Concept of Property: Corporeal and Incorporeal

The concept of property is fundamental to legal systems as it defines the relationship between individuals or entities and objects or rights. Property is often understood as a bundle of rights, including the right to possess, use, enjoy, exclude others, and alienate (transfer) the subject matter.

Tangible vs. Intangible Property

Property can be broadly classified into two categories: Corporeal (Tangible) and Incorporeal (Intangible).

Corporeal Property:

This refers to property that has a physical existence and can be perceived by the senses. It is tangible and occupies space. Examples include land, buildings, vehicles, furniture, jewellery, and other physical objects.

Corporeal property can be further divided into:

• Movable Corporeal Property: Things that can be moved from one place to another without altering their nature or causing damage (e.g., cars, books, furniture).
• Immovable Corporeal Property: Land and things permanently attached to the land (e.g., buildings, trees, fixtures).

Incorporeal Property:

This refers to property that does not have a physical existence but represents a valuable legal right or interest. It is intangible. These are rights that can be owned and transferred, but they are not physical objects.

Examples include:

• Intellectual Property: Copyrights, patents, trademarks, trade secrets. These represent rights over creations of the mind. For instance, owning a copyright gives the creator exclusive rights over the reproduction and distribution of their work.
• Choses in Action: Rights that can only be claimed or enforced by legal action, not by taking physical possession. Examples include debts (the right to recover money owed), contractual rights, rights under a negotiable instrument (like a cheque or promissory note), and shares in a company.
• Goodwill: The reputation and established custom of a business, which contributes to its value.
• Easements: A right held by one landowner to make limited use of another's land (e.g., a right of way).
• Profits à prendre: The right to take something from another person's land (e.g., minerals, timber, fish).

The distinction between corporeal and incorporeal property is important because different legal rules and procedures often apply to each category, particularly regarding transfer, taxation, and enforcement of rights. In many jurisdictions, corporeal property is taxed differently (e.g., property tax on land and buildings) than certain forms of incorporeal property.

Legal Definition of Property

In law, the term "property" is used in various senses. It can refer to the object of ownership (the 'thing' itself), or the rights associated with ownership, or the entire relationship between a person and the object of their rights. More precisely, legal definitions often focus on the bundle of rights that constitute ownership.

Distinction between Property and Possession

It is crucial to distinguish between property (ownership) and possession. While they often coincide, they represent distinct legal concepts.

Property (Ownership):

Ownership is the ultimate legal right to the subject matter. It is a complex bundle of rights, typically including:

• The right to possess the property ($jus\ possidendi$).
• The right to use and enjoy the property ($jus\ utendi\ et\ abutendi$).
• The right to alienate or transfer the property ($jus\ disponendi$).
• The right to destroy the property (within legal limits).
• The right to exclude others from using or possessing the property.
• The right to the income or fruits generated by the property.

Ownership is a legal title that is generally enforceable against the entire world ($erga\ omnes$). An owner may not always be in possession of the property (e.g., a landlord owns a property but the tenant possesses it). The legal title of ownership persists even if possession is lost, and the owner typically has legal remedies to recover possession.

Possession:

Possession refers to the physical control or custody of a thing, coupled with the intention to hold it as one's own ($animus\ possidendi$). It is primarily a matter of fact, although it has significant legal consequences.

Possession involves two elements:

• Corpus: Physical control or power over the object. This doesn't always mean direct physical touching but implies the ability to control the object and exclude others from it.
• Animus: The intention to exercise control over the object on one's own behalf, or to the exclusion of others.

Possession provides a right good against everyone except the true owner. A person in possession is presumed to be the owner until proven otherwise. Possessory rights can sometimes ripen into ownership rights over time through doctrines like adverse possession (prescription), where possession for a statutorily defined period can extinguish the title of the true owner.

Key Differences:

In many legal disputes, possession is often the starting point for determining rights, but ownership is the ultimate right that prevails unless extinguished by law (e.g., prescription, expropriation).

Types of Property: Movable vs. Immovable Property

The distinction between movable and immovable property is a fundamental classification in property law, particularly significant in India. Different laws and rules apply to the transfer, taxation, inheritance, and registration of these two types of properties.

Movable Property:

Generally, movable property includes everything that is not immovable property. It comprises tangible things that can be moved from one place to another without causing damage or altering their nature.

Examples include goods, vehicles, furniture, books, clothes, money, shares, and other tangible personal belongings. Choses in action (debts, contractual rights) are also considered movable property (though incorporeal).

The transfer of movable property is typically governed by laws like the Sale of Goods Act.

Immovable Property:

The Transfer of Property Act, 1882, which is the primary law governing property transfers in India, provides a definition of immovable property:

This definition is not exhaustive but rather exclusionary. It tells us what is *not* immovable property.

For a more positive definition, we look to the General Clauses Act, 1897:

This definition provides the core components of immovable property:

• Land: The surface of the earth, the soil below it, and the air space above it to an indefinite extent.
• Benefits to arise out of land: Rights that are derived from the land itself, even if they are not physical objects. Examples include rent from land, rights to collect produce, rights of way, fisheries, etc.
• Things attached to the earth: This is further explained by Section 3 of the Transfer of Property Act, 1882, which states that "attached to the earth" means:
  1. rooted in the earth, as in the case of trees and shrubs;
  2. imbedded in the earth, as in the case of walls or buildings; or
  3. attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
• Things permanently fastened to anything attached to the earth: Items fixed to things like walls or buildings with the intention of making them a permanent part of the structure for its beneficial enjoyment (e.g., permanent fixtures).

Tests for Determining Immovable Property

Based on the definitions, particularly Section 3(26) of the General Clauses Act and the explanation of "attached to the earth" in the Transfer of Property Act, courts apply certain tests to determine whether something is immovable property, especially regarding "things attached to the earth".

1. Degree or Mode of Annexion (How it is attached):

This test examines how the item is physically attached to the land or building. Is it merely resting on the surface or is it deeply rooted or imbedded? If removal would cause significant damage to the land, building, or the item itself, it suggests a higher degree of annexion, pointing towards it being immovable.

Examples:

• Trees and shrubs rooted in the earth are generally immovable, unless they are "standing timber" (timber trees that are intended to be cut in the near future).
• Buildings are imbedded in the earth and are clearly immovable.
• Heavy machinery merely resting on its own weight might be considered movable, but if it is bolted or cemented to the foundation, it leans towards being immovable.

2. Object or Intention of Annexion (Why it is attached):

This is often considered the more important test, as established by various judicial pronouncements. The intention behind attaching the item is crucial. Was the attachment intended to be temporary for enjoying the item itself, or was it intended to be permanent for the beneficial enjoyment of the land or building to which it is attached?

Examples:

• A painting or a mirror hung on a wall for temporary display is movable.
• Doors, windows, and electrical fittings installed during the construction of a house are intended for the permanent beneficial enjoyment of the house, hence they are immovable.
• Machinery installed in a factory may be bolted down (degree of annexion), but if the intention was to keep it there permanently for running the factory (beneficial enjoyment of the factory building), it is likely immovable. If the intention was temporary or the machinery is easily removable and intended to be moved to other locations, it is likely movable.

The intention is assessed objectively, considering the circumstances, the nature of the item, the mode of attachment, and the purpose of the attachment. The subjective intention of the person making the attachment is less relevant than the objective purpose served by the annexation.

Exceptions to the Rules:

As per the definition in the Transfer of Property Act, 1882, "standing timber, growing crops or grass" are *not* considered immovable property, even though they are rooted in the earth. This is because the intention is typically to sever them from the land and use them as movable articles (timber for wood, crops for food/sale, grass for fodder).

In summary, determining whether property is movable or immovable requires careful consideration of legal definitions and the application of tests related to the mode and intention of attachment, especially when dealing with items affixed to the land or buildings.

Sources of Property Law in India

Property law in India is a complex subject with its origins in various legal traditions and sources. The legal framework governing ownership, transfer, and rights related to property draws from both indigenous systems and colonial influences. The principal sources are:

English Common Law

While not directly applicable, principles of English Common Law significantly influenced the development of property law in India, especially during the British colonial period. Concepts like estates, trusts, mortgages, leases, and the distinction between real and personal property were introduced and adapted. Judicial decisions of English courts also played a persuasive role in interpreting property rights and concepts before the codification of laws. The idea of 'equity', which developed in English Chancery courts, also impacted principles related to specific performance of contracts involving land and relief against forfeiture.

Statutory Law (Transfer of Property Act, 1882, etc.)

Statutory law is the primary source of property law in modern India. Parliament and State Legislatures enact laws governing various aspects of property. The most significant statute is the Transfer of Property Act, 1882. This Act deals with the transfer of property between living persons ($inter\ vivos$). It covers various types of transfers such as sale, mortgage, lease, exchange, and gift. It also lays down general principles applicable to transfers, such as the rule against perpetuity, the doctrine of election, the doctrine of lis pendens, etc.

Other important statutes include:

• The Indian Registration Act, 1908: Mandates compulsory registration for certain transactions involving immovable property (e.g., sale deeds, mortgages over a certain value, leases for more than one year) to ensure public record and provide notice.
• The Indian Stamp Act, 1899: Requires payment of stamp duty on various instruments, including those related to property transfer, to make them legally valid and admissible as evidence.
• The Indian Succession Act, 1925: Governs succession to property after the death of a person, primarily for Christians, Parsis, and Jews, and also provides rules for wills applicable to all communities. (Succession for Hindus and Muslims is largely governed by their respective personal laws).
• Specific Relief Act, 1963: Deals with remedies available for enforcing property rights, such as suits for possession or specific performance of contracts related to property.
• Land Revenue Codes of various States: Govern matters related to land ownership records, assessment and collection of land revenue, partition of agricultural land, etc.
• Rent Control Acts of various States: Regulate landlord-tenant relationships, rents, and eviction proceedings, primarily for urban properties.
• Laws related to Land Acquisition: Such as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which govern the government's power to acquire private land for public purposes.

These statutes form the bedrock of property law in India, providing clarity, uniformity, and predictability in property transactions and disputes.

Personal Laws (Hindu Law, Muslim Law)

Personal laws governing different religious communities significantly impact the acquisition, devolution (succession and inheritance), and sometimes the management and transfer of property, particularly ancestral and joint family property. While the Transfer of Property Act governs transfers between living persons, personal laws often dictate how property is inherited after death or how it is held within a family structure.

• Hindu Law: Governs property rights among Hindus, Buddhists, Jains, and Sikhs. Key aspects covered include the concept of joint family property (HUF), coparcenary property, separate property, partition, inheritance rules (governed by the Hindu Succession Act, 1956, as amended), and women's property rights (Stridhan).
• Muslim Law: Governs property rights among Muslims. It deals with matters like inheritance under Muslim Personal Law (Shariat), Waqfs (charitable endowments), and gifts (Hiba). The rules of inheritance under Muslim Law are distinct from Hindu Law and vary between Sunni and Shia sects.

These personal laws continue to play a vital role in specific areas of property law, especially succession and family property arrangements, coexisting with the general statutory laws.

Customary Law

Customs or usages, if they are ancient, reasonable, certain, and not opposed to public policy or any statute, can also be a source of property law in India. Section 2(d) of the Transfer of Property Act, 1882, saves any rule of Muhammadan law and any custom or usage not inconsistent with the provisions of the Act. Similarly, personal laws often recognise the validity of customs. For example, certain local customs might govern agricultural tenancies, rights of way, or other specific property-related matters in a particular region or community. However, the role of customary law has diminished significantly with the increasing codification of laws.

In addition to these, Judicial Decisions (case law) by the Supreme Court and High Courts play a crucial role in interpreting statutory provisions, personal laws, and customs, clarifying legal principles, and setting precedents, thereby evolving the property law landscape in India.

Classification of Property Rights

Property rights represent the legal interests that a person has in a specific property. These rights can be classified in various ways, reflecting the nature and extent of control or benefit a person derives from the property. Some key classifications include the bundle of rights associated with ownership and the distinction between real and personal rights.

Ownership, Possession, Use, Enjoyment

As discussed earlier (under the distinction between property and possession), ownership is often described as a 'bundle of rights'. These rights, though not exhaustive or universally defined, typically include:

• Right to Possess ($jus\ possidendi$): The right to have physical control over the property. While ownership is a legal right, possession is often its factual manifestation. An owner has the right to claim possession if someone else is possessing it without a superior right.
• Right to Use ($jus\ utendi$): The right to use the property in any manner permitted by law. This includes using it for personal residence, business, agriculture, etc., subject to zoning laws, environmental regulations, and rights of others.
• Right to Enjoy ($jus\ fruendi$): The right to derive income or other benefits from the property. This includes collecting rent, harvesting crops, receiving dividends (for shares), or generally benefiting from the property's existence or use.
• Right to Alienate ($jus\ disponendi$): The right to transfer or dispose of the property, whether by sale, gift, mortgage, lease, exchange, or will. This is a core aspect of ownership, allowing the owner to pass title to others.
• Right to Destroy ($jus\ abutendi$): The right to destroy the property, although this right is subject to legal restrictions (e.g., historical preservation laws, environmental laws, not destroying property that affects others' rights).
• Right to Exclude: The right to prevent others from using, possessing, or interfering with the property.

Ownership typically includes all or most of these rights. However, property rights can be fragmented, meaning different aspects of the bundle of rights can be held by different people simultaneously (e.g., an owner holds the right to title and future possession, while a tenant holds the right to present possession and use). Mortgages, easements, and leases are examples of such fragmentation.

Real Rights vs. Personal Rights

This is a fundamental classification distinguishing rights related to things ($in\ rem$) from rights against persons ($in\ personam$). This classification originates from Roman Law and is influential in many legal systems, including those derived from Common Law principles.

Real Rights ($jus\ in\ re$):

Real rights are rights exerciseable over a specific thing ($res$), good against the whole world ($erga\ omnes$). These rights attach to the property itself, not to a specific person against whom the right is claimed (other than the general obligation of everyone to respect the right). Ownership is the most comprehensive real right. Other examples include easements, mortgages (in some systems), and leases (when they create an interest in land, as they often do).

Key characteristics of Real Rights:

• Attach to the thing.
• Enforceable against everyone ($erga\ omnes$).
• Often involve a direct relationship between the right-holder and the property.
• Examples: Ownership, possession (relative real right), easements, charges on property, sometimes mortgages and long-term leases.

Personal Rights ($jus\ in\ personam$):

Personal rights are rights exerciseable against a specific person or a defined group of persons ($in\ personam$). These rights arise from obligations, contracts, or delicts (torts). They do not attach to a specific thing in a way that binds the world, but rather create a claim against an individual or entity.

Key characteristics of Personal Rights:

• Attach to a person/obligation.
• Enforceable only against the specific person(s) liable ($in\ personam$).
• Arise typically from agreements (contracts) or wrongs (torts).
• Examples: A debt (right to claim money from the debtor), contractual rights (right to enforce a contract against the other party), rights under a lease as a contract between landlord and tenant (the obligation to pay rent is personal), a right to damages for breach of contract or tort.

Distinction Summary:

Understanding this distinction is crucial in property law as it determines against whom a right can be enforced and the nature of the remedies available. For instance, if someone trespasses on your land, your right to exclusive possession (a real right) allows you to sue the trespasser. If a tenant fails to pay rent (a breach of a personal right under the lease contract), your primary claim is against the tenant personally, although the lease might also create certain real rights over the property itself (like a right of re-entry).

Competent Transferor

For a transfer of property to be legally valid, one of the fundamental requirements is that the person making the transfer, known as the Transferor, must be legally competent to do so. The capacity of a person to transfer property is primarily governed by Section 7 of the Transfer of Property Act, 1882 (TPA) and general principles of contract law, as the transfer of property often arises from a contract (like a contract of sale or gift).

Legal Capacity to Transfer

Section 7 of the Transfer of Property Act, 1882 states:

This section lays down two essential conditions for a person to be a competent transferor:

1. The person must be competent to contract.
2. The person must be entitled to the transferable property, or authorized to dispose of it.

The first condition, being "competent to contract," directly refers to the provisions of the Indian Contract Act, 1872. Section 11 of the Indian Contract Act specifies who is competent to contract.

Conditions for Majority, Sound Mind, Disqualification

As per Section 11 of the Indian Contract Act, 1872, every person is competent to contract who is:

1. of the age of majority according to the law to which he is subject; and
2. who is of sound mind; and
3. is not disqualified from contracting by any law to which he is subject.

Let's elaborate on these conditions in the context of property transfer:

1. Majority:

In India, the age of majority is generally eighteen years, as per the Indian Majority Act, 1875. A person who has not attained the age of majority (a minor) is generally incompetent to contract, and therefore, incompetent to transfer property. A transfer made by a minor is void ab initio (void from the beginning), not merely voidable. However, a transfer *to* a minor is generally valid.

2. Sound Mind:

According to Section 12 of the Indian Contract Act, a person is said to be of sound mind for the purpose of making a contract (and thus a transfer of property) if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a transfer when he is of sound mind. Similarly, a person who is usually of sound mind, but occasionally of unsound mind, may not make a transfer when he is of unsound mind.

Transfers made by persons of unsound mind (like lunatics or idiots) are generally void or voidable depending on the nature and severity of the mental incapacity and whether it was known to the other party.

3. Not Disqualified by Law:

Certain persons may be disqualified from contracting or transferring property by specific laws. Examples include:

• Insolvent Persons: An insolvent person's property vests in the Official Receiver or Official Assignee, and he loses the capacity to transfer it.
• Alien Enemies: During wartime, alien enemies may be restricted from transferring property.
• Convicts: In some cases, depending on the specific law, convicts might face restrictions on property transfers.
• Persons under Restraint or Legal Disability: Persons whose property is under the superintendence of the Court of Wards or other legal guardianship may have limited capacity to transfer.

Furthermore, the second condition of Section 7 TPA requires that the transferor must be "entitled to transferable property, or authorized to dispose of transferable property not his own". This means the transferor must either be the owner of the property with the right to transfer it, or they must have been given the legal authority by the owner or by law to transfer the property (e.g., an agent with a power of attorney, a guardian transferring property on behalf of a minor with court permission, an executor or administrator disposing of a deceased person's property).

A person cannot transfer a better title than they themselves possess (the principle of Nemo dat quod non habet, subject to certain exceptions like transfer by ostensible owner, transfer by a person in possession under voidable contract, etc., which are covered under subsequent sections of TPA).

Competent Transferee

While the competence of the transferor is crucial for a valid transfer, the law is much more lenient regarding the capacity of the person receiving the property, known as the Transferee. The general rule is that any living person can be a transferee.

The term "living person" under the Transfer of Property Act includes a company or association or body of individuals, whether incorporated or not (as per Section 5 of TPA). This means artificial legal entities can also be transferees.

Unlike a transferor, a transferee does not need to be competent to contract. Therefore, a minor or a person of unsound mind can be a valid transferee of property. The logic is that receiving property is generally for one's benefit, and the legal system allows even those lacking full capacity to acquire beneficial rights, though the property would be managed by their legal guardian or representative.

However, there are certain limitations on who can be a transferee, primarily based on the nature of the property or public policy, listed under Section 6(h) of the Transfer of Property Act, 1882:

The third point, Section 6(h)(3), refers to persons "legally disqualified to be a transferee". Such disqualifications are specific and are imposed by other laws, not by the TPA itself based on age or mental capacity. Examples of such disqualifications might arise under specific statutes, such as:

• Restrictions on foreigners acquiring agricultural land.
• Restrictions on certain classes of persons acquiring land in tribal areas under specific state laws.
• Restrictions on judges or other public officials purchasing property involved in litigation before them.

So, while a minor can receive property by way of gift or inheritance, they cannot, for instance, enter into a contract to purchase property unless represented by a guardian, but even then, the issue is the minor's capacity as a party to the contract, not strictly their capacity to *receive* the transfer of title.

In essence, the law facilitates the acquisition of property and places the burden of competence primarily on the transferor who is divesting themselves of rights.

Lawful Object and Consideration

Similar to contracts, a valid transfer of property must be made for a lawful object and, where applicable, a lawful consideration. This requirement is implicitly incorporated into property law, particularly through Section 6(h)(2) of the Transfer of Property Act, 1882, which cross-references Section 23 of the Indian Contract Act, 1872.

Prohibition of Transfer for Unlawful Object

Section 6(h)(2) of the TPA states that no transfer can be made "for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872".

Section 23 of the Indian Contract Act specifies when a consideration or object is unlawful:

Applying this to property transfers:

• Forbidden by law: A transfer of property made with the object of facilitating an illegal activity (e.g., transferring a building specifically to be used for illegal gambling or storing contraband) would be void because the object is forbidden by law.
• Defeats the provisions of any law: A transfer designed to circumvent the provisions of rent control laws, land ceiling acts, or insolvency laws would be void. For example, creating a benami transaction (transferring property into someone else's name to hide ownership) to evade taxes or legal obligations can be considered defeating the provisions of law.
• Fraudulent: A transfer made with the intention to defraud creditors is voidable at the option of the creditors under Section 53 of the TPA (Fraudulent Transfers).
• Involves or implies injury to person or property: A transfer intended to facilitate causing harm to someone or damaging other property would be unlawful.
• Immoral or opposed to public policy: While broader and subject to judicial interpretation, transfers made for immoral purposes (e.g., transferring property to a person to encourage prostitution) or against public policy (e.g., transferring property to stifle a criminal prosecution) would be considered void.

If the object or consideration of a transfer falls under any of these categories, the transfer is void. For example, a sale deed for which the payment (consideration) is a promise to commit an illegal act, or a gift deed where the motive (object) is to evade legal proceedings, would be invalid.

It's important to note that for transfers like gifts, there might not be 'consideration' in the contractual sense (something of value in return), but the 'object' of the gift must still be lawful. For sales, exchanges, or mortgages, both the object and the consideration must be lawful.

Transfer of Property

Beyond the competence of the parties and the lawfulness of the object and consideration, the property itself must be capable of being transferred, and the transfer must adhere to the legal formalities prescribed for that specific type of property and transaction.

Property Must be Transferable

Section 6 of the Transfer of Property Act, 1882, enumerates various things that cannot be transferred. This section prevents the transfer of certain rights or interests that are either purely personal, uncertain, or against public policy or law. If a transfer is attempted for any of the properties listed under Section 6, it would be void.

Some key items that cannot be transferred under Section 6 include:

• 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: These are mere expectations (Spes Successionis) and do not constitute a vested interest that can be transferred.
• A mere right of re-entry for breach of a condition subsequent: The right of a lessor to re-enter leased property if a condition is broken cannot be transferred separately from the property itself.
• An easement apart from the dominant heritage: An easement is a right attached to one property (dominant heritage) for the enjoyment of another property (servient heritage). It cannot be transferred independently.
• An interest in property restricted in its enjoyment to the owner personally: For example, a right to receive maintenance from property, which is a personal right, cannot be transferred.
• A right to future maintenance, in whatsoever manner arising, secured or determined: Similar to personal interests, the right to receive maintenance is personal and cannot be alienated.
• A mere right to sue: A bare right to take legal action (e.g., for damages for defamation) is not transferable. However, a right arising from a contract that gives rise to a debt or a beneficial interest in movable property is transferable as it's more than a mere right to sue.
• Public offices or salary of a public officer: These are non-transferable for reasons of public policy.
• Stipends allowed to military, naval, air force, and civil pensioners of the Government and political pensions: These are also non-transferable for public policy reasons.
• No transfer can be made in so far as it is opposed to the nature of the interest affected thereby, or for an unlawful object or consideration, or to a legally disqualified person: (As discussed under Lawful Object/Consideration and Competent Transferee).

Essentially, Section 6 ensures that only actual, vested, and legally recognized property rights, which are not purely personal or speculative, can be transferred.

Formalities of Transfer (Registration, Attestation)

For a transfer of property to be legally effective, it must comply with the formalities prescribed by law. These formalities vary depending on the type of property (movable or immovable) and the nature of the transfer (sale, gift, mortgage, lease, etc.).

For Immovable Property:

Transfers of immovable property are subject to stricter formalities primarily laid down in the Transfer of Property Act, 1882, and the Indian Registration Act, 1908.

• Written Instrument: Most significant transfers of immovable property require a written document (a deed).
• Registration: The Indian Registration Act, 1908, mandates compulsory registration for several types of documents relating to immovable property. Section 17 of the Registration Act lists these documents, which include:
  • Instruments of gift of immovable property. (Section 123 TPA)
  • Non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. (Covers Sale deeds above ₹100 - Section 54 TPA, Mortgages above ₹100 - Section 59 TPA).
  • Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. (Section 107 TPA).

  Failure to register a document that is compulsorily registrable renders it legally ineffective to create or transfer the interest in the property. Registration serves as a public record and gives notice to the world about the transaction.

• Attestation: Certain transfers require the instrument to be attested. Attestation means that the document is signed by the transferor in the presence of witnesses, who also sign the document to certify that they have seen the transferor sign or affix his mark, or have seen some other person sign the document in the transferor's presence and by his direction. The witnesses must sign in the presence of the transferor. The number of witnesses required varies:
  • Mortgage Deed: Requires attestation by at least two witnesses (Section 59 TPA).
  • Gift Deed: Requires attestation by at least two witnesses (Section 123 TPA).
  • Sale Deed or Lease Deed: Generally do not require attestation for validity under TPA itself, although they may be attested in practice. However, if the transferor signs by mark, attestation is required under general law. Power of Attorney used for sale may require registration and attestation.
• Delivery of Possession: While transfer of ownership of immovable property typically occurs upon execution and registration of the deed, delivery of possession is the physical act of handing over control of the property. For certain transfers like sale below ₹100 (though rarely applicable now) or simple mortgages, delivery of possession can be an alternative mode of transfer in some cases, but usually, it accompanies the registered deed.

For Movable Property:

Transfers of movable property are generally less formal and governed primarily by the Sale of Goods Act, 1930. Ownership of movable property can typically be transferred by:

• Agreement of the parties, often coupled with:
• Delivery of the goods, or
• Intention of the parties to transfer ownership, even without immediate delivery.

Registration and attestation are generally not required for the transfer of movable property, unless mandated by specific laws (e.g., registration of vehicles under the Motor Vehicles Act, 1988).

In summary, a valid transfer of property requires a confluence of factors: a competent transferor, a capable (though not necessarily competent to contract) transferee, a lawful object and consideration, a transferable subject matter, and adherence to the specific legal formalities mandated for the type of property and transaction involved.