Lecture-

2
Transfer of Property
(Property)

Salient Features
 Not exhaustive
 Transfer by operation of law excluded
 Transfer mainly of immovable properties
 Legislative competence
 Muslim law
 Savings of certain incidents and rights
 Territorial limitations
 Special laws to oust the jurisdiction of the TPA
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Transfer of Property
• S. 2: Saving of certain (Property)
enactments, incidents, rights,
liabilities, etc: In the territories to which this Act extends for
the time being, the enactments specified in the schedule hereto
annexed shall be repealed to the extent therein mentioned. But
nothing herein contained shall be deemed to affect -
– (a) the provisions of any enactment not hereby expressly repealed;
– (b) any terms or incidents of any contract or constitution of property which
are consistent with the provisions of this Act, and are allowed by the law for
the time being in force;
– (c) any right or liability arising out of a legal relation constituted before this
Act comes into force, or any relief in respect of any such right or liability; or
– (d) save as provided by section 57 and Chapter IV of this Act, any transfer by
operation of law or by, or in execution of, a decree or order of a Court of
competent jurisdiction;
and nothing in the second Chapter of this Act shall be deemed to affect any rule
of Muhammadan law.

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Transfer of Property
(Property)

 Rights and duties

 Obligations
 Liability
 Title
 Property

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Transfer of Property
 Property: Has a variety(Property)
of meanings. It is closely related to
ownership or title. In some contexts, it is used to mean the thing
over which ownership is exercised.
 Widest sense: includes all legal rights possessed by a person.
A man’s property is all that is his in the eye of law.
 Narrower sense: Does not include all that a person has, but
only his proprietary rights, as opposed to his personal rights.
Proprietary rights constitute his estate and property. A man’s land,
chattels, shares, debts due to him are considered his property, but
personal rights concerned with his status or personal conditions
such as his life, liberty or reputation, etc are not his property.
 Narrowest sense: includes only corporeal property, i.e. the
right of ownership in a material object, or that material object itself.

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Transfer of Property
(Property)
Property means the highest right a man can have to
anything being that right which one has to land or
tenements, goods or chattels which does not depend
on another’s courtesy; it includes ownership, estates
and interests in corporeal things, and also rights such
as trade-marks, copyrights, patents and even rights
in personam capable of transfer or transmission,
such as debts; and signifies a beneficial right to or a
thing considered as having a money value, especially
with reference to transfer or succession, and of their
capacity of being injured.

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Transfer of Property
 Property (Property)
– Jura in re propria (Rights in Propria) (These are rights of
ownership in one’s own property. These can be in material things or
immaterial things)
o Material things (corporeal property)
Land, chattels
o Immaterial things (incorporeal property)
Patents, copyrights, trademarks, designs, etc.
– Jura in re aliena (Rights in Aliena) (Encumbrances)
(These are rights in rem over a res (thing) owned by another; these rights run
with the things encumbered; these are incorporeal property)
o Lease
o Servitudes
o Securities
o Trust
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Transfer of Property
(Property)

Modes of acquisition of property

 Possession
 Prescription
 Agreement
 Inheritance

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Transfer of Property
(Property)

 Movable and immovable property

o Relevance of study

 Movable propoerty: Goods [S. 2 (7) of the SGA]: ‘Goods’

means every kind of movable property other than
actionable claims and money; and includes stock and
shares, growing crops, grass, and things attached to or
forming part of the land which are agreed to be severed
before sale or under the contract of sale.

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Transfer of Property
• IPC 1860, S. 22: The words (Property)
‘moveable property’ are 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.
• TPA 1882, S. 3 (1) states: ‘immovable property’ does not include standing
timber, growing crops or grass.
• GCA 1897, S. 2 (36): ‘movable property’ shall mean property of every
description, except immovable property.
• GCA 1897, S. 2 (26): ‘immovable property’ shall include land, benefits to arise
out of land, and things attached to the earth, or permanently fastened to anything
attached to the earth.
• Indian Registration Act 1908: S. 2 (9) ‘movable property’ includes standing
timber, growing crops and grass, fruit upon and juice in trees, and property of
every other description, except immovable property.
• TPA 1882, S. 3 (5) states ‘attached to the earth’ means-
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so embedded for the permanent beneficial enjoyment of that
to which it is attached;
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Transfer of Property
 Immovable Property includes:
(Property)
– land,
– benefits to arise out of land, and
– things attached to the earth, or permanently fastened
to anything, which is attached to the earth, i.e.:
(a) rooted in the earth, as in the case of trees and shrubs; except—
standing timber, growing crops and growing grass.
(b) imbedded in the earth, as in the case of walls or buildings;
(c) attached to what is so embedded for the permanent beneficial
enjoyment of that to which it is attached;
 Timber trees and standing timber
 Shanta Bai v State of Bombay AIR 1958 SC 532.
 State of Himachal Pradesh v Motilal Pratap Singh & Co AIR 1981
HP 8.
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