Property law

Unit 1

Meaning of property :

In its widest sense, Property includes all the legal rights

of a Person of whatever description The property of a

man is all that is his in law. In the narrower sense, the

property includes the proprietary rights of a person and

not his personal rights. Proprietary rights constitute his

estate or property and personal rights constitute his

Status or personal and condition. In another sense, the

term property includes only those rights which are both

proprietary and real.

According to Sir John Austin, the term property is

sometimes used to denote the greatest right of

enjoyment known as to law excluding servitudes.

Sometimes, life interests are described as property. Even

servitudes are described as property in the sense that

there is a legal title to them. Sometimes property means

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the whole of the assets of a man including both the

right in rem and right in personam.

Right in rem is enforceable against everyone.eg. ownership

Right in personam is enforceable against a specific person

or entity. It arises from obligations or contracts.

Kinds of property:

Property is essentially of two kinds Corporeal

Property and Incorporeal Property. Corporeal Property

can be further divided into Movable and Immovable

Property and real and personal property. Incorporeal

property is of two kinds-in re propria and rights in re

aliena or encumbrances.

1) Corporeal and Incorporeal Property:

(I) Corporeal Property -

Corporeal property is the right of ownership in material
things. Corporeal property is always visible and tangible.
Corporeal property can be perceived by senses. It can be
seen or touched. Examples -A House, Land, Car, Bike etc

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Corporeal property may be divided into two classes-

1. Movable Property (Chattels) and Immovable property.

(Land and buildings)

2. Real Property and Personal Property

3. (II) Incorporeal Property - Incorporeal property also called

as intellectual or conventional property. it includes all
those valuable interests which are protected by law.
Incorporeal property is intangible. It cannot be Perceived
by Senses. Examples - Patents, Copyrights, Trademarks
etc.

Incorporeal property is divided into two classes-

(a) Jura in re propria Over Material things (for example

patents, copyrights, trademarks etc)

(b) Jura in re Aliena encumbrances, whether over material

or immaterial things, for example, Lease, Mortgages and

Servitude etc.

2) Movable Property and Immovable Property -

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 All Corporeal Property is either movable or

immovable. In English law, these are termed as chattels

and land respectively.

(I) Movable Property -

Movable property is one, which can be transferred from

one place to another place with the human efforts.

(II) Immovable Property -

According to the General Clauses Act, 1897 "Immovable

property includes land, benefits arising out of land and

things attached to the earth or permanently fastened or

anything attached to the earth."

According to the Indian Regulation Act, "immovable

property includes land, building, hereditary allowance,

rights of way, lights, Ferries, Fisheries or any other

benefit to arise out of land and things attached to the

earth or permanently fastened to anything attached to

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the earth but not standing Timber, growing crops or

grass.

Section 3 Para 2 of the Transfer of Property Act 1882

defines immovable property as "immovable property does

not include standing Timber, growing crops or grass.

Movable property includes corporeal property which is not

immovable.

According to Salmond immovable property (i.e., land)

has the following elements-

A) a determinate portion of the surface of the earth.

B) The ground beneath the surface down to the

centre of the earth

C) The column of space above the surface ad infinitum

D) All objects which are on or under the surface in

its natural state for example-minerals natural
vegetation, or stones lying loose upon the surface.

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 E) An object placed by human agency on or under the

surface of the land with the intention of

permanent an annexation, for example, House walls,

Doors, Fences, etc.

3) Real and Personal Property -

In English law, the property has been divided into the

real and personal property. This division is identical to a

great extent with that of immovable or movable. The

division into real and personal is not based on any logical

principle but is a result of the course of legal development

in England.

Real property - The real property includes all rights over

land with such additions and exceptions, as the law has
deemed fit.

Personal property –

The law of personal property includes all other

proprietary rights whether they are in rem or in
personam.

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 Notice

When a person actually knows any fact, it is understood as

he has notice of that fact. Section 3 of Transfer of

Property Act enumerates three kinds of notices—

A) Actual or expressed notice: If a person actually knows

a particular fact it is considered he has actual notice. The

knowledge of fact must be received in the course of

negotiations of the property.

B) Constructive or implied notice: If it can be assumed if

a person ‘may know a particular fact’ due to the

circumstances, so it will be presumed that he knows the

fact. It is said that the person could have had actual notice

if he would have inquired reasonably. In this, the court also

presumes that the person shall have knowledge of a fact

and it cannot be proved that it was not obtained.

C) For example, X agrees to sell his property to Y. There

are tenants of that property that pay rent to Z. It is

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presumed that Y will have notice of the fact that the

tenants pay the rent to Z and hence he cannot claim that

he was devoid of knowledge of this fact.

Legal presumption of knowledge is considered when it is

prima facie understood that a fact can come to the notice

of a prudent person but because of wilful abstention from

an inquiry or search, a person does not have the knowledge

of that fact.

Gross negligence is a concept that is used in the constructive

notice. It is different from negligence which means mere

carelessness or omission to do an act. The doctrine of

constructive notice applies when there has been gross

negligence which means a high degree of carelessness or

neglect. Mere negligence is not punished as seen in the case

of Hudson v. Vincy , where the court defined gross

negligence as a degree of negligence so gross that a court

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may presume it to be some kind of fraud. Hence it can be

understood, that only gross negligence is punishable.

The Transfer of Property Act, 1882 (TPA)

It is a cornerstone of property law in India, governing the

rules related to the transfer of immovable property between

living persons. It standardizes property transfers, promotes

transparency, and ensures fairness in property transactions,

laying down essential definitions, rules, and interpretations.

The Transfer of Property Act, 1882, was enacted to provide

a structured legal framework governing the transfer of

property in India. Before this Act, property transfer laws

were ambiguous, often governed by customs and conflicting

practices. This Act unifies and formalizes these practices,

setting a legal precedent for property transactions.

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Object

The primary objectives of the TPA are:

1. To simplify property transfer laws: It establishes clear

rules governing the transfer of property.

2. To protect the rights of property owners and ensure

that any transfer is transparent and fair.

3. To balance the interests of transferors and transferees

by requiring compliance with standards of justice, equity,

and good conscience.

4. To prevent fraud by mandating formal procedures, such

as registration and notice, to make property transactions

visible to the public.

Scope

The TPA applies to the transfer of immovable property by

living persons (inter vivos) within India, excluding certain

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regions like Jammu and Kashmir and Tribal Scheduled Areas,

where local or customary laws might apply.Applicable Only

to Immovable Property: The TPA covers the sale, mortgage,

lease, exchange, and gift of immovable property.

Transfer Between Living Persons: It excludes transfers via

inheritance, wills, or operation of law.

Exclusions: Transfers covered by other laws (e.g., wills,

inheritance under the Succession Act) or related to religious

and charitable trusts do not fall under the TPA.

Section 3: Interpretation Clause

1. Immovable Property

Section 3 of the TPA refers to immovable property, though

the Act does not define it directly. However, based on the

General Clauses Act, 1897, immovable property includes:

Land and things attached to the land,

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- Buildings and other permanent fixtures on the land,

- Mineral deposits (mines),

Exceptions:

- Excludes things like standing timber, growing crops, and

grass, which are considered movable property once they are

cut or separated.

Purpose: This distinction is crucial for determining the

applicability of the TPA, as it governs the transfer of

immovable property only.

2. Instrument

An instrument under the TPA refers to any document that

creates, transfers, limits, or extinguishes a right. Examples

include sale deeds, lease agreements, mortgage deeds, and

gift deeds.

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- Importance: The term underscores the legal significance of

documentation in transferring property rights. Without an

instrument, the transfer lacks enforceability under the TPA.

3. Attested

Attestation involves the witnessing of a document by at

least two witnesses who sign the document in the presence

of the person executing it. It’s required for transfers like

mortgages, gifts, and wills.

- Requirements for Valid Attestation:

1. There must be at least two witnesses.

2. Each witness must sign the document in the presence

of the executant.

- Purpose: Attestation provides authenticity to the

document, making it legally valid and credible in a court of

law.

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 4. Registered

A registered document refers to one that is legally recorded

under the Registration Act, 1908. Registration is

mandatory for specific transfers to provide public notice and

ensure enforceability.

- Mandatory Registration: Sale deeds, gift deeds, and lease

deeds of more than one year must be registered.

- Purpose: Registration serves as a public notice of the

transaction, allowing transparency in property ownership and

preventing fraud.

5. Attached to the Earth

The TPA interprets things “attached to the earth” as:

- Roots of trees and plants growing naturally,

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 - Embedded objects like buildings or constructions

permanently fixed to the land,

- Objects fixed to anything attached to the earth (such

as a building on land).

Importance: This concept determines what qualifies as

immovable property under the TPA, as only items

permanently attached to the earth are considered

immovable property.

6. Actionable Claim

An actionable claim is a claim to any debt, other than a

secured debt, or to any beneficial interest in movable

property, which can be enforced in a civil court.

Examples include:

- Unsecured debts,

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 - Benefits that arise from a contract, which the claimant

can sue to recover.

Purpose: The TPA allows the transfer of actionable claims,

providing legal recourse to enforce intangible rights related

to property.

7. Notice

In the TPA, notice is a legal concept meaning awareness of

a fact related to a property transaction. Notice can be

actual (express) or constructive:

- Actual (Express) Notice: Direct knowledge of a fact.

- Constructive Notice: Implied knowledge, where a person is

expected to have known a fact due to reasonable diligence.

Purpose: Notice plays a crucial role in ensuring transparency.

For example, if a buyer has notice of an existing mortgage

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on a property, they cannot later claim they were unaware

of it.

Types of Notice

1. Express Notice: When a person has actual, explicit

knowledge of a fact. E.g., a buyer is told of an existing

lease on the property.

2. Constructive Notice: When a person could have known a

fact through reasonable inquiry. E.g., a visible tenant on

the property implies a third party’s interest, which the

buyer is expected to acknowledge.

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