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Basic Concept of Law of Property
Concept of Property
Kinds of Property
Introduction of Law of Property
Pakistani Statutes and Constitutional Provisions regarding Law of
Property
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1. Concept of Property:
In simple words, property means (i) the thing itself, or (ii) some or all the
rights in a thing.
2. Kinds of Property:
Tangible property means such property which can be perceived and has
physical existence. E.g. Book, Computer, Mobile and Pen are the
examples of tangible property.
1
PLD 2011 SC 44; PLD 1958 Lahore 706
2
AIR 1951 Hyd. 1
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Intangible property means such property which has no physical existence.
So, it cannot be perceived. E.g. Good will, Patent right, Literacy copy right
and Musical copy right.
ii. The ground beneath the surface down to the center of the earth.
V. Absolute Property:
When a person has full and complete title and control over a property, it is
known as “Absolute Property”.
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When a property does not longer remain in the possession of a person due
to accident, negligence or carelessness and that property cannot be located
by any ordinary and diligent search.
What distinguishes property law from other kinds of law is that property
law deals with the relationships between and among members of a society
with respect to “things.”
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persons. This Act is an extension to the Contract Act 1872, since it is an
enacted law for transfers that take place in the consequence of a contract.
The main objectives of this Act are to ascertain landowners and other
affected families have to go through minimal disturbance, the process to
acquire land can only be undertaken in contemplation with the local
government and to ensure that compensation offered to the affected
families is adequate.
The object of The Registration Act, 1908 and registering a document is,
firstly, to give discipline and public notice to the world that such a
document has been executed, secondly, to prevent fraud and forgery and,
thirdly, to secure that every person dealing with property, where such
dealings require registration, may rely with confidence upon the
statements contained.
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The Transfer of Property Act, 1882
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I. Scope
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For a transfer of property, there must be a transfer between living or a
juristic person. Therefore, a property may not be transferred to a dead
person or unborn child.
i. Right of Easement
ii. Such interest of property which enjoyment is restricted to the owner.
iii. Political pension, public office and the salary of the public officer.
iv. Right to Sue
v. Stipends to military, navy or the airforce, political pensioners and
civil pensioners
vi. Against the natural interest
IV. Prescribed Form:
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V. Conditional Transfer of Property:
Under Section 25 of the transfer of property Act, 1882, the property can
be transferred complying to the condition mentioned. If the condition
becomes impossible, forbidden by law, opposed to public policy, or is
immoral the transfer would be held void.
Illustration: A is interested in purchasing B’s property but B sets a
condition that A in order to purchase B’s property has to kill C here the
transfer is through unlawful act, therefore, the transfer would be held
void.
i. Sale:
ii. Mortgage:
iii. Leases:
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The possession of the property is being transferred from one person to
another person for a fixed price in this scenario there is no transfer of
ownership.
iv. Exchange:
v. Gift:
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Transfer of Property By Act of Parties
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8. Non-transferable Property:
Property of any kind, movable or immovable, tangible or intangible, may
be transferred, except as otherwise provided by this Act or by any other
law for the time being enforce. Section 6 of TPA 1882 enumerates the
following to be non-transferable:
3
AIR 1922 Mad. 197.
4
Section 7 of The Transfer of Property Act, 1882
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10. Operation and Effects of Transfer:
5
Section 8 of The Transfer of Property Act, 1882
6
Section 9 of The Transfer of Property Act, 1882
7
Section 54 of The Transfer of Property Act, 1882
8
Section 54 of The Transfer of Property Act, 1882
9
Section 59 of The Transfer of Property Act, 1882
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x. Lease of immovable property from year to year or, for any term
exceeding one year10
xi. Exchange of immovable property of the value of Rs. 100 or
upwards11
10
Section 107 of The Transfer of Property Act, 1882
11
Section 118 of The Transfer of Property Act, 1882
12
Section 123 of The Transfer of Property Act, 1882
13
Section 131 of The Transfer of Property Act, 1882
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Sales of Immovable Property
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In simple words we can say that “Sale” is the transfer of ownership from
seller to purchaser in exchange for the price.
14
Section 54 of The Transfer of Property Act, 1882
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Such transfer, in the case of tangible immovable property of the value of
one hundred rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered instrument.
In easy words it also can be said that; A contract for the sale of
immoveable property is a contract that a sale of such property shall take
place on terms settled between the parties. It does not, of itself, create any
interest in or charge on such property. Thus the title in the property passes
only upon the delivery of possession or registration of the document. In a
contract for sale, some equities do arise in favor of the transferee.
15
Section 54 of The Transfer of Property Act, 1882
16
Section 54 of The Transfer of Property Act, 1882
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i. A sale under TPA of immovable property is a transfer of ownership.
A contract for the sale of immovable property is a mere agreement
that a sale of the property is to take place in the future on terms
settled between the parties
ii. A sale under TPA creates a right in rem. A contract for sale creates a
right in personam.
16. Rights and Liabilities of Seller:
In the absence of a contract to the contrary, the buyer and the seller of the
immovable property respectively are subject to the liabilities, and have the
rights, mentioned in the rules next following or such of them as are
applicable to the property sold.
The seller is bound to disclose to the buyer any material defect in the
property or in the seller’s title thereto of which the seller is, and the buyer
is not, aware, and which the buyer could not with ordinary care discover;
The seller is bound to produce to the buyer on his request for examination
all documents of title relating to the property which are in the seller’s
possession or power;
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The seller is bound to answer to the best of his information all relevant
questions put to him by the buyer with respect to the property or the title
thereto;
Between the date of the contract of sale and the delivery of the property, to
take as much care of the property and all documents of title relating thereto
which are in his possession as an owner of ordinary prudence would take
of such property and documents;
The seller is bound to give, on being so required, the buyer, or such person
as he directs, such possession of the property as its nature admits;
The seller is bound to pay all public charges and rent accrued due in
respect of the property up to the date of the sale, the interest on all
encumbrances on such property due on such date, and,except where the
property is sold subject to encumbrances, to discharge all encumbrances
on the property then existing.
The Seller is entitles to the rents and profits of the property till the
ownership thereof passes to the buyer.
i. Disclosure of Defects:
The buyer is bound to disclose to the seller any fact as to nature or extent
of the seller’s interest in the property of which the buyer is aware, but of
which he has reason to believe that the seller is not aware, and which
materially increases the value of such interest.
The buyer is bound to pay or tender, at the time and place of completing
the sale, the purchase-money to the seller or such person as he directs.
Provided that, where the property is sold free from encumbrances, the
buyer may retain out of the purchase money the amount of any
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encumbrances on the property existing at the date of the sale, and shall pay
the amount so retained to the persons entitled thereto.
The buyer is bound to bear any loss arising from the destruction, injury or
decrease in value of the property not caused by the seller, Where the
ownership of the property has passed to the buyer.
The buyer is bound to pay all public charges and rent which may become
payable in respect of the property, the principal money due on any
encumbrances subject to which the property is sold, and the interest
thereon afterwards accruing due, where the ownership of the property has
passed to the buyer, as between himself and the seller.
b. Rights of Buyer:
i. Right to the Benefit of any Improvement:
The buyer is entitled to compel the seller to perform the contract and
deliver the subject-matter to buyer.
18. Marshalling:
If the owner of two or more properties mortgages them to one person and
then sells one or more of the properties to another person, the buyer is, in
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the absence of a contract to the contrary, entitled to have the mortgaged-
debt satisfied out of the property or properties not sold to him, so far as the
same will extend, but not so as to prejudice the rights of the mortgagee or
persons claiming under him or of any another person who has for
consideration acquired an interest in any of the properties.17 This process is
known as Marshalling by the subsequent purchaser.
17
Section 56 of The Transfer of Property Act, 1882
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Exchange of Property and Money
Introduction of Exchange
Definition of Exchange
Rights of Party Deprived of Thing Received In Exchange
Rights and Liabilities of Parties
Exchange of Money
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If a part of the consideration is land and part cash, the transaction is not
one of sale but is one of exchange.20
18
Section 118 of The Transfer of Property Act, 1882
19
Section 118 of The Transfer of Property Act, 1882
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21. Rights of Party Deprived of Thing Received In Exchange:
According to section 120 of the transfer of property Act, each party has the
rights and is subject to the liabilities of a seller as to that which he gives,
and has the rights and is subject to the liabilities of a buyer as to that which
he takes.22
20
ILR 1957 Mys. 157.
21
Section 119 of The Transfer of Property Act, 1882
22
Section 120 of The Transfer of Property Act, 1882; For detail read the Rights, and Liabilities of Buyer and
Seller
23
Section 121 of The Transfer of Property Act, 1882
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Gifts of Immovable Property
Definition of Gift
Acceptance When To Be Made
Essential Elements of Gift
Transfer How Effected
4.1. In the Case of Immovable Property
4.2. In the Case of Movable Property
Gift of Existing and Future Property
Gift To Several of Whom One Does Not Accept
When Gift May Be Suspended Or Revoked
Onerous Gift
Universal Donee
10.Gift Under Islamic Law
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Such acceptance must be made during the lifetime of the donor and while
he is still capable of giving. If the donee dies before acceptance, the gift is
void.25
24
Section 122 of The Transfer of Property Act, 1882
25
Section 122 of The Transfer of Property Act, 1882
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26. Essential Elements of Gift:
a. Parties of Gift:
There are two parties in Gift. One is known as Donor and the other is
called Donee.
b. Subject Matter:
c. Transfer of Ownership:
d. Transfer of Property:
e. Without Consideration:
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For the purpose of making a gift of immovable property, the transfer must
be effected by a registered instrument signed by or on behalf of the donor,
and attested by at least two witnesses.26
For the purpose of making a gift of movable property, the transfer may be
effected either by a registered instrument signed as aforesaid or by
delivery.
Such delivery may be made in the same way as goods sold may be
delivered.27
A gift of a thing to two or more donees, of whom one does not accept it, is
void as to the interest which he would have taken had he accepted.29
The donor and donee may agree that on the happening of any specified
event which does not depend on the will of the donor a gift shall be
suspended or revoked; but a gift which the parties agree shall be revocable
wholly or in part, at the mere will of the donor, is void wholly or in part, as
the case may be.
26
Section 123 of The Transfer of Property Act, 1882
27
Section 123 of The Transfer of Property Act, 1882
28
Section 124 of The Transfer of Property Act, 1882
29
Section 125 of The Transfer of Property Act, 1882
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A gift may also be revoked in any of the cases (save want or failure of
consideration) in which, if it were a contract, it might be rescinded.
Illustrations
(a) A gives a field to B, reserving to himself, with B's assent, the right to
take back the field incase B and his descendants dies before A. B dies
without descendants in A's lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the
right to take back at pleasure Rs. 10,000 out of the
lakh. The gift holds good as to Rs. 90, 000, but is void as to Rs. 10,000,
which continue to belong to A.
8. Onerous Gift:
30
Section 126 of The Transfer of Property Act, 1882
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Onerous gift to disqualified person. A donee not competent to contract and
accepting property burdened by any obligation is not bound by his
acceptance. But if, after becoming competent to contract and being aware
of the obligation, he retains the property given, he becomes so bound.31
Illustrations
(a) A has shares in, X, a properous joint stock company, and also shares in
Y A joint stock company, in difficulties. Heavy calls are expected in
respect of the shares in Y. A gives B all his shares in joint stock
companies. B refuses to accept the shares in Y. He cannot take the shares
in X.
(b) A having a lease for term of years of a house at a rent which he and his
representatives are bound to pay during the term, and which is more than
the house can be let for, gives to B the lease, and also, as a separate and
independent transaction a sum of money. B refuses to accept the lease. He
does not by this refusal forfeit the money.
9. Universal Donee:
31
Section 127 of The Transfer of Property Act, 1882
32
Section 128 of The Transfer of Property Act, 1882
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10.Gift Under Islamic Law:
Principles of The Transfer of property Act, 1882 shall not affect any rule
of Islamic Law regarding Gift.33
33
Section 129 of The Transfer of Property Act, 1882
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