrich Engels holds that property is nothing but a device in the social warfare between the capitalist and proletarian classes, the means by which the capitalist expropriates the labour of the proletarian and keeps him in slavery.

– Reform, according to Marx and Engels, would not come until the revolution, when property would be abolished.

– (For example: consider the feudalism in India where a landlord owns 100s of acres of property. He exploits labourers and enjoys the proceeds of the land, while the labourers do not get minimum wages!)

Transfer of Property Act, 1882

Transfer of Property Act, 1882

• Came into force on 1st July, 1882• Two chief objects of the Act:

– Regulate transfer of property between living persons

– Complete the code of contract law for immovable property

• Act does not purport to be exhaustive. It doesn’t cover each and every aspect of transfer of property.

Broadly two types of property transfers

1. Tranfer of property by operation of law:– Inheritance – Insolvency – Forfeiture– Sale in execution of

decree– By Will

2. Voluntary transfer of property by act of parties (inter vivos):– Sale– Mortgage– Gift– Exchange– Charge

• TP Act applies only to this 2nd category

Position of TP Act

Contract Act among other things provides for

transfer of differenttypes of properties

Sale of MovableProperty is governed

By Sale of Goods Act.

Sale of immovable Property is governed

By TP Act

Also…

• Every general rule has an exception– Generally, TP Act applies to transfer of

property between voluntary transfers between living persons

– EXCEPTION: However, general provisions of TP Act can even be applies to transfer by operation of law, on principles of justice, equity and good conscience.

• TP Act, contains both substantive and procedural law.

The contents of this file have been compiled from various reliable sources. Due care has been taken to avoid

errors. The author of this work takes no responsibility for the consequences arising out of error. The reader is

advised to cross check with the text books and the Act in case of confusion. You are allowed to share this file with your friends without making changes to the contents of

this file. However, you are not allowed to exploit this work commercially.

- Gagan K.University of Mysore

gagan555@gmail.com