Aparna Venkatraman, 4th Year Law Student, TNNLU
Property is an integral part of human existence. Property has defined the wealth of a person since time immemorial and property rights have played a key role in evolution of civilisations.
Property is of two types – movable or immovable. Colloquially speaking, property refers to immovable property only. There are several ways in which property can be transferred. Alienation, sale, mortgage, lease, exchange, gift and testamentary are all methods by which property can be transferred.
Prior to the colonisation of India by the British, all the afore-mentioned types of transfers happened in the country in a purely customary manner, mostly based on religious tenets and beliefs. Thus, Hindus and Muslims had their own unique ways by which they dealt with transfer of property. The British were unable to understand the various customary practices that existed amongst different segments of the Indian population. Hence, they either applied the English concepts of dealing with transfer of property or they used the notions of justice, equity, and good conscience to Indian cases; both these approaches did not fully resonate with the native population, primarily because adoption of these principles often resulted in contrasting decisions and judgements.
After various deliberations and consultations in the Law Commission, a legislation was enacted in 1882 called the Transfer of Property Act, to bring about uniformity for dealing with issues concerning transfer of property in the country. Only transactions that involve living people were under the purview of this Act and accordingly, testamentary transfers were excluded from its purview.
This project intends to deal with this evolution of the law relating to transfer of property in India. This is an important topic to deal with, as property rights mean a lot to people and most of the disputes amongst people deal with property. As the law has evolved over time, understanding the past practices and the evolution of law over time, will provide great clarity in understanding this important aspect of a civil society.
Ever since man started evolving, from then on saw the creation and evolution of property. A man more or less always placed two things in his life as priority – life (that of himself and his near and dear ones) and his possessions. This has made the concept of property to be an integral part of human existence. Property has defined the wealth of a person since time immemorial as well. This evolution saw the concept of rights being attached to property, which has played a key role in evolution of civilisations.
The evolution of property has contributed significantly to the differentiation between movable and immovable property. This differentiation has also ultimately led to the colloquial terminology of property being referred to immovable property only.
EVOLUTION OF PROPERTY LAW WITH THE FOCUS ON TRANSFER OF PROPERTY ACT, 1882
The concept of property cannot be easily classified into movable or immovable property. When one owns a piece of land, what is on that land, as well as what is below it and under it belongs to him. So, if one owns an orchid, he owns the trees as well as the fruits that the trees provide. The fruits are definitely movable property, the trees are questionable. In the current example, they cannot be considered to be movable property and hence they are immovable property. This distinction with all the permutations and combinations that it includes, has been incorporated in the Transfer of Property Act, 1882.
Humans have produced diverse ways of not just owning property but also passing on the property. Initially, this was limited to pure inheritance. The sons and daughters would inherit the property when the parents died. Eventually the roots of patriarchy sunk in, which resulted in the sons inheriting the property from the father. This time also saw other diverse methods being devised for the transfer of property, such as – alienation, sale, mortgage, lease, exchange, gift, and so on and so forth. The Transfer of Property Act, 1882 deals with all the transactions that arise between living persons. This means that testamentary and intestate transfers are out of the ambit of the act.
INDIAN CUSTOMS AND THE TRANSFER OF PROPERTY ACT, 1882
India being a culturally diverse country saw a lot of customs playing a role in the manner of governance of property. These customs had religious backing in terms of Hinduism and Islam, for religion was the dominant force through which governance was streamlined. Prior to the British colonisation, the Indian subcontinent was governed by the Mughals. Upon the entry of the Mughals into the Indian subcontinent, they established an administrative system. The credit of this system goes mainly to Akbar, for he set up a system that all the prior kings were unable to do so. This was because, those kings were primarily focused on imposing laws as per Muslim laws, and thereby supressing Hinduism.
Upon Akbar ascending the throne, the Hindus were governed as per their laws, and the Muslims relied mostly on the Quran. Depending on the facts and circumstances of the case, other sources of law such as Hadiths, Qiyas and Ijma were used as well. The Mughals had three separate courts of law  – one, courts of religious law (this court was only for the Muslims and were presided by the Qazis, who helped the Muftis); two, courts of secular law (these were where the secular matters were dealt with to the extent of which that it was presided by the Governors, Faujdars and Kotwals; during Akbar’s reign, he had even appointed Brahmins for this role) and three political courts (here was the place where the offences against the state were dealt with, that is, the criminal offences, as per Muslim law). The courts of secular law comprised of the Panchayats as well. Most of the time, the panchayats resolved almost all of the conflicts within themselves, especially because the alternative was very severe.
The Transfer of Property Act explicitly states that the second chapter does not apply to Muslims. That is clearly an indication of how much Muslim law varies from this act. But, while this section does grant some leeway for Muslims, one has to keep in mind that this is only in the event of a dispute between the Muslim law and the Act. In the event of there being no difference between the two, then the Act applies proprio vigore.When the Act is insufficient as is Muslim law, then the Common Law Principles of justice, equity, and good conscience would apply .
For example, Sec 13 and 14 of this Act is about the Rule against Perpetuities, that is the rule that prohibits a property being transferred by the owner, long after the life of the said owner. This is allowed as perMuslim Law, for a Muslim can control the transfer of his/her property as long as it is to the benefit of his descendants, coupled with the fact that the benefit is eventually for the benefit of charities.As there is a clear contravention of secular law and Muslim law, Sec 2 applies and as a result of which, Muslim law is given more importance.
Another example for the same would be that of a gift. As per Muslim Law, there are three essentials that are to be fulfilled in order for a gift to be considered as complete – offer in public, acceptance, and delivery of possession. But the Transfer of Property Act, 1882 does not mandate delivery of possession, as per a landmark judgement . This contravention will also be dealt with as per Muslim Law.
This exception that is granted to Muslim Law, was initially granted to Hindu Law as well. But later through Act 20 of 1929, this exception was removed. This is not to say that there were no differences between Hindu Law and the Transfer of Property Act, 1882. This change was made because the differences were incorporated into this Act, by virtue of legislative amendments and judicial pronouncements. The major changes were two – one with regard to the transfers made to an unborn person (person not born or conceived at the time of the transfer) and two, with regard to Sec 15 and 16 of the Act prior to the amendment.
With regard to an unborn person, there was a conflict of laws and judicial decisions. This Act and the infamous case of Tagore v. Tagore had declared a transfer or bequest to unborn persons wholly void, whereas the Hindu Disposition of Property Act, 1916 and two other legislations had validated the same. The amendment of 1929 put a rest to this dispute by ensuring that the relevant sections of the aforementioned 3 legislations was subject to the Transfer of Property Act, 1882. Subsequently, the Indian Succession Act, in so far as it deals with the same, was also amended to say that a person’s will cannot be declared to be invalid by virtue of a clause that deems that his property would be bequeathed to an unborn person.
The Act prior to the amendment, held that in the event of a transfer made to a class and that it fails because of the remoteness of some people of the class, then the entire transfer would not succeed. As this is clearly got nothing to do with Hindu Law, the sections have been amended.
The Hindu Law had provided the Rule of Damdupat. This rule states that, at any point of time, interest cannot be received, which is beyond the principal amount. This is inapplicable for mortgages, as per the Madras High Court. But, the Bombay and Calcutta High Courts have decided otherwise . The 1929 amendment did not provide for any clarity on the matter.
There was a mention in Sec 2 of the Transfer of Property Act, 1882 that it would not apply to the Buddhists as well, but the 1929 amendment has removed the same.
HOW THE TRANSFER OF PROPERTY ACT, 1882 CAME TO EXISTENCE
The Transfer of Property Act, was purely a result of the British Administration, wanting to make things easier for themselves when they were ruling India.The one thing that we can see from the actions of the British is that they sought for uniformity, that is, they were unable to accept the diversity that India was, and hence tried to implement one law for every issue that they felt. In the same manner, they tried to implement one law that governs everything regarding the transfer of property. Initially they allowed for personal laws to affect the said legislation, through Sec 2. If there was a litigation that was on a subject matter not within the scope of thisAct or the personal laws, then the Courts would use the principles of justice, equity, and good conscience. These principles were applied before the Act was enacted as well. But the major problem with regard to the usage of these principles is the fact that it did not fully resonate with the native population, primarily because adoption of these principles often resulted in contrasting decisions and judgements. A modified version of the English Property Law was also tried, with little to no avail.
This Act is a pioneer, for such a law was under the purview of the Queen of England, when she appointed a Law Commission of India. This was not the subject matter, that the Queen wanted laws on – in fact, she ensured that major civil matters had laws as well. The First Law Commission in India was set up in1834, under the Charter of 1833, whose Chairperson was Lord Macaulay . When the initial draft Bill, which was made by the Commission in 1870, was presented to the Legislature Assembly in 1877, that Assembly referred the same to a select committee, for the sole purpose of checking and suggesting changes, if any. Upon receiving suggestions, the Bill was amended accordingly and sent to the Second Commission. After a lot of deliberations, the Act came into force on the 1st of July 1882.
This Act was more or less the English Law, modified for the benefit of the Indians, to allow for exercise of the customary practices. But, the Act was still not very well drafted as visible from the conflicting judicial decisions that the Courts produced. This led to this law facing twelve amending Acts in a short frame of time. This seemed to not be the solution, for there were still various confusions that were not getting addressed. Addressing some of the confusions led to unravelling some of the closed chapters in the form of problems. This resulted in the Amending Act finally being passed in 1929, which amended not only this Act, but also the other similar Acts that were on the same subject matter of property transfers. Some of the disputes that were addressed have been mentioned above.
To summarise, ownership of property has been an integral part of civilisations all over the world and India is no exception. India has accepted and respected property ownership from time immemorial. Ownership implies a right to transfer, which has also been recognised over time. However, since the country is diverse and consisted of multiple kingdoms, with different practices arising on account of language, evolution, religion, etc., there were different principles adopted with regard to property ownership and transfer. The British tried to develop a somewhat homogeneous law relating to property and that gave rise to the Transfer of Property Act. However, with sharp differences in practice in various parts of the country, this legislation required several amendments before it settled down into some kind of a reasonably uniform law. The Act still contained some provisions to recognise and account for some key differences in personal laws relating to Hindus and Muslims, but subject to these differences, the law relating to transfer of property was largely harmonised and made uniform.
Sec 3 and Sec 6, Transfer of Property Act, 1882 read together
Sec 7, Transfer of Property Act, 1882
Akbar and the Era of Multi – Religious Empire, PUBLISHYOURARTICLES, (Mar. 22, 5:30 PM)http://www.publishyourarticles.org/knowledge-hub/history/akbar-and-the-era-of-multi-religiousempire.html
Get Complete Information on the Judicial Administration of the Mughal Empire, PRESERVE YOUR ARTICLES, (Mar. 22, 5:30 PM)http://www.preservearticles.com/2012041030124/get-complete-information-on-thejudicial-administration-of-mughal-empire.html
Sec 2, Transfer of Property Act, 1882
Mulla, The Transfer of Property (ed. Solil Paul) ninth edn., p.xi.
Muhammad Raza v Abbas Bandi Bibi 59 IA 236, (1932) All LJ 709, 34 Bom LR 1048, 63 Mad LJ 180, 137 IC 321, AIR 1932 PC 158.
See the Wakf Validating Act 1913, to which retrospective effect was given by the Musalman Wakf Validating Act 1930.
Renikuntla Rajamma v. K Sarvanamma
(1872) 9 Beng LR 37.
Mulla, The Transfer of Property (ed. Solil Paul) ninth edn., p.10.
Madhwa v. Venkata (1903) ILR 26 Mad 662
Jeewanbhai v. Manordas (1911) ILR 35 Bom 199
Early Beginnings, LAW COMMISSION OF INDIA, (Mar. 22, 5:30 PM) http://www.lawcommissionofindia.nic.in/main.htm#a1