Broadly speaking: CONCEPT OF PROPERTY UNDER TRANSFER OF PROPERTY ACT, 1882

This article is written by Deekhsha Sharma, a 2nd year B.A.LLB. (Hons.) student at The Law School, University of Jammu.

INTRODUCTION

The word property has been derived from the Latin word ‘'properietate’ which means a thing that is owned.

Property is any physical or virtual entry that is owned by an individual or jointly by a group of individuals. An owner of the property has the right. Human life is not possible without property. It has economic, socio-political, sometimes religious and legal implications. It is the legal domain, which institutes the idea of ownership. The basic postulate of the idea is the exclusive control of an individual over something. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on which a person has control. A person can use it for consume, sell, rent, mortgage, transfer and exchange. Property is any physical or intangible entity that is owned by a person or jointly by a group of people.

Some of the principles related to property rights are as follows:

1. Control over the use of the property.
2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

DEFINITION OF PROPERTY

There are different definitions mentioned in the different acts according to their use and need but the most important act which exclusively talks about the property and rights related to property is the Transfer of the Property Act, 1882 which also has no definite definition of the term property. Some of the definitions mentioned in different acts are as follows:

Section 2(c) of the Benami Transactions Act, 1988 defined property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Section 2(11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.

There are different theories which have also been referred for understanding the concept of property which are as follows:

1. Historical Theory of Property
2. Labor Theory (Spencer)
3. Psychological Theory (Bentham)
4. Functional Theory (Jenks, Laski)
5. Philosophical Theory

Kinds of property

Property is divided into three kinds which are as follows:

*Movable and immovable Property

Movable property

The definition of movable property is given differently in many acts. Some of the definitions are as follows:

Section 3(6) of the general Clauses Act defines movable property as:

‘Movable property shall mean property of every description, except immovable property.’

Section 2(9) of the Registration Act, 1908 defines property as:

‘Movable property includes standing timber, growing crops, and grass, fruit upon and juice in trees, and property of every other description, except immovable property.’

Section 22 of IPC defines property as:

The word “movable property” is intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.

In Mohamed Ibrahim v. Northern Cricars Fibre Trading co, the court held that if machinery is installed on a cement platform and attached to iron pillars fixed in the ground, they were held as immovable property. To find out if a property of a given description is movable or immovable it is essential to find out its mode of annexation of the thing and purpose of such annexation.

Immovable property

The term “immovable property” occurs in various Central Acts. The most important act which deals with immovable property is the Transfer of Property Act.

Section 3 of the TPA act, ‘Immovable property’ does not include standing timber, growing crops or grass. Thus, the term is defined in the act by excluding such things.

As per Section 3(26) of the Registration Act, 1908 defines immovable property as:

Immovable property includes land, building, hereditary allowances, rights to ways, lights, ferries, fisheries, or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass.

The following have been held as immovable property:

A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land.

In Babu Lal v. Bhawani Das and Ors, the court held that section 3(25) of the General Clauses Act which defines immovable property can be applied to Transfer of Property Act, 1882.

In Sukry Kurdepa v. Goondakull, the court explained the meaning of the term immovability. It was held that “when a thing cannot change its place without injury to the quality of which it is, it is said to be immovable.”

*Tangible and Intangible property

Tangible Property

Tangible property refers to any type of property that can be generally be moved, touched or felt. These generally include terms such as furniture, clothing, jewelry, art, writings, or household goods.

Intangible Property

Intangible Property refers to the personal property that cannot actually be moved, touched or felt, but instead represents something of value such as negotiable instruments, securities, service, and intangible assets including chose in action.

Intellectual Property

Intellectual property is a term referring to a number of distinct types of creations of the mind for which property rights are recognized-and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency, investments etc. There are many other forms of intangible property that have been recognized under the law and granted protection against infringement.

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works discoveries and inventions and words phrases, symbols, and designs. Patents trademarks and copyrights, designs are the four main categories of intellectual property.

CONCLUSION

The concept of property has a very broad history. There are many philosophers who laid down different theories regarding the definition of the property. In today’s era, not only the things which can be seen or touched but also the things which cannot be touched or seen come in the purview of property.

FREQUENTLY ASKED QUESTIONS

Q1. Does Transfer of Property Act covers all type of transfers of property?

Ans. No, the act is limited to the transfer of property by the act of parties that is, through sale, exchange, gift, actionable claim, mortgage and lease. It does not cover the transfer of property by the operation of law. It deals with the transfer of immovable property inter vivos that is, between the living persons.

REFERENCES

1. ‘Image source’ https://www.tomorrowmakers.com/real-estate/5-popular-ways-transfer-your-immovable-property-listicle accessed on 1 July 2020
2. ‘Definition and Concept of Property” http://www.legalservicesindia.com/article/502/Definition-&-concept-of-property.html accessed on 1 July 2020
3. Mohamed Ibrahim v. Northern Cricars Fibre Trading co, AIR 1944 Mad 492
4. Babu Lal v. Bhawani Das and Ors, 15 Ind Cas 32
5. Sukry Kurdepa v. Goondakull, (1872) 6 Mad. H.C 71