A Project Report on Concepts and Incidents of Property

TRANSFER OF PROPERTY

Submitted by:Aaditya Vasu

2013001
SEMESTER 3rd
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
VISAKHAPATNAM

Acknowledgement
Writing a project is one of the most significant academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.
First of all I am very grateful to my subject teacher Prof. Raghuram Sir, without the kind support
of whom and help the completion of the project was a herculean task for me. He donated his
valuable time from his busy schedule to help me to complete this project and suggested me from
where and how to collect data.
I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project. I also owe special thanks to my parents for their
selfless help which was very useful in preparing the project & without whose support this project
wouldnt have been prepared.

Aaditya Vasu
2013001
3rd Semester
2

Index
1. Introduction_____________________________________________________(4)
2. Property Rights and Rights to People_________________________________ (6)
3. Property Rights and Personal Rights__________________________________ (6)
4. Classification____________________________________________________ (7)
5. Possession______________________________________________________ (7)
6. Transfer of Property_______________________________________________ (8)
7. Legal incidents of Transfer__________________________________________ (9)
8. Doctrine of Lost grant______________________________________________ (9)
9. Conclusion_______________________________________________________(10)
10. Bibliography_____________________________________________________ (11)

Introduction

The word property, in everyday usage, refers to an object (or objects) owned by a person a
car, a book, or a cellphone and the relationship the person has to it. In law, the concept
acquires a more nuanced rendering. Factors to consider include the nature of the object, the
relationship between the person and the object, the relationship between a numbers of people in
relation to the object, and how the object is regarded within the prevailing political system. Most
broadly and concisely, property in the legal sense refers to the rights of people in or over certain
objects or things.
The Transfer of Property Act 1882 is an Indian legislation which regulates the transfer of
property in India. It contains specific provisions regarding what constitutes transfer and the
conditions attached to it. According to the Act, 'transfer of property' means an act by which a
person conveys property to one or more persons, or himself and one or more other persons. The
act of transfer may be done in present or for future. The person may include an individual,
company or association or body of individuals, and any kind of property may be transferred.
Includes transfer of Immovable Property.
A comprehensive definition of Immovable Property is not given in the Transfer of Property Act.
Section 3, the Interpretation of the Act, says "property does not includes standing timber,
growing crops or grass. Section 3(26), The General Clauses Act, 1897, defines, " 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. Also, The Registration Act,1908, 2(6)
"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.
A transfer of property passes forthwith to the transferee all the interest which the transferor is
then capable of passing in the property, unless a different intention is expressed or implied.
According to Section 43 of the Transfer of Property Act 1882, in case a person either
fraudulently or erroneously represents that he is authorised to transfer certain immovable
property and does some acts to transfer such property for consideration, then such a transfer will
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continue to operate in future. It will operate on any interest which the transferor may acquire in
such property.
This will be at the option of the transferee and can be done during the time during which the
contract of transfer exists. As per this rule, the rights of bona fide transferee, who has no notice
of the earlier transfer or of the option, are protected. This rule embodies a rule of estoppel i.e. a
person who makes a representation cannot later on go against it.
Every person, who is competent to contract, is competent to transfer property, which can be
transferred in whole or in part. He should be entitled to the transferable property, or authorised to
dispose of transferable property which is not his own. The right may be either absolute or
conditional, and the property may be movable or immovable, present or future. Such a transfer
can be made orally, unless a transfer in writing is specifically required under any law.
According to Section 6 of the Transfer of Property Act, property of any kind may be transferred.
The person insisting non-transferability must prove the existence of some law or custom which
restricts the right of transfer. Unless there is some legal restriction preventing the transfer, the
owner of the property may transfer it. However, in some cases there may be transfer of property
by unauthorised person who subsequently acquires interest in such property.
In case the property is transferred subject to the condition which absolutely restrains the
transferee from parting with or disposing of his interest in the property, the condition is void. The
only exception is in the case of a lease where the condition is for the benefit of the lessor or those
claiming under him. Generally, only the person having interest in the property is authorised to
transfer his interest in the property and can pass on the proper title to any other person.
The rights of the transferees will not be adversely affected, provided: they acted in good faith;
the property was acquired for consideration; and the transferees had acted without notice of the
defect in title of the transferor.
It should be noted that these conditions must be satisfied:

There must be a representation by the transferor that he has authority to transfer the immovable
property. The representation should be either fraudulent or erroneous. The transferee must act on
the representation in good faith. The transfer should be done for a consideration. The transferor
should subsequently acquire some interest in the property he had agreed to transfer. The
transferee may have the option to acquire the interest which the transferor subsequently acquires.

Property rights and Rights to People.

Property rights are rights over things enforceable against all other persons. By
contrast, contractual rights are rights enforceable against particular persons. Property rights may,
however, arise from a contract; the two systems of rights overlap. In relation to the sale of land,
for example, two sets of legal relationships exist alongside one another: the contractual right to
sue for damages, and the property right exercisable over the land. More minor property rights
may be created by contract, as in the case of easements, covenants, and equitable servitudes.
A separate distinction is evident where the rights granted are insufficiently substantial to confer
on the non-owner a definable interest or right in the thing. The clearest example of these rights is
the license. In general, even if licenses are created by a binding contract, they do not give rise to
property interests.

Property rights and Personal Rights.

Property

rights

are

also

distinguished

from personal

rights.

Practically

all

contemporary societies acknowledge this basic ontological and ethical distinction. In the past,
groups lacking political power have often been disqualified from the benefits of property. In an
extreme form, this has meant that people have become "objects" of propertylegally "things"
or chattels. (See slavery.) More commonly, marginalized groups have been denied legal rights to
own property. These include Jews in England and married women in Western societies until the
late 19th century.

The dividing line between personal rights and property rights is not always easy to draw. For
instance, is one's reputation property that can be commercially exploited by affording property
rights to it? The question of the proprietary character of personal rights is particularly relevant in
the case of rights over human tissue, organs and other body parts.
There have been recent cases of women being subordinated to the fetus, through the imposition
of unwanted caesarian sections. English judges have recently made the point that such women
lack the right to exclusive control over their own bodies, formerly considered a
fundamental common-law right. In the United States, a "quasi-property" interest has been
explicitly declared in the dead body. Also in the United States, it has been recognised that people
have an alienable proprietary "right of publicity" over their "persona". The patent\patenting
of biotechnological processes

and

products

based

on human genetic

material may

be

characterised as creating property in human life.

Classification
Property law is characterised by a great deal of historical continuity and technical terminology.
The basic distinction in common law systems is between real property (land) and personal
property (chattels).
Before the mid-19th century, the principles governing the transfer of real property and personal
property on an intestacy were quite different. Though this dichotomy does not have the same
significance anymore, the distinction is still fundamental because of the essential differences
between the two categories. An obvious example is the fact that land is immovable, and thus the
rules that govern its use must differ. A further reason for the distinction is that legislation is often
drafted employing the traditional terminology.
The division of land and chattels has been criticised as being not satisfactory as a basis for
categorising the principles of property law since it concentrates attention not on the proprietary
interests themselves but on the objects of those interests. [3] Moreover, in the case of fixtures,
chattels which are affixed to or placed on land may become part of the land.
Real property is generally sub-classified into:

1. Corporeal hereditaments tangible real property (land)

2. Incorporeal hereditaments intangible real property such as an easement of way.

Possession
The concept of possession developed from a legal system whose principal concern was to avoid
civil disorder. The general principle is that a person in possession of land or goods, even as a
wrongdoer, is entitled to take action against anyone interfering with the possession unless the
person interfering is able to demonstrate a superior right to do so.
In England, the Torts Act 1977 has significantly amended the law relating to wrongful
interference with goods and abolished some longstanding remedies and doctrines.

Transfer of Property
The most usual way of acquiring an interest in property is as the result of a consensual
transaction with the previous owner, for example, a sale or a gift. Dispositions by will may also
be regarded as consensual transactions, since the effect of a will is to provide for the distribution
of the deceased person's property to nominated beneficiaries. A person may also obtain an
interest in property under a trust established for his or her benefit by the owner of the property.
It is also possible for property to pass from one person to another independently of the consent of
the property owner. For example, this occurs when a person dies intestate, goes bankrupt, or has
the property taken in execution of a court judgment.
Section 8 of the Transfer of Property Act says about the Operation of transfer, it deals with with
effects of transfer provides that unless a different intention is present a transfer of property passes
all the interest which the transferor is then capable of passing in the property and its legal
incidents to the transferee. The object of this section is to clearly define what are the legal
incidents of each particular class of property which pass along with the property when it is
transferred.1 The Principles underlying this section are that the grantor shall not derogate from

1 Bishwanath Prasad Singh v. Rajendra Singh, AIR 2006 SC 2965

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his own grant and res essorira sequiter rem principaleur which means that an accessory follows
the principal thing:1. Land: where the property to be transferred is land, its incidents will include-

(i)

Easements attached to it.

Its rents and profits accruing after the transfer
All things attached to the Earth.
2. Machinery: Where the property to be transferred is machinery, its movable parts will be
(ii)
(iii)

its incidents.
3. House: Where the property to be transferred is a house , its legal incidents will include
(i)
Easement annexed to it.
(ii)
Its rent accruing after the transfer.
(iii)
Locks, keys, bars, doors, windows and all the other things provided with it for
(iv)

permanent use.
Debt: Where the property to be transferred is a debt or other actionable claims,
those securities will be legal incidents which are only for the debt transferred to

(v)

the transferee.
Money: Where the property to be transferred to the transferee is money or other
property yielding money, its legal incidents which are only for the debt transferred
to the transferee.

Legal Incidents of Transfer.

According to Section 8, on the transfer of property not only all the interest of the
transferor in the property pass to the transferee but also his interest in the legal incidents
of such property. An Incident is a thing necessarily depending upon or appertaining to,
or following another that is more worthy as rent to incident is a reversion. The Webster
dictionary has defined an incident as something appertaining to or passing with or
depending on another called the principal.

Doctrine of Lost Grant

Where the tanks belonging to the cultivator community of the village were used
uninterruptedly for years by fishermen community of the village, it was held that such
right of fishermen could not be traced either to a grant, custom or presumption, and

therefore, the cultivator community, the owners of the tanks, could restrain the fishing
community from using the tanks.2

Conclusion
Unless a different intention is expressed or necessarily implied, a transfer of property passes
forthwith to the transferee all the interest which the transferor is then capable of passing in the
property and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and
profits thereof accruing after the transfer, and all things attached to the earth; and, where the
property is machinery attached to the earth, the moveable parts thereof; and, where the property
is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the
locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where
they are also for other debts or claims not transferred to the transferee), but not arrears of interest
accrued before the transfer; and, where the property is money or other property yielding income,
the interest or income thereof accruing after the transfer takes effect.

2 Tulsi Ram v. Mathurasagar Pan Tatha Krishi, AIR 2003 SC 243.

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Bibliography
Books referred:

Avtar Singh, the Transfer of Property Act, Third Edition, Universal Law Publishing.
Jhabwala, The Transfer of Property Act, Fourth Edition, Eastern law house.

Web Sources:

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http://en.wikipedia.org/wiki/The_Transfer_of_Property_Act_1882
www.lawcommissionofindia.nic.in