PROPERTÝ LAW AND EASEMENT

S.P. Law Classes, Pune. Page : 5 (Class) 25510256, (Res) 26333908.

Prof. Pathan s
MODULE -01
1 CONCEPTS, MEANINGAND TYPES OFPROPERTIES
(SECTIONS 1 T04 OFTHE T.P. ACT, 1882)

1. MEANING OF PROPERTY

Dtn. What is meaning ofproperty and its subject matters ?

1. INTRODUCTION
The concept of property occupies an important place in human right because it is practically
impossible to live withoutthe use of materialobjects which constitute the subject matter ofproperty.
In its widest sense, all animate or inanimate things belonging to a person are included in the terms of
property.The concept ofproperty and ownership are very closely related to each other. Property and
ownership are mutually independent and co-relative. There can be no property without ownership and
ownership without property. In modern times property is used in wider sense to include all the rights
which aperson has. Thus, aperson s life, liberty, reputation and all other claims which he might have
against other persons, is his property.
2. MEANING OF PROPERTY
In a limited sense, property covers only a person s proprietary rights as opposed to his personal
rights. Thus, land, chattels, shares and debts due to him constitute his property. In yet another sense,
property includes only those rights which are proprietary rights in rem, e.g., patents,copyright. But a
debt or benefit of a contract are not included within the term property in this sense.
The subject-matter of the law ofproperty is proprietary rights in rem while the subject-matter
of law of obligation is proprietary right in personam.
3. APPLICATIONS OF PROPERTY -
Salmond observes that the term property may have a variety of application but in legal terms it
refers to the following
a) All legal rights -
It includes a person s legal rights of whatever description. This ordinarily implies
complete ownership of all things-material as well as incorporeal.
b) Proprietary rights
Itincludes not all rights, but only a man s proprietary rights as
rights. opposed to his personal
c) Corporeal property -
In this sense, property includes nothing more than
corporeal things i.e. right of ownership
in am¡terial object such as land, horse, watch, etc.
 (Class) 25510256, (Res) 26333908.
PROPERTYLAWANDEASEMENT
Pune. Page : 6
S.P. Law Classes, AND
Prof. Pathan s
OFPROPERTY- MOVABLEAND IMMOVABLE,TANGIBLE
2. KINDS REALANDPERSONAL
INTANGIBLE, EXISTINGAND FUTURE,

DEFINITION OF IMMOVABLE PROPERTY: Act unless

property. It provides, in this
S.3 of T.P. Act, 1882 defines the term imtnovable
-
there is something repugnant in the subject or context ,growing crops orgrass.
Immovable property oes not include standing timber
exhaustive. It simply says:
The definition of, immovable property,given in this section is not
or grass. The definition of
immovable property does not include standing timnber growing crops exhaustive. That definition
not
immovable property in the General ClausesAct, 1897 S.3(26) is also
is as follows:
attached to the
Immovable property shall include land, benefits to arise out ofland, and things
earth, or permanently fastened to anything attached to the earth.
The definition of immovable property in the General Clauses Act, 1897 applies to Tránsfer of
Property Act. The Transfer of Property Act, exclude certain things while General Clauses Act, includes
certain things in the definition of immovable property. If we read boththe definition thei the term
immovable property includes i) land, ii) benefit to arise out of land, i) things attached to the earth;
except standing timbcrs growing crops and grass.
The definition ofimmovableproperty ws3 ofIndian Registration Act, 1908 is more adequate
and appropriate which reads as under -
Immovable Property includes lands, buildings, hereditary allowances, rights to ways, lights,
ferries,fisheries, or any other benefits to arise out of land and thing attached to earth, but does not
include standing timber, growing crops or grass.
The definition of immovable property given under this three statutes give no guidance as to
what is mneant by, attached and permanently fastened.
Let see various aspects in the definitions
a) Land-The term land includes the following elements -
It determinate portion of the surface of the earth,
ii) the ground beneath the surface,
iii) all objects which are on or under the surface in its
nátural states including
minerals, lakes, ponds and rivers within its boundary,
iv) allobjects placed by human agency on or under the surface,
with intention of
permanent annexation including thereby buildings, walls and fences.
b) Benefits to arise out of land -
Every benefit arising out of
also regarded as immnovableimmovable
property.
property and every interest in such property 1s
The
benefit to arising out of land, heredity Indian Registration Act, expressly includes
fisheries. In the definition of immovableallowances,Aright of way, lights, ferries and
property. debt secured by a mortgage o
immovable property is an interest in the land, is, therefore, regarded as
property. Theright to collect lac from trees, a right
place or house ar instances
immovable
to take minerals, rent fom
ofbenefits to arise out of land market
property. hence, regarded as immovable
 PROPERÍY LAW AND BASEMENT

26333908,
Page : 7 9 (Class) 25510256, (Res)
Prof. Pathan s S.P. LAw Classes, Pune.
Things attached to earth -includes -
The term, attached to carth It includes such things as a trees or shrubs
as
Things rooted in the earth -
i) becomes movable property. If
cut-off
standing timbers. Trees and shrubs once
intention is to use themfor the purpos of enjoying their fruits, they will be
the
regarded as immovable property. includes houses and buildings. An anchor
ii) Things imbedded in the earth It immovable property. Thus, what is
imbedded in the land to hold a ship is not
of each case. Things imbeddei
imbedded in earth depends upon the circumstances
enjoyment of that thing to which it is
must be for the permanent beneficial house are attached to the house for
attached e.g. the doors and windows of the
permanent enjoyment of the house degree, manner, extent and
Chattel attached to the earth or building - The
ii) building, are the main features
strength of attachment of the chattel to the earth or
attached to earth or building
to be regarded. It may be a movable property are regarded as severable
iv) Standing timbers, growing crops, grass - Thesethey are not included in the
therefore
from the land on which they stand, and,
term immovable property.
JUDICIALLY:
3. INGREDIENTS OF IMMOVABLE PROPERTY RECOGNISED
property -
The following have been judicially recognised asimmovable
a) Right to collect rent of immovable property,
b) Right to collect dues from a fair on a piece of land,
Aright of ferry,
d) Aright of way,
e) Aright offishery, i.e, the right to catch andcarry away the fish,
f) Adebt secured by mnortgage of immovable property,
Hereditary offices,
h Right to receive future rents and profits of land,
i) The equity of redemption,
Reversion in property leased,
k) The interest of a mortgagee in immovable property,
1) The right to collect lac from trees,
m) A factory.
But the following are not immovable property
a) Right of worship,
b) Aroyalty,
c) Adecree for sale of immovable property,
d) A decree for arrears of rent,
e) A right to recover maintenance allowance,
f) Amachinery, which is not permanently attached to the earth,
g) Government promissory notes,
h) Standing timber, growing crops and grass.
 PROPERTY LAWAND EASEMENT

Pune. Page : 8 .o(Class) 25510256, (Res) 26333908.

Prof. Pathan, s S.P. Law:Classes,
4) CASE LAW: -
a) PerumalV's. Ramaswami, AIR 1969 Mad. 346. -Court held that the attachment of oil engine
drto earth is a fixture, is for the beneficial enjoyment of the engine itself and in order to use
engine, it has to be attached to the earthand attachment lasts only so long as the engine is used.
When it is not used it can be detached and shifted to some other place. The attachment in such
case does not make the engine part of the land and hence not immovable property.
b) Shantabi Vs. State of Bombay,AIR 1958 S.C. 532, -Things rooted in the earth include such
ethings as trees and shrubs, but where such trees 'constitute standing timber they are not
immovable property. But if the intention is to cut then down sooner or later for the purpose of
utilizing the wood for building or other industrial purposes,they would be timber and would
accordingly be regarded as movable property.ethstl noh tionse
c) Shiv Dayal V's. Patu Lal AIR 1933 Al.50, -The Court held that a mortgage with
ofa fruit bearing tree with the inténtion that the mortgagee is to enjoy the fruit butpossession
not to fel1l
the tree, is a mortgage ofimmovable property. o 9ronteto he
d) Sukry Kurdepa Vs. Goondakull, 1872. - In this case Justice Holloway of Madras High Court
explained the distinction between movable and imnovable property. Ifa
its place without injury to thë quality by virtue of which it is, whatit is, it is thing cannot change
things such as piece of land are in all circumstances immovable. Other things immovable. Certain
such as trees
attached to the ground are, so long as they are so atached, immovable; when the severance has
been effected they become movable. 02R2 a O N I 0 N
Tangible and Intangible:- (Corporal and Incorporeal)
Property is mainly of two kinds, namely. (i) corporeal, and (ii) incorporeal. Corporeal
is the right of ownership in material things, property
whereas incorporeal property is any other proprietary
right in rem e.g. patent right, right of way. Corporeal property is always
incorporeal property is not. Both are, however, valuable rights inasmuchvisible as
and tangible while
recognised and enforced by law. Corporeal property is of two kinds, movable andthey are legal rights
Incorporeal property is further divisible into two kinds, namely immovable.
(i) jura in re aliena or encumbrances, whether over
lease, mortgages and servitude; and
material or immaterial things, e.g.
(ii) jura in re propria over immaterial
things
The detailed classification of property is such as patents, trade marks, copyright etc.
shown in the Table given below : -

oteolleooaseslkabosteodrtign A
 PROPERTY LAWAND EASEMENT

|Prof. Pathan's) S.P. Law Classes, Pune. Page : 9 a(Cass) 25510256, (Res) 26333908.
Property o14 Inroas iv T9)1

Corporal
,salgd olaioun laiol to bo Tncorporeal

Immovable Movable Jura in re aliena Jure in repropria

Lease Servitüde Securities Trust Patent Copyright Trademark

Mortgage

Ownership of Material Things -

The owner of material object is he who owns a right to the aggregate of itsuses. Thus ownership
is the right of general use. This need not be absolute or unlimited use. The right of ownership is an
inheritable right. In short, the right of ownership inamaterial thing may be defined as the general,
permanent and inheritable right to the uses of a thing.
Corporal and Incorporeal Property
Corporal property is also called tangible property because it has a tangible existence in the
world. It relates to material things e.g. land, house, money, ornaments, gold, silver etc.
are corporal
property the existence of which be felt by the sense-organs.
Incorporeal property is also called intangible property because its existence is neither visible
nor tangible e.g. right of easement, copyright, patent, trademark etc.
In Roman lawcorporeal property is termed res çorporalis and
as res incorporalis. incorporeal property is called
Corporeal property may be divided into
i) Movable property and Immovable property io aniahsdt sisA
11 Real and personal property
a) Movable and Immovable Property -
All corporeal property is either movable or immovable. In English law
as chattels and land respectively. these are
are termed
has the following elements According tosalmond immovable property (i.e. land)
i) A determinate portion of the earth s
ii) The ground beneath the surface downsurface
to the centre of the earth
iii) The column of space above the
iv) All objects which areon or under surface ad infinitum,
the surface in its natural state e.g.
naturalvegetation, or stones lying loose minerals,
V) Allobject placed by human agency on orupon the surface
under the surface of the land with the
intention ofpermanent annexation. e.g. house, walls, fences, doors etc.
 PROPERTYLAWAND EASEMENT
Page : 10 (Class) 2551 0256, (Res) 26333908.
Prof. Pathan s S.P. Law Classes, Pune.

b) Realand Personal property: and personal. This division is

In English Lâw the property has been divided into realmovable. The division into real
jdentical to a great extend with that of immovable and
and personal is not based on any logical principle, but is a result of the course of legal
development in England. The real property includes all rights over land with such
additions and exceptions, as the law has deemed fit. The law of personal property includes
all other proprietary rights whether they are in remn or in personam.

) Incorporeal Property
Incorporeal property is divided in rights in re aliena (Encumbrances) and right ín re propria (in
Immaterial things).
a) Jurein re aliana (Encumbrances) -
Right in re aliana are also known as encumbrances. Encumbrances are the right ofspecific
or perticular user as distinguished from ownership which is ríght of general user.
Encumbrances prevent the owner from exercising some definite right with regard to
his property. The main categories of right in re aliena or encumbrances are -i) Lease,
i) Servitude iii) Security iv) Mortgage.

Common Property:
There are certain properties or things, which are of such nature that they are not transferable.
Those things commonly called as res communis i.e. thing of which no one is a particular owne, and
such things which all main use are not properties. Therefore, cannot be transferred, such as water, air,
sky, stars, moon etc. which are belonging to nobody, are not transferable property.

4. DOCTRINE OF NOTICE

Qtn. Explain the doctrine ofnotice. Distinguish betveen actual notice and constructive notice.
When a person is said to have nòtice of afact?
Write short note on doctrine of notice.
Write short note on constructive notice,

SYNOPSIS:
1. Introduction
2. Definition
3. Essentials of notice
4. Kinds of notice
a) Actual notice
b) Constructive notice
5. Conclusion
 PROPERTY LAWAND EASEMENT

Prof. Pathan s S.P. Law Classes, Pune. Page &11 (Class) 25510256, (Res) 26333908.
1. INTRODUCTION:
The term notice is derived from the Latin words notifia which means a bring known or a
knowing is wide enough in legal circle to include a plaint filed in a suit. The notice isthe very
foundation of the legal system. It is essential, prerequisite for any cause. of action' and to
establish claims and bonafides. It gives an opportunity to the opposite party to comply with or
Settle the claim ofthe claimant without going in the Court of law.sc d

i S. 3, defines notice as under

A person is said to have notice of a fact -
(a) when he actually knows that fact (actual or express notice); or
i (b). i when, but for
willful abstention from an enquiry or search which he ought to have
made,or
() gross negligence,
he would have known it (constructive or implied notice).
Anotice to be bìnding must give definite information given by aperson interested in a
thing in respect of which the notice is issued. Notice is broadly classified in two
(1) Oral or verbal notice; and written notice - A word notice generally signifies a
written notice. Under the provision of law, even a remimder is to be taken as a notice.
Legal notice is easy to prove and there is no scope for dispute, S. 131 of the Transfer
of Property Act,requires a notice to be in writing, in case of Transfer of Actionable
T Claims. Anotice may be oral, for e. g., notice of landlord to tenant to quit may be given
orally.
(2) Constructive notice and actual notice -
cDA person is said to have actual notice or expressly notice of the fact when he actually
knows it. An actual notice, to constitute a binding notice, must be definite and
information given by aperson interested in the thing in respect of which the notice is
issued and it must be given in the same transaction.OZL
3. ESSENTLALS OF NOTICE: -
t o Notice, to be binding, must be definite information given by aperson interested in the thing in
respect of which the notice is issued. It is asettled rule that aperson is not bÍundto attend to
vague rumours or statements by strangers, and that a notice, to be binding, must proceed from
1bnar some person interested in the thing. Amere casual conversation, in which knowledge of a
certain thing is implied, is not notice, unless the mind of the person has, in some way, been
2 brought to an intelligent apprehension of the nature of athing, so that a reasonable man or any
man of ordinary prudence would act upon the information, and would regulate his conduct by
it.
oat In other words, the party imputing notice must show that the other party had knowledge, which
-i Would operate upon the mind of anyrational man, or aman ofbusiness, and make him act with
otlreference to the knowledge he has so acquired. Avagueor genetal report, or themere existence
of suspicious circumstances, is not in itself notice of the matter to which it relates.
 PROPERTYLAWAND EASEMENT

S.P. Law Classes,

Pune. Page : 12 S (Class) 25510256, (Res) 26333908.
Prof. Pathan s
KINDS OFNOTICE: -
4. oiteah ruo RcB on tioan
Notice is oftwo kinds
dSolitol
sa)ipu Actual (express) notice, a n d o h
nbn b) Constructive (implied) n o t i c e . l u r e plodt to tobau
7Ga) Actual notice
Aperson is said to have actual (express) notice of afact when he actually knows it. An
actual notice, to constitute a binding notice, must be definite information given by a
person interested in the thing in respect of which the notice is issued, and it must be
given in the same transaction. Thus, as seen above, vague reports or rumours, or
suspicion of the existence of a fact will not amount to express notice.i
b) Constructive notice - i a n t b wo
The legal presumption ofknowledge (constructive notice) can arise in the following
five cases -
1. Willful abstention from an inquiry or search,
Gross negligence.
iii. Registration.
Actual possession.
V.Notice to agent.
i. Willful abstention from an inquiry or search, and,
u ii. Gross Negligence.
Ifa person would have known afact, but for his gross negligence, or but for the
fact that he had not made an inquiry or search which he ought to have made, he is
deemed to have notice of such fact.
Thus, a person refusing a registered letter sent by post is deemed to have
constructive notice of its contents, and he cannot afterwards plead ignorance of
ieoes tnte.lo its contents, because he has willfully abstained form receiving it and acquainting
brsi
himself with its contents.
215te iii. How far registration amounts to notice (S. 3, Explanation 1) -
In order that registration of an instrument may operate as anotice of its contents,
the following three conditions must be satisfied:
1.
The instrument must be compulsorily registerable - Registration of
a l 2 3 h s instrument is notice only where the instrument is required to be
registered. In cases where registration is not compulsory, but it is only
O e 4Mba optional, the mere fact of registration does not constitute notice.
510o Wa 2. The registration of the document must be completed in the manner
presoribed by the Indian Registration Act.
3.Theinstrument or its memorandum, as the case may be, and the particulars
oi.
blueregarding the transaction to which it relates must be correctly entered in
the registers and indices kept under the Registration Act.
ollnl However. registrationofa sub-mortgage does not operate as anotice to
irww a the mortgagor. Thus, A mortgages property to B, wh0 creates a sub
pays the
mortgage in favour of C. A, in ignorance of the sub-mortgage,registered
il mortgage-debt to B. Here, the fact that the sub-mortgage is
 PROPERTY LAW AND EASEMENT

Prof. Pathan s S.P. Law Classes, Pune. Page : 13 (Class) 25510256, (Res) 26333908.
does not amount to notice of the sub-mortgage to A, so as to vitiate the
payment.
iy. When actual possession amounts to notice, (S. 3, Explanation II)
Actual possession, i.e. de facto possession, of property by another must put the
purchaser of such property on his guard. Possession therefore, amounts to notice
e of title in another. It is, therefore, laid down that any person acquiring any
immovable property or any share or interest in any such property is deemed to
have notice of the title if any of any person who is, for the time being, in actual
opossession thereof;
It willbe seen that this provision makes the factum of possession operate as
notice. Therefore, an intending purchaser of a piece of land will be said to have
constructive notice of athird party sclaim to that land when that third party is in
actual possession thereof, instead of the vendor.
V. When notice to agent amounts to constructive (implied) notice to principal
(S.3,Explanation II)
A person is deemed to have had notice of any fact if his agent acquires notice
thereof -
(a) while acting on his behalf, OQIQOSTI
T25&t nnitar (b) in the course of business;
.ni to (c)to which business, that fact is material.oA ve otee
However, if the agent fraudulently conceals the facts, the principal cannot
d e d hononu be charged with notice thereof as against any person who was () aparty
to or (ii) otherwise connivance of the
To affect the principal with notice, five, things are iraud.S oiri ence190
(a) necessarlso
The agent must have receive the notice during the agency.
obtd
(b) The knowledge must come to him as agent.
(c) It must be in the same transaction.
(d) It mnust be material to the transaction.
(e) It must not have been fraudulently withheld from the principal.
On this principle, it has been held that knowledge or information obtained by a Solicitor or
Muktear in any case will bind his client.
Notice through agent as constructive notice -The doctrine of imputed notice -
Explanation -III makes notice to an agent operate as constructive notice to the principal. The
principle of this rule is based on the maxim Qui facit per alium facit per se, i.e. he who does by
another, does by himself.
5. CONCLUSION: -
In Transfer of Property Act some sections 39, 40, & 131 provides for
notices. Notice may be
either express or constructive while notice to an agent a sometimes called as imputed notice.
Express notice or actual notice whereby a person acquires actual knowledge of the fact.
Constructive notice is the equity, which treats a man who ought to have known a fact, as ifhe
T actually does know it.