Meaning of property

In general sense, a property which renders the value to the person who has the possession with property  either tangible or intangible, movable or immovable can be termed as property
But in legal sense, the term property means right of possession, right to sale, right to lease, right to title in an definite manner to be executed is called property

concept of property

The term property was derived from french word proprietary which means things owned.
Property consists of land, building, car, shares,..etc
Physical Property (corpus) Tangible property : property which we experience through our bodily senses like car or a building
Intellectual Property (mental) Intangible Property : Non- physical assets like trademark, stocks or patents  

Kinds of Property

Movable Property : Sec.3 (36) of the General clauses act,1897 defines movable property as property of every description except immovable property 

under sec. 2(9) of registration act, 1908 defines movable property includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.

under sec. 22 of IPC defines 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.

Immovable Property : Sec. 3 of Transfer of property act, immovable property does not include standing timber, growing crops or grass 

under Sec. 3(26) of general clauses act,1897 defines as immovable property as which include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth, but is also not exhaustive.

under Sec. 2(6) of registration act, 1908 defines as immovable property includes land, building, hereditary allowances, rights of ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops or grass, this definition extends to whole of india, except state of J&k is comprehensive.

any rights in or with respect to any land or any building  or part of building which has been constructed or which is to be constructed, accruing or arising from any transaction, which means rights which are associated with the land or building weather constructed or to be constructed except the transaction of sale, lease can be termed as immovable property 

A right to collect rent, life interest in the income of immovable property, right of way, ferry, fishery, a lease of land

B. Tangible and Intangible property

Tangible Property : Property which we experience through our bodily senses like touch or felt.., or generally be moved

property such as land, furnitures, clothing or household goods 

Intangible Property : this refers to personally property but cannot be moved or touch or felt, but which attains certain value such as securities, bonds or economic services

C. Intellectual Property

Intellectual property never fall under the tangible category, but there are many other forms of intangible property where these intellectual property posses the proprietary rights which are recognized and protected by fields of law, the term intellectual itself denotes that these property is not mere a physical property but which are related to the creation of human mind or wisdom

under intellectual property law, intangible assets, such as musical, literary, artistic works, discoveries and inventions, words, symbols and designs can be termed intellectual property and posses rights to their owners

Categories of Intellectual Property 

there are 4 main categories of Intellectual Property 

Patent

patent is an intellectual property right given for the inventors for their inventions, such invention is not obvious in light or in the public domain or has not been disclosed anywhere during the time of the registration for patent application.patent are registrable nationally and are enforced by court proceedings, a patent once obtained shall be in force for 20 years

Trade Marks

trade mark is a symbol used to distinguish products from its competitor. A Trade mark is known as identity for the brand or product. Trade mark can be registered nationally or internationally, such registered trade marks can be enforced by court and injuctions or damages are be available. An unregistered trade mark can also be enforced in court if used by similar competitor in a said field

Copyright

copy right is to protect the creative works of author, unlike trade marks the copy right can be registered for symbol. A copy right can be registered for sound recordings, films and broadcasts. The purchase of such copy righted works cannot confer right to copy

Generally there cannot scope for registration of copy right, the copy right give arise upon creation. these copy rights are legally enforceable.

Design Registration

design registration is to protect and distinguish the products by their shape or pattern. These design registration can be also protected by copy right and allowed a one year grace period for test marketing.

Transfer of Property

Sections 5 to 9 of the transfer of property act, 1882 defines about the transfer of property.

According to sec. 5 of this act defines that an act by which a living person (company or association or body if individuals) conveys property, in present of future, to one or more other living persons, or to himself and one or more other living persons, and to transfer property is to perform such act.

In accordance with this section – 5 aspects were given in respect to transfer of property, 3 aspects with convey to title – sale, gift and exchange and 2 aspects regarding to limited interest – mortgage and lease. Here the transfer must be between the living person or persons and company or body if individuals whether registered or not registered in the present or future.

Transferable :

What may be Transferred 

According sec.6 of this act,1882 deals with property of any kind may be transferred

Non- Transferable :

What may not be Transferred

There are 10 exceptions of the sec.6 of the act, 1882 which may not be transferred i.e.., explained in sec.6 from clause a to i

1. Spes Successionis : spes successionis is a latin pharse which means the hope or expectation of legal heir to succeed to the property of deceased. such spes successionis is invalid and hence can’t be transferred under sec.6(a)

In a eagle view of the section, expectancy does not amount to the interest in the property and can’t be made subject matter of a transfer.

2. Re-entry : clause b of sec.6 of this act defines that right of re-entry can’t be transferred, a right to re-entry means to right to resume possession that means when a person gives a possession of his property to another for a certain period, such gaining the possession back is termed as right to re-entry and such transfer of property is invalid. The fact is that breach of covenant for such transfer stands valid.

3. Easement : clause c of sec.6 of this act defines that easement can’t be transferred dominant heritage. In simple words, easement means use or enjoyment of one’s land without possession. For example, celebration of festivals like diwali, moharram on others’ land does not result in transfer of property.

4. Restricted Interest : clause d of sec.6 of this act defines that can’t be transferred, meaning if A lends his property for his personal use to B, then B can’t transfer the property to some else because the A lends to B for personal use only (Restricted Interest). Transfer of such property hits the provisions of sec.6(d) and such transfer stands void. In order to make such transfer valid, the restriction must be made void under sec.10.

5. Right to Maintenance : clause dd of sec.6 of this act stated that right to maintenance is solely a personal benefit of a person to whom it was granted and can’t made be transferable, this clause was induced by the Amendment act, 1929. If the interest of land was assigned to hindu window for her maintenance can’t be said as property but if the same was assigned to her in lieu of her maintenance then can be termed as property.

6. Right to Sue : clause e of sec.6 stated that mere right of sue can’t be transferred. for instance, breach of contract by one party cannot be transferred to others.

7. Public Office and salary : clause f of sec.6 defines that public offices cannot be transferred as the public officers are obligated to discharge their duties and in return salaries was paid, such public offices are assigned only to discharge their duties and hence can’t be made subject matter of transfer.

8. Stipends : clause g of sec.6 states that stipends allowed to military, naval, airforce and civil pensioners of government can’t be transferred.

9. Unlawful Object or Consideration : clause h of sec.6 stated that no transfer can be made lawful unless a valid object or consideration made, the scope of transfer must be bid the provisions said under sec.23 of indian contract act, 1872. To Validate the transfer, Transferor must not be forbidden by the law.

10. Interest of farmers, tenants and lessees : clause i of sec.6 defines that interest of farmers, tenants and lessees are inalienable and untransferable on scope of public policy.

Who can transfer

section 7 of the act defines that every person competent to transfer property if he is competent to enter contract and is either entitled to transfer property, or is entitled to dispose the property, either wholly or in part of his own.

as per this section, the person must be competent to contract, must attain the age of majority, be sound mind and must not be forbidden by the law.

Operation of transfer

Section 8 enumerates that unless a specified intention is expressed or implied, transfer of property passes to transferee, that means by transferring property we also transfer legal incidents, which may or may be expressed in writing.

For Instance, when transfer occurs legal incidents are made subject matter of transfer which may not be expressed,

Land when transfer takes effect – Legal Incidents like Easement, rent and profits and all things attached to the earth.

House when transfer takes effect – Legal incidents like easement the rent accruing after transfer, locks, keys, doors and other things.

Machinery attached to earth – Legal incidents like movable part of machinery

debt – Securities

Money – Interest or income accruing after the transfer takes effect.

Mode of Transfer

For validity of transfer, a prescribed manner or form is so required by law to execute the transfer. i.e.., To validate a transfer, expressed in writing which may not be required as by the law

Oral Transfer

Section 9 of this act stated that all modes of transfer are permitted unless there is a prohibition specified against it, In certain circumstances the writing is made compulsory and also registration in the case of actionable claims. The following cases writing was made compulsory :

(i) Sale of tangible immovable property of value of Rs. 100 or above (sec.54)

(ii) Sale of reversion or other intangible things (sec.54)

(iii) Simple Mortgage (Principal is Rs. 100 or above) (sec.59)

(iv) a lease from year to year or for any term exceeding one year or reserving a yearly rent (sec.107)

(v) any gift of immovable property (sec.123)

(vi) exchange, subject to said rule for sale (sec.118)

(vii) transfer of actionable claims

(viii) transfer of any interest of immovable property.

Conditional Transfer

Section of 25 of Transfer of Property act, 1882 deals with conditional transfer means, transfer of property upon fulfilment of condition, such conditions must not be impossible, or forbidden by law and must not oppose to public policy or fraudulent conditions. Conditions must be lawful, possible and must bid to public policy.

Void Conditions

Section 10 defines that prohibits conditions that completely restrict the transferee or their successors from transferring or disposing of their interest in the property. Such conditions are generally void, except in specific cases like leases and married woman.

Condition Precedent

sec. 25 to 26 deals with condition precedent. Condition Precedent takes effect prior to the transfer of property occurs, such precedent conditions need to fulfilled for transfer effect.

Sec.26 of this act defines that where the terms of transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed have been fulfilled if it has been substantially complied with. 

For instance, 

A transfers Rs. 5000 to B on condition that he shall marry A’s sister with consent of C. B marries with consent of C. Here B have fulfilled the condition.

A transfers Rs. 5000 to B on condition that he shall marry A’s sister with consent of C. B marries without consent of C. Here B have not fulfilled the condition.

Condition Subsequent

Sec. 29 deals with condition subsequent, transfer of property takes effect when the condition is strictly fulfilled.

In essence, a condition subsequent in the context of the Transfer of Property Act is a clause that can undo a property transfer if a specific event happens after the transfer has taken place.

For instance, 

A transfers Rs. 5000 to B, to be paid to him if he marry A’s sister on attaining his majority, if B marries someone else, then B fails to fulfil the condition and hence Rs. 5000 will not be transferred.

Vested Interest

Sec. 19 of this act defines that interest of the property created for the benefit of the person without specifying the time that takes effect, or the terms that takes effect or happening of an event which must happen, such interest is called vested interest.

For Instance,

If A transfers property to B, but specifies that B will only be entitled to possess the property upon reaching the age of 25, B has a vested interest in the property. Although B cannot currently possess the property, the right to future possession is guaranteed and cannot be taken away.

Contingent Interest

sec. 21 of this act defines that interest of property created for the benefit of the person takes effect happening of future uncertain events or not happening of uncertain events, such interest is called contingent interest.

For Instance,

If A transfers property to B, but specifies that B will only inherit the property if B marries before the age of 30, B has a contingent interest in the property. The inheritance is contingent upon B getting married before 30. If B remains unmarried, the contingent interest will not vest, and B will not inherit the property.

Transfer to unborn person

Sec.13 enumerates that transfer to unborn child stands void, but the transfer of property or interest created for the benefit of unborn child (child in womb) stands valid. Transfer of property or interest so created for such in-existence of person shall be executed through the mechanism of trust i.e.., prior interest and absolute interest, then the person shall possess such benefits once comes into existence.

The primary aspect is that whether the said country considers the child in womb as person, if such prevails in the said country then the transfer stands valid. If not void.

As stated in sec.13 that transfer or interest created for the benefit of unborn child (child in womb), the same principal mentioned in sec.14, but under sec.14 the word ‘child not in womb’ was used.

Under sec.14, the child must be born prior of expiry of last or prior estate. The interest can be created in favour of child (not in womb) as follows :

(i) mechanism of sec.13

(ii) Conditions of sec.14

Both these rules need to be satisfied to a valid transfer

In both the sections 13 & 14, the transfer or interest created can be indirectly conveyed.