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Report No. 157

1.11. Recognition of subsequent dispositions.-

Any society must, as a pre-requisite of social order, allocate rights of control over the land and goods existing in its territory. The pattern of allocation may vary, but there must be some allocation of its resources. Once proprietorship/ownership of the resources is recognised, there must also be a provision for recognising subsequent dispositions of the rights as recognised in their origin. This shows the significance of a law relating to the transfer of property. Transfer of a right, of course, pre-supposes the existence of that right.

The rights may be allocated according to the norms of the particular society, but there must be some form of allocation. The transition from the natural state to civil society, according to Rousseau1 "changes usurpation into a true right and enjoyment into proprietorship". Civilized society thus postulates the transformation of de facto acts into legal doctrines in the field of property. Once the rights are recognised by society-setting its seal of approval-their transfer must also be provided for. The provisions for transfer could also vary according to the norms of the particular society but the provisions must be there.2

K.K. Mathew observes3 that a system of property, in the sense of a set of norms allocating control over the physical resources at its disposal, is essential to any community. By referring to Hobbes and Rousseau, he infers that any society must allocate rights of control over the land and goods at its disposal as a pre-requisite of a social order.4

Property is an essential guarantee of human dignity, for, in order that a man may be able to develop himself in a human fashion, he needs a certain freedom and a certain security.5

1. Rousseau Social contract, referred in Law Commission of India's 70th Report on the Transfer of Property Act, 1882, p. 2.

2. Ibid.

3. Mr. Justice K.K. Mathew, former Judge of Supreme Court of India and former Chairman of LCI The Right to Equality and Property under the Indian Constitution, Lecture II.

4. Ibid., p. 49.

5. Ibid., p. 75.

Section 52 of the Transfer of Property Act, 1882 and its Amendment Back

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