MEANING AND DEFINITION OF PROPERTY

MEANING AND DEFINITION OF PROPERTY

Movable and Immovable Property

Property incorporates all rights of a person except his personal rights which constitutes his status in the society. The property can classify into movable and immovable properties. 

• Property: Movable and Immovable Property

Property has a wide degree and, along these lines, no thorough definition. The court completely expressed in Raichand v. Dattarya that property incorporates all rights of a person except his personal rights, which determine his status in society.

Property’s significance is not static; it changes with the reason, idea of an act, and new laws. Along these lines, as to guarantee that different choices, proposals, and any suggestions identified with property are appropriately made, first the property is classified into movable and immovable properties, and afterward, as per their separate laws, the related activity is attempted.

• Definition of Movable Property

• 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:

‘Moveable property’ includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.” 

In this manner, crops remain in the field and incorporate all the vegetables and natural products. They are considered as movable property since they must be utilized once they are served from the land. Additionally, the grass is by and large nourishment for dairy cattle, and consequently it is likewise considered as movable property.

Also, Timber is helpful for development of houses, yet for that, it must be cut and served from the land and afterward no one but it very well may be utilized, that is the reason it is considered as movable property. Then again, trees bearing natural products are helpful when they are established in the earth, and that is the reason they are viewed as 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. But things attached to the land may become movable property by severance from the earth. 

Transfer of Property Act does not define movable property, since it regulates transfer of immovable property by sale, mortgage, lease, gifts or through actionable claims.

• Definition of Immovable Property

• Section 3 of Transfer of Property Act defines “Immovable Property” does not include standing timber, growing crops or grass. Moving property includes standing timber, growing crops, and grass, according to this definition. 

• 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. 

• 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 nor grass.

Joining all the 3 definitions, immovable property can be summed as :-

i. Land

ii. Advantages emerging out of the land

iii. Things connected to the earth

iv. Things Embedded in earth

v. Things attached to what is embedded in the earth

vi. Things established in the earth, with the exception of: –

1. Standing timber,
2. Developing harvest
3. Grass.

Following on from the preceding points, it is commonly assumed that things found on the earth, as well as deep within the earth, such as minerals, are also immovable in nature.

• Important Case Laws dealing with Movable and Immovable Property

Since, the definitions of with movable and immovable property are not exact and have room for interpretation, thus various issues have arisen in past years regarding the kind of property.  It is right to enter another person’s property and to make some benefit from the soil. There are different points of reference that have been set by the court in acknowledging this concept. 

Some landmark cases that have been decided are: –

• The court held in Smt. Shantabai v. State of Bombay that the right to enter the land, cut and carry away wood for a period of 12 years is a benefit arising from land and thus immovable property.

• For the situation in Anand Bahera v. Province of Orissa, it was held that profit arising from land is movable property. The option to stroll on the land and to draw fish from the lake and remove them is immovable property, as it is the benefit emerging from the land. Grazing of cattle on the land is additionally immovable property as it is profit emerging from the land.

Idea of Annexation turns into an establishment for choosing an issue in cases including question of characterizing the property, if property lies on the land on its own weight, it is movable; however, if a thing cannot be expelled without causing significant harm to the land, it is viewed as having been implanted in interminability and must be treated as immovable property. The level of annexation is known by the intention and the timeframe for its use. As an example, while staying on a boat is movable property, the use of any nails and jolts is immovable property because they will most likely be used for a long time and will cause damage if severed.

• The above-mentioned concept is further elaborated in the case of Bamdev v. Manorma where it was held that the pieces of equipment are movable property and they simply don’t become immovable just because they are embedded in the earth. They are embedded in the gear for their enjoyment rather than the land. The cinema built is a temporary cinema, and the supplies and other supporting equipment will be fixed only until the mortgage exists.

• In Duncans Industries Ltd. v. State of UP, light was thrown on the intention of fixing equipment. It stated that a property is movable, or immovable based on the intention of the owner, whether they wanted to have the equipment permanently or temporarily. In this case, Company A decided to sell its fertilizers business to Company B. It included land and apparatus. The hardware that is installed in the earth is implanted there for long-term use. It is beyond the realm of imagination to expect to expel them without causing extreme harm to the land. Subsequently, it ought to be considered as unflinching property.

Following various judicial pronouncements, some of the judicially recognized immovable properties include: – 

• Right to collect rent for immovable property, hereditary office, right to ferry, right of fishery, equity of redemption, factory, building, walls, interest of mortgage in immovable property etc.

Judicially recognized movable properties include: 

• Government promissory notes, royalty, right of warship, decree of sale of a mortgaged property, standing timber, grass, growing crops etc.

Apart from the above-mentioned items, with time and development and changing perspectives on the bar and the bench, various items are included and excluded as needs be from the rundown of versatile and steadfast things. In the end, according to the need, circumstances, and purpose of the item, it is classified, and using the statute, an action is taken. However, to venture out characterization of movable and immovable property, the idea becomes one of extreme importance because, in the current times, it is only property, whether personal or proprietary, tangible or intangible, movable or immovable, that defines a person and his status.

Concept of Transfer of Property

Transfer of property is an “act by which a living person can conveys property”. The transfer of property act 1882 is an Indian legislation that governs and regulates the transfer of property in the Indian subcontinent. The act covers movable, immovable, tangible and intangible property. The Act deals with Sale, Mortgage, Lease, Exchange, and gift.

• Introduction to Concept of Transfer of Property

Transfer of property is an “act by which a living person can conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more or other living persons, and to transfer property is to perform such act.”

It was enacted on the 17th of February 1882 and officially came into force on the 1st of July 1882. The act covers movable and immovable, tangible and intangible (copyrights, trademarks and patents). The Act deals with the following kinds of transfers:

(1) Sale 

(2) Mortgage 

(3) Lease 

(5) Gift

• Essentials of a valid transfer 

1. It must be inter-vivos

Section 5 of the act stipulates that the transfer must be inter vivos. That is to say that the transfer must be made between living persons. Both the transferrer and the transferee must be living at the time of transfer. Living persons also include company, corporate or association.

2. The property must be transferable

Sections 6 lays down that the following transfers invalid.

1. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. Thus, if A is an heir to the estate of B, then, the estate thus becomes incapable of transfer.
2. A mere right of a re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. X grants the lease of a plot to Y for a period of 5 years. On the expiry of 5 years, X grants the right of re-entry along with the property to Z. The transfer is valid.
3. An easement cannot be transferred apart from the dominant heritage. Dominant Heritage means inheriting a right over another’s property without owning it. Thus, if M owns a piece of land and N has right of way over it. N has dominant heritage over M’s land and his land can’t be transferred apart from the dominant heritage.
4. An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. If A is a tenant at B’s house, he cannot transfer to C his right of enjoyment over B’s house.
5. A right to future maintenance, in whatsoever manner arising secured or determined, cannot be transferred. If A is entitled to future maintenance by B, she/he cannot transfer this entitlement to another, C.
6. A mere right to sue cannot be transferred. If H has the right to sue G over a contract, he may not transfer his right to sue to anybody else.
7. A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.
8. Stipends allowed to military, naval, air force and civil pensioners of the government and political pensions cannot be transferred, pension means a periodical allowances or stipend granted not in respect of any right of office but on account of part services of particular merits. Section 60 of CPC also exempts a pension from attachment in execution of degree against the pension holder.
9. No transfer can be made (1) in so far as it opposed to the nature of the interest affected thereby, or (2) for an in so far unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be a transferee.
10. Nothing in this section shall be deemed to authorise a tenant having an un transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, on the lessee of an estate, under the management of a court of wards to assign his interest such as such tenant farmer or lessee.

3. No transfer can be made

1. in so far as it is opposed to the nature of the interest affected thereby, or
2. for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or
3. to a person legally disqualified to be transferee; 
4. Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

4. Section 7 deals with persons competent to transfer:

Every person competent to contract under section 11 of the Indian contract act (i.e. he must be of sound mind, must not be disqualified in other words insolvent and alien enemy).

• Sadiq Ali Khan Vs. Jai kishore,1928. 

Privy Council observed that a deed executed by a minor was nullity. Principle of estoppel cannot be applied to a minor. A minor is not competent to transfer yet a transfer to a minor is valid. 

• Amina Bibi vs Saiyid Yousuf 1922.All. 449. 

In this case it was held that a contract made by lunatic is void under section 11 of the Indian Contract Act, and so also, transfer by him of his property is void.

• K Kamama Vs. Appana 

Under Section 11 of Hindu minority and guardianship Act, 1956 a defacto guardian is merely a manager and cannot dispose of minor’s property. In this case a defacto guardian sold property of a minor, the court declared the sale invalid.

Entitled to transferable property (a person who is the absolute owner of the property and is free from encumbrances can transfer the same) or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.

• Hussiaa Banu v. Shivanarayan

It was held that where one of the parties to a settlement gives up a claim to receive a certain sum of money from the other, in consideration of the latter’s given up the right to certain property claimed by him, it would amount to a transfer.

A transfer of property passes to the transferee all the interest which the transferor is then capable of passing in the property unless a different intention is expressed or implied. The transfer of a property creates a new interest for the transferee. If the transfer falls short of this criterion it may not be deemed to a valid transfer under the transfer of property act 1882.

Concept of Intangible Property

• Introduction to Intangible Property

John Locke believed that a person has a natural right to hold his property, especially the one which he got through his own labor.  “Property” brings the concept of ownership in mind which is a relation that a person shares with an object. Ownership is bunched with a lot of complex rights, duties as well as obligations. This concept has been intervened in our life and we cannot imagine our world without it. Our society has been deeply influenced by the concept of ownership. Now this ownership is not only of tangible objects but it also revolves around intangible objects. It holds no physical presence. It helps a person to hold ownership on the basis of their creativity like brands, identity, copyright, trademark or patent etc.

Let us consider an example a pharmaceutical company invents a medicine which is very effective to cure cancer. Now he can use his right that no other scientist may copy the medicine without the permission of original creator. This is right is known as intellectual property right. Due to industrial revolution and rapid development, there is an increased demand or knowledge of intellectual property rights regimes across countries. They deal with the artistic or scientific work which can be protected by providing us with 20 years patent or 10-year trade mark, 60-year copyright etc.

• Is Intangible Property Also Human Rights?

At the end of 19th century, the desirability of intellectual property right was not considered important but today in contrast they have created their own value in the market which comes with a lot of obligations. Thus, various new acts and bodies were formed such as “TRIPS” (trade related intellectual property, 1995) or “WIPO” (world intellectual property organization). Now with the growing technology awareness, human rights have also grown. Widespread recognition between human rights and IPR has gained a lot of importance.

After World War – II there has been a great upsurge for human rights treaties. These have brought a new age “age of rights” and “an era of humanitarians”, through UN intervention which play a significant role through “universal declaration of human rights”. This has given birth to international covenant on civil and political rights and international covenant on economics, social and cultural rights (article 17, UDHR). Thus, both human rights and IPR regimes have grown significantly and the intersection between them have expanded.

An example can be of an Australian man, where a manufacturer copied aboriginal designs of a carpet, without the permission of artist. The art work copied was very sacred and something that could only be witnessed during a special occasion and thus the court considered it as a violation of rights and thus asked the manufacturer to compensate the artist and the court also stated that copying a design was something that could be compensated with money but copying a sacred design that has also hurt the religious sentiments of the community and thus should be viewed from frame work of human rights because it is something very important for the survival of individual community.

• How Does Intangible Property Affect the Economic Aspect?

Intellectual property such as patent has always been a topic of controversy. There have been many doubts regarding its growth in country. But the only difference that prevails is its immobility and that even does not affect its management for development and this can be the reason it is called “the currency of knowledge economy”. When we try to analyze innovations through economic point of view it’s then we can justify the primary creation of IPR laws. IPR deals with the innovation, which allows people to explore more with the available resources, thus making innovation an important component through which economy can flourish.

During 1970, there was the creation of patent act which led to the promotion of industrial sector. The main aim behind this act was just not availability of rights to the inventors but also for the speedy development of technology in the country which could enhance the economic condition of the country. Before the TRIPS, Indian market was not able to flourish much due to lack of availability of such rights on various products like medicine. In India the major drug development was basically started by central drug research institute. They were supposed to get recognized by R&D but were not provided with the same because Indian markets lacked in reserving engineers and invent new drugs but when the TRIPS came into existence there came number of opportunities which enhanced the Indian economy by providing new market opportunities to invent. A survey was organized which proved Indian markets were flourishing by promoting IPR. In order to analyze IPR system that how the economy has been affected by its intervention.

Let us look at one of the company “Ranbaxy”. Ranbaxy is an Indian company that started in 1961 in Gurgaon, after IPR came into existence it has total sale of $1.03 billion and it has become the largest market in U.S., Brazil, Russia as well as China. Thus, the harmonization of IPR laws has opened new windows for innovation in developing countries like India.

• How Is It Emerging in India?

It is a limitation as well as an exception in fair dealing to the authors who create new things. This fair dealing helps to copy the available material but also leads to the infringement of rights. That is why fair dealing has been kept out of this intellectual property rights concept. Now this defense was made available through the doctrine of equity which has allowed people to copy new creations and one of the main reasons to follow this copyright was just because of the promotion of new work created by any inventor so that his work does not remain stagnant. It was just because of this doctrine that people could differentiate between moral intention of copying a work and dishonest intention of copying a work. That is the reason that this doctrine was added in TRIPS and all the member countries have to follow it.

The Indian and UK laws regarding copyright are considered to be limited and very strict because they do not allow much interruption whereas the laws in US are very open as they do allow easy additions in any work. Although India has developed a lot but it has still not been able to progress in the field of fair dealings. India as said has always been very strict towards the rules and thus even a single step of violation of law leads to infringement.

The best example of this is “Independent News Services Pvt. Ltd. v. Yashraj Filmsprivate Limited and Supercassetes Ltd.This whole case was about the defendant, “INDIA TV” which has shown a documentary regarding the life of a singer, his performance, his songs and clipping of his movies. As a result, the prosecutor filed a case of copyright infringement. However, the defendant party claimed that it was the fair use of their rights as they worked according to the fair dealings. So, the judges gave the judgment in the favor of plaintiff and defendant was restrained from using any music or any song or any movie clips as it would lead to infringement of law. This judgment signifies that there is a lot of need to look upon this concept of fair dealing to improve our system and loosen it up a little bit and understand the difference between good and wrong use of stuff to avoid let our country develop.