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Report No. 157

Section 52: The Transfer of Property Act, 1882 and Its Amendment

Chapter I

Introduction

1. Instinct of Man to have Property:

1.1. Property is in a sense accumulated labour, that is, the fruit of man's labour as labour otherwise perishable can only be stored in property. It is almost universally recognised fact that, every man has got a natural instinct to enjoy the fruits of his labour. According to some jurists, it is this instinct that brings the property into being. The law, in fact, recognises this instinct by conferring certain rights on individuals over the things which they have acquired.

1.2. Locke is the Pioneer of a school of thought which projects the right to property as man's supreme natural right and a limitation upon the State. Locke assumed that the natural state of man was a state of perfect freedom, in which men were in a position to determine their actions and dispose of their persons and possessions as they saw fit, and that it was, furthermore, a state of equality, in the sense that no man in this state was subjected to the will or authority of any other man. This state of nature was governed by a law of nature which, looking towards the peace and preservation of mankind, taught men that all persons being equal and independent, no one ought to harm another in his life, health, liberty, or possessions.1

As long as the state of nature existed, everybody had the power to execute the law of nature and punish offences against it with his own hand. This situation was fraught with disadvantages, inconveniences, and dangers. In the first place, the enjoyment of the natural rights of life, liberty, and property was uncertain and constantly exposed to the invasions of others. Second, in punishing infractions of the law of nature, each man was a judge in his own cause and liable to exceed the rule of reason in avenging transgressions.2

In order to end the confusion and disorder incident to the state of nature, men contemplated a body politic or a community. In contrast to Hobbes, who construed the social contract as a pact of complete subjection to an absolute sovereign, Locke asserted that men in establishing a political authority retained those natural rights of life, liberty, and property (often grouped by Locke under the single concept of property3) which were their own in pre-political stage. In Locke's contemplation the right to property was not created by the community or state, but existed already in the state of nature.

To him, State came into existence for its protection. His follower Pound expresses "In civilized society men must be able to assume that they control, for purposes beneficial to themselves, what they have discovered and appropriated to themselves, what they have created by their own labour, and what they have acquired under existing social order." To Aristotle property is the condition of good life. He regards it as the extension of human personality. He is of the view that property is essential for satisfaction of a natural instinct of possession as of an equally natural impulse of generosity.

1. Locke Of Civil Government (Everyman's Library Edn., 1924), 13k. II, Ch. II, sections 4 and 6. On Locke see Frederick Pollock Locke's Theory of the State in his Essays in the Law (London, 1922), pp. 80-102; Cains Legal Philosophy from Plato to Hegel, pp. 335-361; C.J. Schocher Life, Liberty and Property (Belmont, Cal, 1971); C.B. Macpherson The Political Theory of Possessive Individualism (Oxford, 1962), pp. 194-262.

2. Locke Of Civil Government, Bk. II, Ch. ix, section 123; Ch. ii, sections 12-13.

3. Id., Ch. vii, section 87; Ch. ix, sectoin 123.



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