Transfer of Property in Law:
The Transfer of Property Act, of 1882 happened to be one of the early pieces of legislation of the nineteenth century. The Act is having an important place in the statute book with the main objective to render the system of transfer of immovable property a system of public transfer. Registration is therefore insisted upon for completing the transfer, except in cases of transactions of small value. Before diving into the definition of transfer of property, I would like to explain property.
Property is a very wide term and would include anything which carries some value and over which the right of ownership may be exercised. The word property in its most comprehensive sense includes all legal rights of a person except his personal rights, which constitute his status or personal condition.
Meaning of Property:
The word ‘property’ is derived from the Latin term ‘properietate’ and the French equivalent ‘proprius’ which means a thing owned. The concept of property and ownership are very closely related to each other. There can be no property without ownership and ownership without property.
Definition of Property:
According to Salmond:
“Property includes all a person’s legal rights, of whatever description. A man’s property is all that is his in-law”.
According to Cohen:
“Property is defined as relations between persons in relation to things”.
Related Post: Acts, Rights and Obligations
Definition of Transfer of Property:
The definition of transfer of property means an act by which a living person can convey the property, in present or in the future, to one or more other living persons, or to himself, or to himself and one or more other living persons, and to transfer property is to perform such act.
Types/Kinds of Property:
Property is essential 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; rights in re propria and rights in re aliena or encumbrances.
1. Corporeal Property:
Corporeal property is the right of ownership of material things. It is always visible and tangible. Corporeal property can be perceived by the senses. It can be seen or touched.
Land, houses, ornaments, gold, car, bike, etc.
Corporeal property may be divided into two classes-
- Movable property (Chattels) and immovable property. (land and buildings)
- Real property and personal property
2. Incorporeal property:
The incorporeal property is also called intellectual or conventional property. It includes all those valuable interests which are protected by law. Incorporeal property is intangible. It cannot be perceived by the senses.
Patents, copyrights, trademarks, rights of way, etc.
Incorporeal property is divided into two classes-
- Jura in re propria over Material things (for example patents, copyrights, trademarks, etc)
- Jura in re Aliena encumbrances, whether over material or immaterial things (for example lease, mortgages, servitude, etc).
Movable Property and Immovable Property:
All corporeal property is either movable or immovable. In English law, these are termed chattels and land respectively.
Movable Property is one, which can be transferred from one place to another place with human efforts.
According to the General Clauses Act, of 1897,
“Immovable property includes land, benefits arising out of the 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 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. The movable property includes corporeal property which is not immovable.
According to Salmond immovable property (i.e., land) has the following elements-
- A determinate portion of the surface of the earth.
- The ground beneath the surface is down to the center of the earth.
- The column of space above the surface ad infinitum.
- All objects which are on or under the surface in their natural state for example-minerals natural, vegetation, or stones lying loose upon the surface.
- An object placed by a human agency on or under the surface of the land with the intention of permanent annexation, for example, house walls, doors, fences, etc.
Real and Personal Property:
In English law, the property has been divided into real and personal property. This division is identical to a great extent to 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.
The real property includes all rights over land with such additions and exceptions, as the law has deemed fit.
The law of personal property includes all other proprietary rights whether they are in rem or in personam.
Public property and private property:
Having regard ownership of property is either public or private-
Public property is that owned by the public as such in some governmental capacity. It is used as a designation of which are Public Juris and therefore, are considered as being owned by the public. The entire state or the community and not restricted to the domain of a private person or that which belongs to a state or political constituent like provinces etc.
Private property is that which is owned by an individual or some other private person.
What May Not be Transferred:
- The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, cannot be transferred.
- A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby.
- An easement cannot be transferred apart from the dominant heritage.
- An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
- A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
- A mere right to sue cannot be transferred.
- A public office cannot be transferred, nor can the salary of a public officer, whether before or after it becomes payable.
- Stipends allowed to the military, naval, air force, and civil pensioners of Government and Political pensions cannot be transferred.
- No transfer can be made for unlawful object or consideration within the meaning of section 23 of the Contract Act, 1872, or to a person legally disqualified to be a transferee.
It is concluded that the definition of transfer of property means an act by which a living person can convey the property, in present or in the future, to one or more other living persons, or to himself, or to himself and one or more or other living persons, and to transfer property is to perform such act.