LawpreneurzTRANSFER OF PROPERTY
SPECIALITIES OF THE ACT
Transfer of Property Act, 1882 is a general law on transfer of property by act of parties. It has to be read with Indian Registration Act, Stamp Act and Indian Contract Act for complete knowledge of property law. There are many other laws for example Intellectual Property Right (Total 8) Acts, Tenancy Legislations of States, Zamindari Abolition Laws (UPZA. and LR Act 1951) and Municipal Laws (Building laws, construction laws, electricity, water and other tax laws) that need to be studied with TP Act. Agricultural Legislation and Mohammedan Law continue to be in property law, but TP. Act does not apply to these two, the Act has area or territorial limits. Despite above, TP Act has 6 specialties that need to be spelt out.
The opening line of the Act shows that the Transfer of Property Act, 1882 (6th report, IVth Law Commission), was not any fresh adventure in the field. The law prior thereto, stood centered in various Provincial and Central Acts and the purpose of 1882 Act was to consolidate them, the Schedule appended to the Act refers to four statutes (all now repealed), Eight Acts of the Governor General in Council (partly repealed; extent of repeal specified) and three Regulations (Extent of repeal specified).
The Act IV of 1882 (that is TP Act) repeals these to the extent mentioned in the Schedule. Another thing expressed here refers to a very important limit of the Act. It is limited to transfer in effect only to act of parties. The Act does not apply to cases of transfers by operation of law. Third remarkable thing about the Act is, that it no where defines 'what is property. It merely defines the word 'transfer of Property in Section 5.
The English law for internal purposes makes distinction in between Realty and Personality. This distinction has found no place in Transfer of Property Act, 1882. Instead, the international distinction between Movable and immovable property has been adopted. For international transactions, the distinction between movable and immovable is recognised even in England. Fourth the word immovable property has been negatively defined. This, therefore, requires to be supplemented from many other relevant Acts which are pari materia.
The Indian Contract Act, Registration and Stamps Act and General Clauses Act may be referred to as important enactments in these matters. Fifth Transfer of Property Act has a very unusual scheme. Chapter II, Part A (from Sections 5-37) applies whether property is immovable or movable. Part B (Sections 38-53-A) applies only to transfer of immovables. Chapters III, IV and V again deal with immovables only. Chapters VI and VII apply to both movables and immovables. Chapter VIII applies to Actionable Claims like debt and benefits. These are neither movable property nor immovable property.
What 'Property' means.- The Transfer of Property Act nowhere defines the word 'property'. It uses the word property in the sense it is usually so meant and considered. It is a thing that is capable of being owned and transferred. UPZA. and L.R. Act, 1951 defines property and so does Benami Transfer Act, 1988. Normal meaning of the term is more or less identical. "Ownability" and "transferability" are inherent qualities that constitute property. In simple words, the Property in common sense, includes
- Physical Property Corpus) (Tangible)-This may be (i)Immovables, (ii) Movables, (iii) Choses in possession and choses in action (iv) Realty and Personality.
- Intellectual Property (Mental) (Intangibles) (Given in 8 Acts).-Copy Right Act, Patent Act, Designs Act, Trade and Merchandise Act, Biodiversity, etc. provide for Intellectual Property Rights (I.P.R.).
Kinds of property
Broadly property is divided into three kinds. Those are as follows:
1.Movable and Immovable property
Movable property: The definition of movable property is given differently in many acts.
Some of the definitions are as follows:
Section 3(36) of the General Clauses Act defines movable property as:"Movable property shall mean property of every description, except immovable property".
Section 2(9) of the Registration Act, 1908 defines property as: Movable property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.
Section 22 of IPC defines property as: The words "movable property" is 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. Things attached to the land may become movable property by severance from the earth. For example Cart-loaded of earth, or stones quarried and carried away from the land become movable property.
Immovable property- The term "Immovable Property occurs in various Central Acts However, none of those Acts conclusively define thus term. The most important Act which deals with immovable property is the Transfer of Property Act (TP Act). Even in the TP Act this term is defined in exclusive terminology.
According to Section 3 of that Act, Immovable Property" does not include standing timber, growing crops or grass. Thus, the term is defined in the Act by excluding certain things. "Buildings" constitute immovable property and machinery, if embedded in the building for the beneficial use thereof, must be deemed to be a part of the building and the land on which the building is situated. As per Section 3(26) of the General Clauses Act, 1897, '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." This definition of immovable property is also not exhaustive. (ii) Section 2(6) of the Registration Act, 1908 defines "Immovable Property" as under:
"Immovable Property includes land, building, 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 or grass."
The above definition implies that building is included in the definition of immovable property.
The following have been held as immovable property:
A right to collect rent, life interest in the income of the immovable property, right of way, a ferry, fishery, a lease of land.
The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per Section 269UAd) of the Income Tax Act, 1961, Immovable Property is defined as under:
(a) Any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings and other things also.
Any rights in or with respect to any land or any building or part of building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, or other association of persons or by way of any agreement or any arrangement of whatever nature, not being a transaction by way of sale, exchange or lease of such land, building or part of a building.
2. Tangible and Intangible property
Tangible property: Tangible property refers to any type of property that can generally be moved (ie, it is not attached to real property or land), to touched or felt. These generally include items such as furniture, clothing, jewels, art, writings, or household goods.
Intangible property: Intangible property refers to personal property that cannot actually be moved, touched or felt, but instead represents something of value such as negotiable instruments, securities, service (economics), and intangible assets including chose in action.
3. Intellectual property
Intellectual property is a term referring to a number of distinct types of creation of the mind for which property rights are recognized-and the corresponding fields of law. Property does not just comprise of tangible things like houses, cars, furniture, currency, investments etc. and such assets are not the only kind that can be protected by law. There are many other forms of intangible property known as intellectual property that have been recognized under the law and granted protection against infringement
Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Patents, trademarks, copyrights and designs are the four main categories of intellectual property.
Patents: Patents are used to protect new product, process, apparatus, and uses. Providing the invention is not obvious in light of what has been done before, is not in the public domain, and has not been disclosed anywhere in the world at the time of the application. The invention must have a practical purpose. Patents are registrable nationally; the patent granted by European Patent Office is a "bundle" of national patents. No EU-wide single patent system exists to date, although the Community Patent is in the final stages of enactment. Registration provides a patentee the right to prevent anyone making, using, selling, or importing the invention for 20 years Patents are enforced by court proceedings. In addition, the Regulation on Supplementary Protection Certificates (SPC 8), granted "patent extensions of upto 5 years to pharmaceutical and plant products, providing as much as 25 years of patent life for originator medicines.
Trade Marks: A symbol (logo, words, shapes, celebrity name, and jingles) used to provide a product or service with a recognisable identity to distinguish it from competing products. Trademarks protect the distinctive components which make up the marketing identity of a brand, including pharmaceuticals. They can be registered nationally or internationally, enabling the use of the symbol.l Trade mark rights are enforced by court proceedings in which injunctions and/or damages are available in counterfeiting cases, authorities such as Customs, the police, or consumer protection can assist. An unregistered trade mark is followed by the letters. This is enforced in court if a competitor uses the same or similar name to trade in the same or a similar field.
Copyright: Copyright is used to protect original creative works, published editions, sound recordings, films and broadcasts. It exists independently of the recording medium, so buying a copy does not confer the right to copy. Limited copying (photocopying, scanning, downloading) without permission is possible, e.g., for research Publication of excerpts or quotes needs acknowledgment. An idea cannot be copyrighted, just the expression of it. Nor does copyright exist for a title, slogan or phrase, although these may be registered as a trade mark. Copyright applies to the Internet with web pages protected by many different copyrights, so that permission should be asked to copy or print a page, or insert a hyperlink to it. Material cannot be posted on a Web site (Internet included) without permission from the copyright holder. Copyright is not registrable because it arises automatically on creation. Copyright is protected in the EU for 70 years after the author's death for creative works, 50 years from broadcasts, etc and 25 years for published editions. Use of by court proceedings is not required in most of Europe Copyright is enforced.
Design Registration: Design registrations are used to protect products distinguished by their novel shape or pattern. They are available for one-off items. The design itself must be new, although a one year grace period is allowed for test-marketing. Registration is not possible where the new form is dictated by function. The design is registrable either nationally or under an EU-wide single right. It can also be protected by copyright. The existence of concept of property is from the ancient period. This concept has a very broad history. There are many philosophies laid down by many thinkers like Bentham, Laski. These philosophies are very helpful in understanding the concept of property. The main finding was that the term property is defined in different ways in each Act as to its use. As in Sale of Goods Act, 1930 it is defined differently than in Benami Transactions (Prohibition) Act, 1988. In Transfer of Property Act which is a most important Act which deals with property does not have definition of the term property. There are many kinds of property as to it uses.
In today's era, not only the things which can be seen or touched but also the things which cannot be touched or seen come in the purview of property such as idea innovation, composition etc. These properties are known as intellectual property.
LawpreneurzDetails of lecture
|Lecture 1||Definition and Concept|
|Lecture 2||Specialties of the Act|
|Lecture 3||Codification of Law of Property|
|Lecture 4||Law relating to Transfer of Property|
|Lecture 5||Immovable Property|
|Lecture 6||Important Concepts|
|Lecture 7||Section 8 and 9 of the Act|
|Lecture 8||Illegal Restriction on Certain Alienation|
|Lecture 9||Creation of Interests|
|Lecture 10||Vested Interest|
|Lecture 11||Doctrine of Apportionment|
|Lecture 12||Transfer of Actionable Claims|
|Lecture 15||Doctrine of Election|
|Lecture 16||Sale of Immovable Property|
|Lecture 17||Leases of Immovable Property|
|Lecture 19||Transfer of Immovable property I & II|
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