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Report No. 70

110.11. Public opinion.-

Reforms in the law succeed if they substantially reflect the current notions. The rationalisation that was introduced into Hindu law by Vijnaneshwara in regard to property rights is well-known. It may safely be inferred that what was chiefly instrumental in giving Vijnaneshwara a pre-eminent position must have been not this or that adventitious circumstance, but the substantial merit of the system that he propounded, its suitability to the needs of the time and its general agreement with the convictions of the people. Great master as he was in the art of balancing and explaining texts-if the need be, even of distorting them-he constantly raised the discussion above the dull level of wordy warfare by appealing to higher reason and morality.

110.12. Objectives.-

If one bears all these aspects in mind, one would immediately perceive the objectives of the law of property and those of any reforms that may be introduced therein. The law defines, maintains and validates the varieties of property. The reform of the law should see that the content of the law keeps step with changes is society. A well designed law of property sets before itself certain objectives which it seeks to achieve in the regulation of the proprietary affairs of citizens. In regard to the aspect of transfer, the objective should be to ensure that transfer is not unduly hampered-thus avoiding one extreme-and yet is not so unconfined as to harm society-thus avoiding another extreme. This approach should find reflection not only in the substantive rules regulating transfer, but also in the rules as to the machinery of transfer.

110.13. Lines of Revision.-

Having regard to the fact that these are the principal considerations that should underlie suggestions for reform, we have, in the preceding Chapters, gone through the Act section by section, and have, wherever necessary, recommended amendments in the light of the experience gained in the working of the Act during the long period of its existence and also in the light of the changed social conditions as well as conflict of judicial decisions and recent thinking on the subject. While doing so, we have borne in mind the fact that the Act was reviled in 1929. These amendments do not detract from the quality of the content of the present Act as a legislative measure. But they take note of modifications inevitably rendered desirable by the passage of time-almost a century.

110.14. Substance and form.-

We are aware that there are limitations as to the extent to which one may go in recommending changes of substance in an Act of this nature. Radical amendments that make the substance or formalities of the law more stringent than at present, or cut down substantive rights without adequate justification, might indirectly harm the interests of society, particularly by displacing settled practices.

Amendments concerning the substance of the law have, therefore, been recommended by us only where they were found to be absolutely necessary in the interest of justice. An example of our recommendations falling in this category is the proposed amendment relating to forfeiture-section 114A-wherein our approach has been to advance the spirit underlying the doctrine of relief against forfeiture.

110.15. Other legislative developments.-

We would like to mention that review of the law on a subject may sometimes be rendered desirable by legislative developments in another but allied subject. Rent control legislation furnishes one such instance for the present purpose. It has introduced several new concepts, of which only one need to be referred to, namely, the concept of statutory tenancy. In order that a landlord may recover possession, he must prove not merely that the contractual tenancy has been terminated, but also that the situation is free from impediments that might have been imposed in regard to eviction by the relevant rent control legislation.

A point which is often overlooked is that a tenant of controlled premises, holding over after the termination of his tenancy, can still continue as statutory tenant and, therefore, normally he does not become a contractual tenant merely by paying rent. The reason is that the landlord has no right to possession without an order of the court, and the payment of rent and its acceptance are consistent with statutory tenancy and do not necessarily lead to an inference of a new contractual tenancy.

This position was settled long ago in England,1-2 and is recognised in India also. Since the Act was enacted at a time when such legislation was not in existence, its provisions-at the moment we have section 116 in mind-do not take notice of this special feature Now that rent control legislation is no longer temporary in its character, it seems to us desirable to deal with this situation in our recommendations.

1. Davies v. Bristow, (1920) 3 KB 428.

2. Morrison v. Jacob, (1945) 1 KB 577.

The Transfer of Property Act, 1882 Back

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