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Report No. 70

The Transfer of Property Act, 1882

Chapter 1


1.1. Reasons for taking up.-

The Transfer of Property Act, 1882, with which this Report is concerned, has been taken up by the Law Commission on its own, having regard to the fact that the Act is a Central Act of general application and importance which has not been the subject-matter of revision far about half a century.

1.2. Importance.-

Although, as will be seen later, the Act does not purport to codify the whole law of property or of transfer of property, and although its application in regard to territories, persons and subjects has certain limitations, yet the fact that a law dealing with the transfer of property affects almost every citizen, renders it desirable that legislation on the subject should be reviewed from time to time.

It is not only men of property who are governed by the Act or by rules of law analogous to its provisions. The provisions of the Act, or analogous rules, are of importance for almost every citizen. Every individual may not, during his life-span, have occasion to buy or sell or mortgage land or other immovable property, but almost everyone who has a shelter on his head, is either a landlord or a tenant, or a person who may become a tenant by succession.

Again, while everyone may not have occasion to be a transferor of immovable property almost everyone is affected by the law relating to what property can or cannot be transferred. For example, the proposition that future Maintenance cannot be transferred is one which has been enacted1 by legislation or judicially recognised for the protection of those who are entitled to maintenance because, without the right to maintenance, life itself would be impossible.

1. Section 6(dd).

1.3. Social Aim.-

A prohibition against the transfer of his right, and many other similar prohibitions, have a wider social aim to achieve; and their importance is not confined to the rich. Though they speak the language of the law and, may have a flavour of the court room, their roots lie much deeper.

That, indeed, was the rationale of the legislation passed in several countries recognising a compulsory share out of the estates of descendents for those who were, in fact, economically dependent on them1-a movement2 in which New Zealand seems to have been a pioneer in the Cornmonwealth.3

1. Note Decendents' Family Maintenance Legislation, (1955) 69 Harvard Law Review 277.

2. N.Z. Family Protection Act, 1908 (Part II), re-enacting the Testators' Family Maintenance Act, 1908. See Allardice v. Allardice, 1911 AC 730.

3. Now the (New Zealand) Family Protection Act, 1955.

1.4. Case of gifts.-

Again, take a transaction that almost everyone enters into-a gift. How a gift can be made is laid down in the Act in a specific provision1 which applies not only to immovable property, but to movables as well. That a gift can be made by delivery in the case of tangible movable property-we are not referring to gifts of debts etc.-is an assumption on which every citizen acts; but if a legal basis for it is to be sought, it could be sought only in the Transfer of Property Act-at least, in regard to territories, persons or matters not excluded from the operation of the Act. It is well established that if a gift is, for any reason, imperfect, the court will not approve it by construing it as a trust-which shows the importance of the relevant provision in the Act.

1. Section 123.

1.5. In this connection, it will be of interest to refer to a Bombay case1 in which judgment was delivered by Mulla J. It was held that the gratuity payable to retired servants of a Railway Company being in the nature of a gift, it must be completed either by a registered document or by actual payment as required by section 123 of the Transfer of Property Act.

The delivery of the cheque by the Railway Company to the Mercantile Bank, though coupled with the request to send the amount to their London Office to be paid to the defendants, was not equivalent to delivery to the defendant and section 123 which requires delivery was not satisfied. A transfer intended to operate as a gift, but invalid as such, will not constitute the donor a trustee of the property for the intended donee. In other words, an imperfect gift will not be construed as a declaration of trust.

1. Natha Gulab & Co. v. W.C. Shaller, AIR 1924 Born 88.

1.6. Law of Property a pre-requisite of social order.-

Transfer of a right, of course, pre-supposes the existence of that right. Any society must, as a prerequisite 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.

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". Civilised 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.

1. Rousseau Social Contract.

1.7. Transferability not an essential feature.-

Of course, transferability or assignability cannot be considered to be a Sine qua Non or a necessary and indispensable incident of every kind of property. For example, it has been held1 that the word "property" used in sections 55(1) and 56 of the Bombay Public Trusts Act, 1950, is wide enough to include a statutory tenancy created under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, even though such a tenancy is not transferable.

1. S.G.P. Athaide v. Charity Commissioner, (1974) 77 Born LR 486 (Vaidya, J.).

Property-Range of

1.7A. The term "property" covers a very wide range of rights. Professor Tawney1 has pointed out that property is the most ambiguous category. It covers a multitude of rights which have nothing in common except that they are exercised by persons and enforced by the State. Apart from these formal characteristics, he says, those multitude of rights operate indefinitely in economic character, in social effect and in moral justification.

They may be conditional, like the grant of patent rights, or absolute like the ownership of ground rent. They may be permanent like a freehold land-to borrow an expression used in English law previously-or they may be terminable like copyright. They may be intimate and personal, as the ownership of clothes and books, or intangible, as shares in a gold mine.

1. R.H. Tawney The Acquisitive Society, (1921), Chapter 5.

1.8. Concepts of property changing from time to time.-

Legal concepts of what is property differ from time to time and place to place. What is property in one legal system may not be so according to another legal system, inasmuch as the law may fail to provide that the particular assertion deserves to be recognised or protected by law. This is partly due to the differences in the social order in which a legal system operates, and partly due to the state of juristic thinking in the particular country.

1.9. Species of property.-

Legal literature as well as actual instances would show that concepts of property and ownership have come up for consideration in situations that are sometimes unusual. For example, the question whether bees settling on another's land became his property has been the subject-matter of debate1, and actually arose in England.

In Kearry v. Pattinson, (1939) 1 All ER 65 (834), title in bees settling on another's land was directly in issue. Some of the plaintiff's bees swarmed in the garden of the defendant, a neighbour, who refused the plaintiff permission to enter. When the defendant subsequently gave permission, the bees had gone. The plaintiff appealed from an adverse judgment in action for conversion based on the defendant's refusal to allow him to enter. It was held that the title in the bees persisted only so long as the plaintiff was able to pursue them without trespassing, at which time they reverted to ferae naturae.

The basis of this decision is that bees are ferae naturae, (so that only a qualified title can be obtained in them). In contrast, it may be noted that the civil law2 provides that an owner's title is not lost3 because his bees settle on another's land.

1. Note Bees Settling on Another's Land, 52 Harvard Law Review 335.

2. Note, 52 Harvard Law Review 834.

3. France: Law of April 4, 1889; 1889 Bulletin des Lois, Pt. I, 554; Cf. Code Napoleon (1804), section 564; La Civ Code Ann (Dart, 1932), Art. 519.

1.10. Wild Animals.-

Incidentally, it may be stated that the mode of acquisition of ownership over wild animals in the Western legal system, alluded to above, is analogous to the ancient juristic principle of parigraha. That word literally means appropriation, and is explained in the Virmitrodaya1 as signifying the appropriation of previously unappropriated property, such as, straw, water, logs of wood etc. from a forest which is open to the public as not being under the ownership of any particular individual.

In the famous text of Manu2 dealing with the acquisition of fields, the case of wild animals is specifically mentioned.

1. P.N. Sen Hindu Jurisprudence, (1918), p. 55.

2. Manu, I, 44.

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