HISTORY OF TRANSFER OF PROPERTY ACT

INTRODUCTION

Key features of Transfer of Property Act

OBJECTIVE

    There are different types of transfer recognized by law. We may know those are like sale, mortgage, lease, exchange gift and actionable claim. 

Under the Indian legal system, properties are divided into two categories – movable and immovable. 

The Transfer of Property Act (ToPA), 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings

The act of transfer may be done in the present or for the future. The person may include an individual, company or association or body of individuals and any kind of property may be transferred, including transfer of immovable property.

Last Attempt: Krishna pleading Dhritarashtra to give Pandavas a percentage of land, negotiations went from half the kingdom to 5 villages, which is failed and war is inevitable.

PRE-HISTORY

    Historically in our ancient mythology, the accounts for property recorded. Rift between wives of Krishna (Bama and Rukmini) for the Parijatham tree. Great Mahabharata war was due to the unpresented half of the kingdom to Pandavas.

VEDIC PERIOD

As per the puranas, Land is a common ownership. Land was considered to be the gift of nature and no person in particular owned it. Either create, abduct or barter system was taken place, in case of properties.  Unlikely there is no idea of gifting to any one, this has been observed in “Shatapatha Brahmana” and in the Mahabharata, “that land must not given away even on the plea of a sacrificial fee.”

POST-VEDIC PERIOD

 In the post vedic period, land was no longer the common property and private ownership of land gradually being established. Practice of land grant was started. In the tribal setup of period of Rig Veda, (i.e., 1500 BCE) there was a setup that group of tribal men go for hunt and group should be divided with into equal amount of land, even tribal chief should not exert his powers. Atharva veda noted, Lord Indra was also to give the king’s share (Bhaga) in the village.

According to Manusmrithi, “Land belongs to him who first cleared the timber and deer to him who first wounded it”, land belongs to labour who made it cultivable. 

MEDIEVAL PERIOD

    Landlords came under the sovereignty of kings Kosala and Magadha kingdom. Kingdom and landholdings integrated which helped to thrive the economy. After Alexandar’s departure, Maurya initiated the Revenue collection. There are numerous stringent measures taken account where we found in Arthasastra about land holdings, construction of buildings, purpose of toll, tax collection, warehouses, shipyards and mines.

    Relationship between kings’ intermediaries and peasants got increased, taxes were collected, the lands were given to owners in copper plates as an contract/agreement to represent as owner of the land. 

Allaudin Khalji

Delhi Sultanates: Delhi Sultanate from Alauddin Khalji implemented major 

reforms of major fiscal, land and agrarian reforms.

• Collecting taxes for army

• Large tract of fertile land under kingdom.

• Confiscating private lands

Land Reforms by Sher Shah Suri

During Akbar’s period, he introduced

    • Territorial divisions

    • Land measurements (per Bigha)

    • Type of land (Polaj, Parauti, Mahsul, Chachar and Banjar)

Division of land, measurements, type, territorial during Akbar's period

BRITISH PERIOD

1857 Sepoy Mutiny

    By 17th century East India Company’s conquest from Madras to Bengal and various territories made British to control India by Taxes, revenues. Land went to the control and Taxes and its revenues were collected, there are huge documentation created and followed no rightful process were defined. 

    After 1857, Sepoy mutiny Crown took absolute power and started administering India. Hence permanent settlement & colonial administration started. Raiyatwari and Zamindari system in place to identify the owners of land and collecting the taxes. Rent laws, appointing the middlemen to collect taxes, salaries paid to the lip services. 

Peasant Movement

        By 1859, well organized Agrarian League was formed, Zamindars were challenged in court. Rent law commission formed in 1880, Act of 1885 Tenancy act increases to 12.5% for 15 years.

In debate of ownership right and tax fixation questioned the legal system and land transfers. In 1875, there was a rift between, money lenders and peasants occurred in Poona and Ahmedabad, while the documentation were torn and money lenders to become the owners of the land. Land transfers occurred when substantial loss for peasantry. 

There was a social unrest during British rule, borrowers became vulnerable, excessive rates of interest imposed and clarified through backdoors. Transfer of property without a document is a fatal boon. 

In aspects of transferring the actionable claims and effects of transfer, buyer to pay the incidental expenses for the same. This term is coined by Mr. Whitley Stokes. Hence Transfer of Property act, 1882 born.

NATURE, PHILOSOPHICAL & CONSTITUTION

According to Locke, “right to property as man’s supreme natural right and a limitator upon the state.”

In 1302, John of Paris argued that “there was nothing wrong in their owning property”

Similarly, Mahabharat states that, “Enjoying all pleasures by wealth”

By the Constitution of India, as a fundamental right under Articles 19(10(f) and 31, Right to property has been mentioned in Part III to article 300A deals with the acquisition of property.

SUMMARY

    Through Vedic periods from Mahabharata, Arthashastra, Rig Vedas we found that property has values with the owner, it is divided but not owned. By Moghuls time, lands, taxes, revenues, formation of types of lands were formed.

    By British period, we found after East India company, permanent settlement 1857 sepoy mutiny, peasant’s movement made huge impact on administering the properties. For administering the lands, documenting, passing laws, to have separate process with course of transferring property 1882, Transfer of property born. Along with that we could see, definitions of Movable, Immovable, Act of parties, Mortgage, Leases, Exchanges, Actionable claims, Gifts were got the Acts and sections.

References:

    1. Transfer of Property Act, 1882

    2. Legislation of the British Empire, 1900

    3. Roof and floor.com (https://roofandfloor.thehindu.com/real-estate-blog/primer-on-land-laws-india/)

    4. Transfer of Property Act (TOPA)(TPA), by Npradhan

    5. The Indian law.in, Land Tenure System in Ancient India, Land Tenure system in medieval India

    6. Arjun Jaiswal, The last Adharma

    7. Mahabharata, Udyoga Parva, Vidhura Niti, Sanjaya yana

    8. Law commission of India, 157th report on The Transfer of Property act, 1882 and its amendment.