Report No. 70
3.11. Differentia.-
At this stage it may be useful to mention some of the important concepts which form the basis of distinction in the scheme of the Act. These differentia could be usefully emphasised, since on them depends the answer to the question whether a particular provision applies to a particular transfer or not. First, we may take up the kind of transfer. In general-the only exception seems to be the case of a charge-the Act is not concerned with the transfer by operation of law or with a transfer operative on death. It is confined to transfer by acts of parties between living persons, as distinct from transfer by operation of law and transfers operative on death.
3.12. Transfers with or without consideration.-
Assuming that the transfer is by an act of parties between living persons, then, for the purposes of certain sections, it still remains important to consider whether the transfer is without consideration or whether it is with consideration. This is particularly so in the case of the transfers mentioned in the sections contained in the latter-half of Chapter 2, dealing with certain general principles applicable to transfers of immovable property. Either the rights of the transferee or the rights of third persons or the rights of a subsequent transferee are, in many cases, made to depend on the presence or absence of consideration.
In this category, for example,1 fall section 35 (election), section 38 (Transfer by persons authorised only under certain circumstances to transfer), section 39 (Transfer where a third person is entitled to maintenance), section 40 (Burden of obligation imposing restriction on use of land or of obligation annexed to ownership but not amounting to interest or easement), section 41 (Transfer by ostensible owner),
section 42 (Transfer by person having authority to revoke former transfer), section 43 (Transfer by unauthorised person who subsequently acquires interest in property transferred), section 45 (Joint transfer for consideration), section 46 (Transfer for consideration by persons having distinct interest), section 49 (Transferee's right under policy), section 53 (Fraudulent transfer) and section 53A (Part-performance). And, of course, the absence of consideration is one of the essential ingredients of gift as defined in section 122.
1. The list is not exhaustive.
3.13. Meaning of expressions "consideration" and "price".-
Since the expression "consideration" is not defined in the Act, though used in several sections, one may presume that it will have the same meaning as in the Indian Contract Act, 1872. Section 4 of the Transfer of Property Act, 1882 in fact, provides that the chapters and sections of the Act "which relate to contracts" shall be taken as part of the Indian Contract Act, 1872. If not on a literal interpretation of this section, at least by analogy, one can refer to the definition in the Indian Contract Act.
The expression "price" used in the definition of sale in section 54-a transfer of ownership in exchange for a price paid or promised or part-paid and part promised- is also not defined in the Act, and here again we may presume that the meaning given to that expression in the Sale of Goods Act can be drawn upon. It may incidentally be noted that section 4 of the Transfer of Property Act, under which the Indian Contract Act, 1872 is attracted, was enacted at a time when the topic of sale of goods also formed a part of the Indian Contract Act.
3.14. Tangible and intangible-Immovable and movable.-
Apart from the distinction1 based on consideration, in the scheme of the Act, the distinction between tangible and other property is important with reference to sale under section 54. The distinction between immovable and movable property is important for the purposes of several sections of the Act, including the latter half of Chapter 2, which is confined to immovable property, and including the sections dealing with specific modes of transfer such as sale, lease, gift and exchange, where the fact that property is movable property either renders the relevant provision inapplicable, or leads to the application of a rule different from that applicable to immovable property.
1. Para. 3.13.
3.15. Hindu and Mohammedan rule.-
The expression "tangible" reminds one of certain texts of Hindu law. A mortgage of future property is, perhaps, strictly speaking, contrary to Hindu law1, as being a mortgage of that which was not "visible" or in existence2, and it was so thrown out by Westropp, J., in a Bombay case.2
According to Colebrooke, in 2 Strange's Hindu Law, 467, 469, a mortgage (bandhaka) is defined to be "or real, substantial, visible (drisha) property, under which the mortgagor remains in possession till the stipulated time arives3".
It will be noted that the Act does not maintain the distinction between real and personal property on the technical lines of English law. As to the distinction between tangible and intangible property, it may be that this distinction was suggested by the Roman law classification between Res Corporales and Res incorporales. In Roman law, the former category comprises lands, clothes, money and all things which can be touched. The latter category included servitudes, contractual rights and things which cannot be touched and exist only as legal conceptions4.
1. Drishtadi Drishtabandhak, Wilson's Glossary, 148; cited in Kedari v. Atmaram, 3 BHCR (AC) 11 (17).
2. Kedari v. Atmaram, 9 BHCR (AC) 11 (17).
3. Venkatav v. Parvati, 1 MHCR 460 (464 note).
4. Vaines Personal Property, p. 14.
3.16. Immovable and movable property.-
As to the distinction between immovable property and movable property, it is to be noted that in England this distinction has not much importance so far as the law of property is concerned. The distinction was, however of considerable significance, in Roman law. In that legal system, things were classified as immovables and movables (res immobiles and mobiles). A similar division exists in modem times in most continental systems of law1, though there is no uniformity.
Immovables in Roman law comprise land and things attached to the land, while movables comprise all other forms of property which do not have essentially a permanent location. Immovable property could not, in Roman Law, be stolen-a distinction which had great practical importance. In Indian law also, under section 378 of the Indian Penal Code, theft can be committed only in respect of movable property. Again, in Roman law, special rules apply as to the period of acquisition of title by long possession in the case of immovable property. The distinction has considerable importance in the field of conflict of laws, even as administered in England. We shall revert to this aspect later.
1. Clarence Smith Classification by site, (1963) 26 Modren Law Review 16.
