Intricacies of property law

TRANSFER OF PROPERTY ACT 1882: M. R. Mallick; Eastern Law House Pvt. Ltd., 36, Netaji Subhash Marg, Daryaganj, New Delhi-110002. Rs. 750.

THE PROPRIETARIAT owns wealth and rules the world. The proletariat is hungry to share it as a claim of social justice. This perennial process is the operational essence of the economic history of homo sapiens over the ages and explains the role of the rule of law in the materialist development of society and is the vintage wisdom behind the jurisprudence of transfer of property. This philosophical backdrop tells us the truth of feudalism, capitalism, socialism and the current post-industrial global grab of all resources by Multi-National Corporations.

Whatever be the social system, the importance of the law of property is not diminished. So it is that the Transfer of Property Act, 1882, though of British Indian vintage, still governs "socialist", "secular" India's transactions.

The publisher of law books, has with a sense of values of contemporary relevance, brought out one of the best books on the subject of transfer of property authored originally by Goyle and now produced in a new incarnation by M. R. Mallick as the second edition with considerable revisions and an integrated vision of the law and value additions of sister enactments like the Easements Act and Government Grants Act.

Mulla held the field as the best on many legal topics in my college days but new times produce new authors, and new challenges introduce new changes since law never stands still, even Constitutional Law which, in India, first treated right to property as a fundamental right but, though dethroned from part III, still enjoys protection of the law under Article 300A.

The mystiques of property and its occult power apart, the student of law must acquaint himself with the latest on the law of property since that is the essence of human relations governance, be it domestic, commercial or other. Of course, the sting of intellectual property or other neo-imperialist species has not polluted the book.

Only the traditional concept of transfer of real property and the like come under the purview of the older statutes and these are the staple diet of the legal system.

Constitutional Litigation with PIL (Public Interest Litigation) has taken all the lawyers into its fold because there is money and publicity in it.

The result is that standard statutes like Transfer of Property Act are neglected by the law students and lawyers generally. This situation is harmful because basic laws, civil and criminal, cannot be ignored by law student or lawyer without detriment to the rule of law in its wider sweep. However, Goyle's T.P. Act, a standard work, has now made invigorated reappearance as Mallick's second edition. It must be remembered that the original of Goyle has been vastly improved upon by Mallick.

Of course, the law also has changed through amendments, substantial in character, with new case law pouring in from High Courts and the Supreme Court. Having gone through the heavy but erudite and weighty book I am able to say that, in the present version, it is an exhaustive presentation of the law on the subject.

The inflow of rulings is enormous and Mallick has exhaustively covered the pronouncements on every point. Illustratively, I may mention out of curiosity, an odd decision of mine on Sec. 129 of the T.P. Act while sitting as a single judge (AIR 1972 Kerala 27) is referred to. Legal lucubration indeed!

Hehas restructured the presentation and made a utilitarian, section-by-section commentary. The significant amendments find a place in the present volume. Do not miss the Amendment Act of 2000 A.D.

TheIndian Easements Act is an appropriate inclusion. On the whole, I may say that I am fascinated by the present publication. Thanks to the enthusiastic publisher, the bar and the bench will find the book not merely extensive but also learned. The four allied statutes added as appendices are a bonus.

Before I end, it is fair to mention that the Transfer of Property Act, although ancient in origin, has undergone thorough mutation in 1929, more to bring it in accord with the principles of English Law. However, it must be remembered that English Law is not applicable to India now and we have to go by Indian conditions and the text of Indian statutes.

The dangers of simian imitation of English common law have been noticed even by the Privy Council and more clearly by the Supreme Court.

The tendency of lawyers, conditioned by English jurisprudence on real property, to import into India is a kind of perpetuation of colonial legalism under the guise of "justice, equity and good conscience''.

Another feature, which must be brought to the notice of the legal profession, is the recent amendments not merely to the T.P. Act but also to the Registration Act and the Indian Stamp Act by the enactment of 2000 A.D. An important change is the need for registration of documents containing contracts for the purpose of Section 53A of the T.P. Act.

The meticulous care with which the author has discussed the law relating to the creation of trusts and other religious and charitable deeds, in the background of landmark English and Indian rulings, is commendable.

The intricacies of property law, especially relating to mortgages and charges, summon the serious attention of the law practitioners both in consultation and litigation.

The time has come for the courts and the lawyers' chambers concerned not to confine themselves to constitutional law and environmental jurisprudence but also to keep abreast of substantive statutes like the T.P. Act whose neglect, especially when international dealings are escalating, may well be dangerous.

The staple diet of law is property transactions although agrarian legislations, in some States, have downgraded the importance of the old time zamindari disputes and the like.

With a comprehensive work like the one under review, one can confidently understand the law of immovable property when it comes up for adjudication.

To dwell at length on the provisions of the T.P. Act as dealt with by the author is unnecessary and otiose in a mere review, and so I pause at this point.

V. R. KRISHNA IYER

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