Transfer of Property

Introduction
Gagan K

Relevance
Philosophical aspects are not important for
the exam. However, they are quite
interesting.
Introduction to TP Act gives clarity on the
subject as a whole.

Contents

Property dictionary meaning

Property in legal theory
Property as defined in jurisprudence
Theories of property

Hugo Grotius
Samuel von Pufendorf
John Locke
Marxian theory

Transfer of Property Act, 1882

Broadly two types of property transfers

Position of TP Act

Property in general
Cambridge dictionary
an object or objects that belong to someone
a building or area of land, or both together
the legal right to own and use something
Not used in the sense of a quality in a
substance or material (do not confuse)

Property in legal theory

Theory of property in Jurisprudence has
vast area.
What is a property, whether property can
be intangible?
How does a person get the right over a
property?
Various philosophers have given their own
theories on property

Definition in jurisprudence
an object of legal rights, which embraces
possessions or wealth collectively, frequently
with strong connotations of individual ownership.
In law, the term refers to the complex of jural
relationships between and among persons with
respect to things.
The things may be
tangible, such as land or goods, or
intangible, such as stocks and bonds, a patent, or a
copyright.

Theories of property
Speculations about nature of property as old as
Plato and Aristotle.
1. Hugo Grotius:
the state did have the power to expropriate private
property. On the other hand, for such a taking to be
lawful, it had to be for a public purpose and had to be
accompanied by the payment of just compensation to
the individual whose property was taken.
(Relate the above theory with the Land Acquisition
done by Governments in India for various purposes
and payment of compensation to the land owners. Eg:
Posco, Vedanta, Singur, Narmada)

Theories of property
2. Samuel von Pufendorf:
Property is founded in the physical power manifested
in seizing the object of property (occupation).
In order, however, to convert the fact of physical
power into a right, the sanction of the state is
necessary.
But the state cannot, make a property right where
physical possession is not present.
Thus, both occupation and state sanction are
necessary conditions for the legitimacy of property.

Theories of property
3. John Locke:
What gives someone a right to a thing, is not simply
his seizing of the object but rather the fact that he has
mixed his labour with the thing in making it his own.
This right to a thing arising out of labour is a natural
right. It does not require state sanction in order to be
valid.
(For example: theres a piece of land owned by no
one. I put a fence over it and make it suitable for
cultivation of crops. I have now got right over that
piece of land. Is this allowed today?)

Theories of property
4. Marxist theory of property:
The Communist Manifesto (1847) of Karl Marx and
Friedrich Engels holds that property is nothing but a
device in the social warfare between the capitalist and
proletarian classes, the means by which the capitalist
expropriates the labour of the proletarian and keeps
him in slavery.
Reform, according to Marx and Engels, would not
come until the revolution, when property would be
abolished.
(For example: consider the feudalism in India where a
landlord owns 100s of acres of property. He exploits
labourers and enjoys the proceeds of the land, while
the labourers do not get minimum wages!)

Transfer of Property Act, 1882

Transfer of Property Act, 1882

Came into force on 1st July, 1882
Two chief objects of the Act:
Regulate transfer of property between living
persons
Complete the code of contract law for
immovable property

Act does not purport to be exhaustive. It

doesnt cover each and every aspect of
transfer of property.

Broadly two types of property transfers

1. Tranfer of property by
operation of law:

Inheritance
Insolvency
Forfeiture
Sale in execution of
decree
By Will

2. Voluntary transfer of
property by act of
parties (inter vivos):

Sale
Mortgage
Gift
Exchange
Charge

TP Act applies only to

this 2nd category

Position of TP Act
Contract Act among
other things provides for
transfer of different
types of properties

Sale of Movable
Property is governed
By Sale of Goods Act.

Sale of immovable
Property is governed
By TP Act

Also
Every general rule has an exception
Generally, TP Act applies to transfer of
property between voluntary transfers between
living persons
EXCEPTION: However, general provisions of
TP Act can even be applies to transfer by
operation of law, on principles of justice,
equity and good conscience.

TP Act, contains both substantive and

procedural law.

The contents of this file have been compiled from various

reliable sources. Due care has been taken to avoid
errors. The author of this work takes no responsibility for
the consequences arising out of error. The reader is
advised to cross check with the text books and the Act in
case of confusion. You are allowed to share this file with
your friends without making changes to the contents of
this file. However, you are not allowed to exploit this
work commercially.
- Gagan K.
University of Mysore
gagan555@gmail.com