TRANSFER OF

PROPERTY ACT,
1882
-EKTA ROSE
ASSITANT PROSFESSOR (ALS)
• The word “property” has not been defined in the Transfer of Property Act, 1882 but has
been used in its widest and most generic sense. Property is a legal term to denote
every kind of interest or right which has an economic content. Thus, it includes an
actionable claim and a right to reconveyance of land, but not a power of appointment.
Property is broadly classified into movable and immovable property. The transfer of
the two entails different forms and procedures.
 WHAT IS PROPERTY
• Meaning- Property is any physical or virtual entity that is owned by an individual or jointly
by a group of individuals (Enjoy/Disburse/Destroy)
Salmond
• Law of Property – in rem - Against the whole world
• Law of Obligation in personam- Against the persons only
• Property's variety of sense as per Salmond
a. Legal Rights (Personal / Proprietary Rights-Rights given by law)
b. Proprietary Rights (Land /Chattles/Shares/Debts. Life, liberty, reputation etc not included)
c. Corporeal Property- Things included. Intangibles like shares etc not included
Austin-Property denotes right of enjoyment, life interests, the whole of a man's assets,
including both rights in personam and rights in rem
• Jurisprudence – Property means only proprietary rights in rem
• Blackstone- "The sole and full dominion which a man claims over the things of the
world to the exclusion of others”
• Supreme Court of India- "Property means the highest right a man can have to anything
being that right which one has to lands or tenements, goods or chattels which do not
depend on another's courtesy. It includes ownership of estates and interests
incorporeal things, and also rights such as trade-marks, copyrights, patents and even
right ‘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 of succession, and of their capacity of being acquired“
• Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 – Property" means
property of any kind, whether movable or immovable, tangible or intangible, and
includes any right or interest in such property.
• Section 2 (11) of the Sale of Good Act, 1930- "Property" means the general property in
goods, and not merely a special property
 THEORIES OF PROPERTY
1.Natural Law Theory
– Grotius-All the things were originally without an owner and whoever occupied them became the
owner
– Blackstone – One who starts making use of a thing acquired an interest in that thing even for a
short period or last long
2.Historical Theory (Bentham /Henry Maine)-Concept of private property had grown out of collective
group or joint property
– Henry Maine -Private Property was chiefly formed by the gradual disentanglement of the separate
rights of individual from the blended rights of the community
• 3 Stages
First Stage- Tendency among people to take things in natural possession and excersise it
independently
Second Stage-Juristic Possession- defacto & dejure
Third Stage – Ownership of Property recorgnized by law -Right and Control
3. Labor Theory/ Positive Theory (Spencer) – a thing is the property of a person, who produces it or
brings it into existence. Property is the result of labor of an individual and who produces only can acquire
it.
4. Psychological Theory (Bentham)
• Bentham-Property is altogether a conception of mind. It is nothing more than an
expectation to derive certain advantages from the object according toone's capacity
• Dean Pound- Property is the acquisitive instinct of an individual who desires to have
control and possession over the property
5. Philosophical Theories
• Property as a means to Ethnical Ends (Aristotle/Green / Hegel)-Itis an end but always a
mean to some other end
• Property as an End in itself
6. Functional Theory/Sociological Theory (Jenks, Laski)
• Jenks-No one can be allowed an unrestricted use of his property, to the detriment to
others. He said that the use of property should conform to the rules of reason and
welfare of the community (Property is the creation of the State- Property and Law born
together and they will die together)
• Laski-Property is a social fact like any other, and it is the character of social facts to
alter Property has further assumed varied aspects and is capable to further change with
the changing norms of society
7. Metaphysical Theory (Kant/ Hege)
– Kant-A thing rightfully belongs to someone when he is connected with it in
such a manner that when someone else uses it without consent, it cause
damages to the owner also (Physical connection between the owner and the
object).
– Hegel- Property is an object in which person has a right to direct his will.
 FEW THEORIES IN DETAIL

1. Historical Theory of Property.

2. Labour Theory (Spencer).
3. Psychological Theory (Bentham).
4. Functional Theory (Jenks, Laski).
5. Philosophical Theories
i. Property as a means to Ethnical Ends.
ii. Property as an End in itself.
HISTORICAL THEORY OF PROPERTY

• According to the Historical theory, the concept of private property had grown out of
collective group or joint property. In the words of Henry Maine, "Private property was
chiefly formed by the gradual disentanglement of the separate rights of individual
from the blended rights of the community”.
• Earlier property did not belong to individuals, not even to isolated families, but the
larger societies composed on patriarchal mode. Later with the disintegration of
family-individual rights came into being.
• Roscoe Pound also pointed out that the earliest form of property was group property. It
was later on that families were partitioned and individual property came into being.
LABOUR THEORY (SPENCER)

• The theory is also known as 'positive theory, This theory insists on the fact that labour
of the individual is a foundation of property. This theory says that, a thing is the
property of a person, who produces it or brings it into existence. The main supporter of
this theory is Spencer, who developed it on the principle of equal freedom. He says
that property is the result of individual labour. Therefore, no person has a moral right
to property which he has not acquired by his personal effort.
PSYCHOLOGICAL THEORY (BENTHAM)

• According to this theory, property came into existence on account of acquisitive

instinct of man. Every individual desires to own things and that brings into being
property.
• According to Bentham, Property is altogether a conception of mind. Itis nothing more
than an expectation to derive certain advantages from the object according to one's
capacity.
• Roscoe Pound also supports Bentham and observed that the sole basis of conception
of property is the acquisitive instinct of individual which motivates him to assert his
claim over objects in his possession and control.
 FUNCTIONAL THEORY (JENKS,
LASKI)
• The theory is sometimes also known as 'sociological theory of property'. It implies that
the concept of property should not only be confined to private rights but it should be
considered as a social institution securing maximum interests of society. Property is
Situated in the society and has to be used in the society.
• According to Jenks, no one can be allowed an unrestricted use of his property, to the
detriment to others. He said that the use of property should conform to the rules of
reason and welfare of the community.
• According to Laski, Property is a social fact like any other, and it, is the character of
social facts to alter. Property has further assumed varied aspects and is capable to
further change with the changing norms of society,
Property is the creation of the State
• The origin of property is to be traced back to the origin of law and the state. Jenks
observed that property and law were born together and would die together. It means
that property came into existence when the state framed laws. Property was nowhere
before law.
• According to Rousseau, "It was to convert possession into property and usurpation into
a right that law and state were founded.“
• The first who enclosed a piece of land and said-'this is mine'-he was the founder of
real society.
• He insisted on the fact that property is nothing but a systematic expression of degrees
and forms of control, use and enjoyment of things by persons that are recognized and
protected by law. Thus, the property was the creation of the state.
PHILOSOPHICAL THEORIES

(i) Property as a means to Ethnical Ends

• In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end,
but always as a means to some other end. According to Aristotle, it may be a means
to the end of good life of the citizens, further in the opinion of Hegel and green, it may
be a means to the fulfillment of the will without which individuals are not full humans.
According to Rousseau, Jefferson, Friedman, it may be a means as a pre-requisite of
individual freedom seen as a human essence
• Similarly, the outstanding critics of property like Winstanley, Marx have denounced it
as destructive of human essence, a negative means in relation to an ontological end.
In all the above cases, property is taken as a means and not as an end.
(ii) Property as an End in itself
• The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property
as an end. It is maximization of utilities. According to Bentham, the command of
utilities is measured by the material wealth. The maximization of material wealth is
indistinguishable from the ethical end; property is virtually an end in itself. In the words
of Locke, the unlimited accumulation is a natural right of the individual that is an end
in itself. Aristotle and Aquinas have considered, "property as a means, concluded for a
limited property right". Hegel and Green, treats property, as a means, concluded for an
unlimited right. The supporters of utilitarian tradition treat, accumulation of property,
as an end, always meant a right of unlimited accumulation. Later the concept changed
and the utilitarian Bentham held that the ultimate end to which all social
arrangements should be directed was the maximization of the aggregate utility
(Pleasure minus pain) of the members of the society. While listing out the kinds of
pleasures, including non material one, he held that wealth, the possession of material
goods was so essential to the attainment of all other pleasures that it could be taken
as the measure of pleasure or utility as such.
 PROPERTY 
• The term 'property' is derived from the Latin term ‘Properietat’ and the French equivalent term is
‘Proprius’ which means a thing owned/possessed.
• Immovable property does not include standing timber, growing crops or grass (sec. 3)
• Salmond- it means proprietary rights in rem.
• John Austin- Property is a right availing against the world i.e. jus in rem.
• It is right to possess, use, enjoy, dispose, commercial exploitation, apply for different purposes,
inherit.
• Property can be tangible or intangible.
• Property is no men genralisssimeem and extend to every species of valuable and interest
including real and personal property, easement, franchises, incorporeal heridaments.
• It is unrestricted and exclusive right to a thing. It include right to exclude.
• Property is a legal concept which includes a bundle of rights.
• Police Act, 1861 sec. 1: property includes any movable property, money or valuable security.
• Sale of Goods Act 1930: property means the general property in goods and not merely a special
property.
• Provincial Insolvency Act 1920: property includes any property over which or the profits of which
any person has disposing power which he may exercise for his own benefit.
KINDS OF PROPERTY
 NATURE OF PROPERTY

In the TP Act, property is used as •

• Tangible material things. (land, house, furniture, jewellery, etc)
• Rights which are exercised over material things. (to enjoy, possess, to sell, to gift etc)
• Rights which are not exercised over any material things (to repayment of a debt)
• Property means a proprietary right in rem or in personam.
• Property includes all a person's legal rights of whatever description.
 KINDS OF PROPERTY
• REAL PROPERTY: this property admitted of specific recovery and as this was originally
allowed only where claimant had freehold interest. e.g.. land, building or anything attached
to it.
• PERSONAL PROPERTY: it comprise of goods or things movable. In such property in
respect of which only a personal action lay was classed as personal property.
• TANGIBLE PROPERTY: such property can be felt or touched.
• INTANGIBLE PROPERTY: such property cannot be felt or touched. • Tangible or intangible
property may be movable or immovable.
• CORPOREAL PROPERTY (dominium corporis): it its the right of ownership in material
things. It can be seen or felt.
• INCORPOREAL PROPERTY (dominium juris): It cannot be seen or felt. It may be jura in
realiena i.e which one has in the property owned by another OR jura in repropria over
immaterial things i.e. the subject matter of a right of property is either a material or
immaterial things recognised by law as property.
• MOVABLE PROPERTY: it is goods or things which are movable.
• IMMOVABLE PROPERTY: it is permanent, fixed, cannot be moved and must be attached to
property permanently.