Is Property law exhaustive in nature?

Introduction

The territorial jurisdiction of the transfer of property Act, 1882, extends to the whole of India except Punjab. But this Act was not enforced throughout the country at one stretch; it was made applicable in different parts of India from time to time at different stages. This act came into force on the first of July 1882. The purpose of the Act is to defined and ‘certain’ parts of the Law of transfer of property. The scope of this Act is limited. The nature of property law is not exhaustive or complete because:

  • It applies only to transfer by the act of parties, not by operation of law. Also, this Act deals with a transfer of property inter vivos, i.e., a transfer between living persons.
  • It contains the transfer of both movable and immovable property but a major portion of the act is applicable to the transfers of immovable properties only. The Act provides a clear, systematic demarcation and uniform law for the transfer of immovable property.
  • The Act is not exhaustive in nature. And it provides scope to apply the principles of Justice, Equity, and Good Conscience if a particular case is not governed by any provision of law.
  • In case of a conflict between the TP Act, 1882, and rules of Muslim Law, the latter will prevail. Section 2 of the Act does not affect the rules of Muslim Law. Thus, a settlement made in perpetuity for the benefit of descendants of the settler is a valid wakf (charitable gift) wherein there is an ultimate gift in favor of a charity.
  • Certain incidents of a contract or the essential nature of property are exemption from the operation of the Act by Section 2. The Act also saves certain property rights. For example, the right to partition of immovable property is an incident of the property but this right is not affected by the provisions of the TP Act, 1882.
  • Transfer of Property Act is not applicable to Public Charitable Trust.
  • Transfer of Property Act does not apply to the Transfer of Property by an award.
  • TP Act does not apply to the creation of easements.
  • TP Act is not an exhaustive law on the subject. It is not exhaustive of the law of Mortgages; Sec.60 does not contain all instances of severance of mortgages that may be conceived and allowed.
  • Sec.4 of the TP Act makes it clear that all such provisions of the TP Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, if there is any provision or word in the Transfer of Property Act which relates to contracts, the meaning of the provision or word shall be the same as given in the Indian Contract Act. For example, the word “consideration” as used in the Transfer of Property Act shall be given the same meaning as laid down in Section 2(d) of the Contract Act. Although the law of Contract may be part of the transfer of property a completed transfer of property cannot be rescinded under Section 39of the Indian Contract Act.
  • The second paragraph of Section 4 provides that Sections 54 (2, 3), 59, 107, and 123 shall be read as a supplement to the Indian Registration Act, 1908. It may be noted that the above-mentioned sections of the TP Act provide for the registration of documents under which these transfers are being made.
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For example: in the case of sale of immovable property of the value exceeding one hundred rupees or in the case of mortgage, lease, and gift of immovable property, it is provided that the transfers are to be made through the registered document.

Conclusion:

There are various kinds of property and various modes to transfer the property. The Act does not incorporate rules for all modes of transfer in existence. The Act does not even claim to be a complete code as apparent from the omission of the term ‘consolidate’ from its Preamble. The Act outlines transfers of property by act of parties like sales of immovable property, mortgages and charges, leases of immovable property, exchanges, gifts, and actionable claims.

Author: Sonali Gorai,
Adamas University/ 3rd Year/ Perusing BALLB(H)

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