Property Law
Introduction
In general sense, property is any physical or virtual entity 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 some ‘thing’. Here the most important aspect of the concept of ownership and property is the word ‘thing’, on which a person has control for use. To consume, sell, rent, mortgage, transfer and exchange his property.
Property is any physical or intangible entity that is owned by a person or jointly by a group of people. Depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing these things.
There are some Traditional principles related to property rights which includes include:
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 three senses which Eminent Jurist Salmond thought while defining property. Those are:
Property includes all the rights of person legally.
• It includes only his proprietary rights.
• It also includes the right of ownership.
According to Austin, Property is the greatest right of enjoyment which is known to the law.
According to Jurist, Bentham, property includes ownership. He, in a way, has interpreted property in a narrow sense.
Property Act of 1882 has no definite definition of the term property although it talks about the property and rights related to property transfer. In some other acts it has been defined as per its need and use. Given below are those definitions:
In Benami Transactions (Prohibition) Act, 1988, Section 2(c) defines property as property of any kind, whether movable or immovable, tangible or intangible and includes any right or interest in such property. In The Sale of Good Act, 1930, Section 2(11) defines property as ‘Property means the general property in goods and not merely as special property.
What are the types of Property Law in India?
There are 3 major acts that deal with Property Laws in India
1. Transfer of Property Act, 1882:
The Transfer of Property Act is a law, in India that governs and establishes guidelines and procedures for the transfer of property more specifically, immovable property like land and real estate. It sets out the principles and procedures for transferring property through means such as sale, mortgage, lease, gift and exchange. Its primary purpose is to facilitate the transfer of property, from one individual to another.
2. Partition Act of 1893:
The Partition Act of 1893 is significant, in the realm of property law because it addresses the challenges that arise when properties owned jointly need to be divided among its co-owners. This legislation provides a framework that helps both courts and individuals navigate the complexities of partition cases ensuring a fair distribution of property rights.
3. Indian Succession Act, 1925:
The succession law sets out the guidelines, for how property’s distributed when someone dies either with or without a will. The Indian Succession Act of 1925 specifically deals with cases involving a written will (testamentary succession). However, if there is no written will, the laws regarding intestate succession or unwilled succession outlined in the Hindu Succession Act of 1956 would apply.
Types of Property under Transfer of Property Act, 1882
Property is broadly classified into the following:
Movable Property
Immovable Property
Immovable Property
• In India, the term Immovable Property is defined in the TPA, General Clauses Act, 1897 and The Registration Act, 1908.
• Section 3 of TPA states that immoveable property does not include standing timber, growing crops or grass.
• As per Section 3(26) of the General Clauses Act, 1897, the immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything to the earth.
• As per Section 2(6) of The Registration Act, 1908, immovable property includes land, buildings, 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.
By reading all the definitions provided in all the three acts, the term immovable property includes the following:
Land— The land includes earth’s surface, the column of space above the surface and the ground beneath the surface. Thus, all the objects which are on or under the surface in its nature state are included. And so, the objects placed by human agency with the intention of permanent annexation.
Benefits arising out of land —Every benefit arising out of immovable property and every interest in such property is also regarded as immovable property. The examples of benefits are rent from the house, shops and jagir, revenue from agriculture etc.
Things attached to earth —It means three things—
(a) Things rooted in the earth, for example, trees and shrubs.
(b) Things embedded in the earth, for example, walls and buildings, etc.
(c) Things fastened for the permanent beneficial enjoyment of anything so embedded, for example, doors, windows, ceiling fans, pegs etc.
Immovable property includes land, benefits arising out of land, and things attached to earth, except standing timber, growing crops and grass.
Examples of Immovable Property
• The equity of redemption
•The right of ferry
•Rights and interests of a grove-holder in a grove
•A right of way and in the of soil before separation from the earth.
•A right of easement
•A right to jagir income
•A right to use water of stream
•A factory building and the machineries annexed to land
Movable Property
• The term movable property has not been defined in TPA.
• As per Section 3(36) of the General Clauses Act, 1897, movable property shall mean property of every description, except immovable property;
Examples of Movable Property
•Right to worship
•The right of purchaser to have lands registered in his name.
•A decree for sale of immovable property.
Royalty
•Standing timber
•Growing crops
•Grass
Case Laws:
• In Ananda Behera v. States of Orissa (1955), it was held that the right to enter the land and carry-on fishing for the purpose of business is also regarded as benefits arising out of land.
• In Shanta Bai v. State of Bombay (1958), the Supreme Court held that a right to enter upon the land of another and carry a part of the produce is an instance of benefit arising out of land and therefore a grant in immovable property.
Other Types of Property
Intellectual Property:
WIPO defines intellectual property (IP) as any kind of creation, including names, symbols, and pictures in addition to writing, art, and innovations. Intellectual property (IP) is protected legally by trademarks, patents, and copyrights, which enable people to profit financially or receive recognition for their clever innovations or creative works.
Public and Private Property:
The government is the owner of public property and has full ownership rights over it. It is mostly used by the government for public uses, such as parks and public hospitals. On the other hand, private property is that which is owned entirely by an individual rather than by the government. His own belongings may include his automobile, garden, and home.
Conditions Restricting Transfer
Sections 10-18 of Transfer of Property Act, 1882, deals with various kinds of conditions that can or cannot be imposed while transferring a property.
The right of disposition of the transferee shall be determined by the extent to which the person who transfers his interest in the property decides. „Condition Restraining alienation‟ is said to exist where the transferee‟s power to transfer or dispose of the property held by him, is restricted.
Section 10 of the Act states that „absolute‟ restriction or limitation that restrains the buyer from alienating the property is void.
Case Law
1. Rosher v. Rosher
The Case: Mr. J.B. Rosher made a will in which he gifted all his real estate to his son, with a condition that if he ever wanted to sell it, he shall offer it to Rosher‟s wife at a certain amount (that was the one-fifth rate) and nobody else.
The Verdict: The Court held that by restricting the son from selling or by compelling him to sell at an undervalued price resulted to absolute restraint on alienation and therefore, void.
2. Renand v. Tourangeaon
The Case: A property was transferred with a condition that the transferee shall not sell it for 20 years.
The Verdict: The Court held that this condition amounted to absolute restriction, therefore, void.
Section 10 of the Act is based on the principle that law favors alienation to accumulation,encouraging unrestrained circulation and disposal of properties.
There are two exceptions to the rule-
1) In cases of lease agreements, as the restraint here is for the benefit of the lesser or
the estate leased out.
2) Secondly, where the property is transferred for the benefit of a woman (who is not a Hindu, Muslim or a Buddhist), with a condition that she doesn‟t have the power during her marriage to transfer or create any encumbrance in the sale of property transferred to her.
Absolute and Partial Restriction
Restrictions on alienation can be absolute or partial.
Absolute restrictions are void under Section 10 of the Act, but partial limitations can be permitted.
As in the case of Renand v. Tourangeaon6
if the restricting condition would have been of 2-3 years instead of 20, it would have been partial restriction, thus, making it valid.
Definition of Transfer of Property
Transfer of property is defined in Section 5 of the Act, and is stated to mean “an act by which a living person conveys property, in present or in future, to one or more other living persons, or, himself and one or more other living persons”.
A living person refers to an individual or a company or an association or body of individuals; imperative of the fact that its incorporated or not.
The word „transfer‟ has a very wide range and it covers either transfer of all rights or any one or more of the subordinate rights of the property.
Salient Points of Section 5 of Transfer of Property Act
● „Transfer‟ can happen only from living person/s to living person/s.
● It can take place in the present or future but the transferor shall be a living person.
● Living person includes company or associations, etc.
● Other laws that govern transfer are not affected by Transfer of property Act.
● The transfer of property can be implied or expressed.
Requisites of a Valid Transfer
1) Section 5 specifies that the transfer shall be between two or more living persons.
2) Section 6 states about the property shall be transferable or non-transferable.
3) Section 7 describes person/s who are competent to transfer.
4) Section 9 mentions that the transfer shall be done in the mode as prescribed by the
Act.
5) The transfer consideration or object shall be lawful.
The Persons who are competent to Transfer
Every person is competent if-
● He is of age of majority. Generally, 18 years but in cases where a guardian has been
appointed for a minor, it is 21 years.
In the case of Mallikarjuna v. Mareppa
the property was bought inthe name of buyer‟s minor son‟s name. after some years it was sold off while the son was still a minor.
The sale was declared void as the guardian had not taken the mandatory court permission needed under Section 8 of the Hindu Minority and Guardianship Act, 1956.
Neither can a minor be a transferor, such a contract shall be void.
● a person should be of sound mind; any contract by a person of unsound mind shall be void.
● Persons can be authorized by the title holder to dispose of the property under power of attorney.
Kinds of Transfer
The Act acknowledges five kinds of transfers-
1) Sale- is a complete transfer of property rights for money.
2) Mortgage- is a limited transfer of interest in the property.
3) Lease- gives rights to immovable property for a limited period.
4) Exchange- gives complete transfer of rights like a sale but the consideration is not money but
some other thing.
5) Gift- is given free, there is no consideration involved.
Conclusion
To conclude, the property laws in India plays a vital role in regulating and safeguarding the rights of individuals concerning to land and real estates.
With the rapid evolution of time, these laws have evolved to curb the diverse needs of a rapidly transforming society. As India is progressing way faster than it ever did before,a dynamic and responsive framework will be pivotal in fostering sustainable development, social justice, and harmony within the dimension of property ownership and transactions.
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