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Report No. 70

Chapter 110


110.1. Introduction.-

By way of concluding our discussion of the Act, we would like to say a few words in this Chapter as to certain-matters of general interest.

In making our recommendations in this Report, we have followed the same practice as has been adopted in our other Reports. It has been our concern to reintroduce certainty where there is uncertainty;1 to complete what is incomplete;2 to refine what needs refinement;3 to strive for neatness where there is obscurity;4 and, in general, to re-shape the law so as to enable it to define and regulate in a better manner, the legal relations of citizens in their proprietary affairs.5

1. Section 5.

2. Section 10.

3. Section 18.

4. Section 114A.

5. Section 106.

110.2. Universal appeal.-

The law of property is often regarded as relating to matters purely of interest to lawyers, and in that sense, it is described as a technical branch of the law. But, as we have stated in the introductory Chapter, almost every one is, at some time or other, likely to be a holder of property. Also, it is a mistake to suppose that the Act is concerned only with Immovable property. Not an inconsiderable portion of the Act is concerned with movable property.

Not only do certain general principles contained in Chapter 2 apply to all property, but also certain specific chapters of the Act are very much concerned with movables. For example, the proposition that one can make a gift of the small things of life to one's nearest and dearest is an elementary postulate; but its legal validity is entirely derived from the chapter on gifts, particularly sections 122 and 123.

Similarly, the rule that one who gives legal tender money guarantees its genuineness, is expressly enacted in the Act, in section 121.

110.3. Human aspect.-

Apart from this legal aspect, we may also point out that several branches of the law of property deal with questions affecting human values. The human element becomes relevant, for example, in a formulation of the rules of the law of perpetuity, gifts to unborn persons and the like. It is only because many proprietary transactions are ordinarily entered into in a businesslike manner and in calm and cool surroundings after reflection, that the human element appears as secondary.

Unlike the criminal law, there is hardly any drama in the factual situations on which the law of property operates. Also, it is true that the definite variety of human relationships that constitute the backdrop against which cases in the law of torts resent themselves is not to be met with in the law of property. Even then, it should not be overlooked that rules of the law of property-like the rules in any other branch of law-are intended to regulate human relationships.

It may also be mentioned that the level of culture of a civilisation may impose restrictions on the transfer of property. Concepts of property change with social concepts. Rules belonging to the domain of the law of property may appear to be overladen with the weight of law, because they speak the language of rights and liabilities; but, in reality, they derive their roots from current social notions.

Apart from this human aspect, there is the intellectual appeal of the law of property, in so far as it touches on the fields of economics and sociology-for example, where it seeks to define what property cannot be transferred.

Thus, the legal, moral and social importance of the law of property is much deeper than may appear at the first blush.

110.4. Political aspect.-

We need not refer to the political aspect in Arndt v. Grigg, (1890) 134 US 316 (320-21), a case dealing with the Nebraska "quiet-title" statute, the Supreme Court of the United States observed:

"The sovereignty of the State (gives it) control over property within its limits and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding the transfer, liability to obligations, private or public, and modes of establishing title thereto."

110.4A Antiquity.-

Codification of the law of property may not have a long history; but it may be pertinent to point out that some of the rules of law relating to property are of great antiquity. Noyes has observed:1

"Property is not an idea nor an instinct. It is an elaborate social institution which present a continuous sequence of development from the first record of the customs and organisation of early society. If we were able to accept the extreme legalistic view that it is created by law and exists only in the contemplation of the law, an analysis of the institution for economic purposes would be a relatively simple matter.

For, then we would only need to adopt such definitions as are provided ready to hand in legal doctrine and practice. However, the most cursory examination of the history of legal systems must convince us that such a view is untenable. The law finds the institution of property in existence, as well at the earliest as at all later stages of growth, and, far from creating its varieties, is occupied only "in defining, maintaining and validating them."

1. Noyes the Institution of Property.

110.5. Influence of social organisation.-

Property thrives in a particular environment. That property rights are moulded within, and influenced by, the environment may be illustrated from early English law and by other examples. In Rome, for example, the peculiar cast given to the institution of property was due to its origin within that nearly self-sufficient social unit called the "familia". On the other hand, the principal contribution of pure English character arose from the dependent relation between families, called the "feod". The two social organisations were wholly different. The Roman consisted of independent groups, on a somewhat equal footing, each represented by the person of the head of the familia.

110.6. The early English society consisted of a hierarchy. In Rome, on the other hand, the social organisation was different, in some respects. The result was that in Rome the property relation, so far as it came within the purview of the law (i.e. was presented as disputes over property), was concerned primarily with a collateral relationship between independent and equal units, while, in England, it was concerned very largely with a lineal relationship between dependent and ranked units.1

A similar phenomenon was witnessed in India in regard to the joint family. Property rights in the context of the joint family have been changing from time to time, and we have variations even from region to region.

1. Noyes The Institution of Property, p. 221.

110.6A. Changing concepts.-

If social notions do not remain static, no less can the law. Particularly in modern times, the law of property has undergone a great change. Formerly, the principal object of the law seemed to be to regulate "real" property in all its various artificial modifications, while little or no attention was bestowed upon the rules which govern personal property and rights. The mercantile law has since arisen, like a bright pyramid, and is now far more important in practice than the rules which refer to real estate. The law of immovable property, too, has changed. New and unknown arrangements of sharing proprietary rights have come into being.

It follows that what is "property" and what is "transferable" property, are changing concepts. The reason for this will be clear when one examines the nature of a proprietary right. A "thing" is any "piece of property"-an interest.1 Property law is not concerned with, and men are for the most part not dealing in, material objects. What is dealt with both in law and in economic life is one and the same.

It is such "things" or interests which are bought and sold, treasured, protected, fought over.2 It is these "things" which are measured against themselves in exchange and which give rise to the notion of economic value. The law hardly needs a term for material objects-the objects of rights. What it needs are terms for these immaterial "things", these bundles of rights, these interests.

1. Noyes The Institution of Property, p. 456.

2. Noyes The Institution of Property, p. 456.

110.7. Different aspects.-

That considerations not purely legal have an impact on proprietary rights could be illustrated in a different manner. Property in a thing may be recognised in one aspect, and not in another. For example, it has been held1 in an English case2 which concerned "The Memoirs of Harriette Wilson" (who was a notorious courtesan), that there can be no copyright in an immoral work.

In Walcot v. Walker, (1802) 7 Ves 1, (also a case of copyright), Lord Eldon observed that the policy of the law did not permit a libellous publication to be considered

1. Note in Solicitor's Journal, reproduced in 31 Born LR (Journal 26).

2. Stockdale v. Orwhyn, (1826) 2 C&P 163.

"property". To the same effect is Glyn v. Weston Feature Film Co, (1916) 1 Ch 261, which involved consideration of a book called "Three weeks", then notorious.

110.8. Nevertheless, this does not seem that there can be no offence of theft in respect of such books or objects. The Court can order restitution of the book, or even sentence a thief who takes it without leave. In the United States, it was held before the war that1 wine in "dry" states, such as Iowa, Massachusetts and Michigan, could, although, forbidden to the public, be the subject of larceny, and there is a similar decision as to gaming implements in West Virginia (though in Ohio there is one to the contrary effect). It is well known2 that indecent books or pictures, the regrettable works of great authors or artists, may be the subject matter of theft.

The possession of an indecent book or picture is not an offence, unless the book is kept for sale. The conclusion may, therefore, be reached that there is property in the physical book or picture within the meaning of the law relating to theft, though there is no copyright to be pirated.

The case of Gorden v. Chief Commissioner, (1910) 2 KB 1080, in regard to street batting gains seized by the police may perhaps be quoted in support of the view that the court will assist an owner to recover property which a moral and law abiding person would not possess.

1. Note in Solicitor's Journal, reproduced in 31 Boni LR (Journal 26).

2. Note in Solicitor's Journal, reproduced in 31 Born LR (Journal 26).

110.9. Evolution according to social needs.-

It is elementary that the economic and social needs of the day give rise to various modes of dealing with property, and the law, sooner or later, evolves rules for dealing with them. For example, transactions by way of bailment assumed a variety of forms in ancient India. Hindu jurisprudence recognised several species of bailment or deposits of movable property, of which five main divisions must be mentioned here. They are 'Nikshepa', 'Upanidhi', 'Nyasa', 'Anwadhi' and 'Yachita'.

110.10. Varieties of bailment in Hindu law.-

Nikshepa is a sample bailment of a man's goods to his friend or relation in whom he has confidence. If, however, a person encloses some movable belonging to him in a box or casket, and delivers the box or casket to another person, without mentioning its kind, form or quantity, it is called Upanidhi. In other words, a Nikshepa was a specified or open deposit; an Upanidhi was an unspecified one. But if a person who has fear of the king, or of robbers and the like, takes his movable property and places it in the house of another, after giving due notice to that other person, it was called Nyasa.

One may presume that in this case there was an obligation to take reasonable care. In the case of Anwadhi, the person bails his property to another with directions to deliver it to a person specified by the bailor. The Mitakshara describes Anwadhi as a transaction in which the thing is bailed with the directions "deliver this to another other than myself and different from the owner". A Yachita, on the contrary, is a loan for use.1

It is significant that in all the above classes of bailments, a fiduciary relation is created as between the holder and the bailee, although it is only with regard to the movable property. The duties of the bailee in regard to the thing are more or less akin to those of a trustee so long as the thing bailed is in his custody or possession. The bailee is bound to restore the thing bailed in the same condition and manner in which it was bailed and to preserve the thing bailed in the same way as "a son is cherished". The simile sums up in a word the aggregate duties of a bailee. He shall not without the consent of the owner, reap any profit out of the thing bailed, and shall not, without the consent of the owner, use a simple deposit.2

1. Colebrooke's Digest, Vol. I, pp. 270-274.

2. Colebrooke's Digest, Vols. I, II. Section 1, 2, pp. 270-300.

The Transfer of Property Act, 1882 Back

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