(.. 6 h..)
TITLE[1]
(Vestitative, Investitative and Divestitative Facts)
QUESTION BANK
- 1 What is title? State the ‘facts establishing title’.
Q.2 “Title is a de facto antecedent of which the right is de-jure consequence” Explain.
Q.3 “What custom is to society as law is to State”, comment.
SHORT NOTES
- Local Custom.
- INTRODUCTION-
The term ‘title’ originated from the Roman word titulus or the French word titre. There is a difference between ‘title’ and ‘right’, even though in general parlance, we use both these terms as one and the same. ‘Title’ is the source from which right derives. One gets a title by happening of a particular fact. Only after getting the title the person can exercise his right over the property. Thus, title precedes right, e.g. sale-deed endows title of ownership on the purchaser, and then only the purchaser can enjoy the purchased property. Thus, the right of enjoyment of property is created by the title of ownership, which is created by the fact of the sale deed in favour of the purchaser. Therefore, Salmond says that ‘the title is de facto antecedent of which the right is de jure consequence[2],” i.e., the acquisition of title follows the right. In other words, the first title is to be acquired, and as a consequence, the title endows right over the property.
The law confers a right upon a person because of certain facts that are true of him but not regarding other persons. In other words, the law confers a right upon a particular person and does not confer the same right as to that matter in any other person. In short, the title is conferred upon a particular person, excluding the rest of the world.
II. DEFINITION-
The term ‘title’ is defined by various authors; some of them are given below-
(1) According to ‘Salmond’-
He defines “‘title’ is a source the product of which is a ‘legal right’”.
According to him, the title is the fifth element of legal right. However, Holland does not accept the title as a source of rights.
(2) According to Holland-
“Title is that source from which a right originates”.
(3) According to Austin-
“Title connotes the existence of an Investigative fact while right indicates power or capacity conferred on a person and is founded in the title”.
III. CLASSIFICATION OF TITLE-
‘Title’ is also called ‘investigative facts,’, i.e. the fact (or reason) which vest title in person.
1) Investigative Title:-
Investigative facts are those as a result of which a right comes to be vested in its owner. The title is the way by which a person gets right over or possession of the property. The title is the source from which right derives. Therefore, Salmond says that “the title is the de facto antecedent of which the right is the dejure consequence”. Here, “de facto” means actual, real or in fact; ‘antecedent’ means prior, past, or preceding and, ‘de jure’ means “in-law”; and the term ‘consequent’ means the consequence or effect. Thus, due to title, legal right comes into existence, or the first title comes, and as its consequence, the person holding the title and enjoying the right to it, e.g., crime is the antecedent of which punishment is a consequence. Similarly, the title of ownership or possession gives a right of enjoyment of that property.
The effect of title is that the law confers a right upon one man (the title holder) that it does not confer upon another (i.e., certain facts are true of him which are not true of others). Thus, due to the title, the law confers related rights to the title holder, excluding the rest of the world. Thus, a title confers right in rem.
One gets a title by happening of a fact and then only enjoys related rights. The facts which confer title (or ways of getting title) are-
(i) Agreement or transfer.
(ii) Succession.
(iii) Adverse possession.
(iv) Easement.
(v) Finding.
(vi) Capture.
(vii) By birth.
(vii) Court orders.
The title can be further divided into –
(i) Original title[3]–
It creates a right de-novo. It creates new rights or fresh rights, e.g. catching fish, building a house, writing a new book, etc.
The title holder is the first person who gets the first or new right relating to that property.
These titles can be acquired by the facts or the ways mentioned above.
(ii) Derivative Title[4]–
The derivative title is that which transfers an existing right to the new owner. Here, no fresh or new right is created; only those rights are transferred that were owned by the earlier owners. For example, purchasing fish from a fisherman, buying an existing house, etc. These are also called ‘alienative titles’.
In fact, both original and derivative titles have the same effect.
2) Divestitative Facts[5] –
Divestitative facts are those that either destroy or transfer rights to others. Thus, they destroy the title of the transferor. For example, if A transfers his house to B by sale, A’s title comes to an end, i.e., divest.
These investigative facts can further be divided into-
(i) Extinctive Facts[6]–
Extinctive facts are those that divest a right by complete destruction, e.g., the right of the creditor is destroyed by the debtor’s full payment of the debt.
(ii) Alternative Facts[7]–
Alternative facts are those which alienate or transfer ownership of a right (or title) to someone else, e.g., the sale of a car from A to B divests A’s right.
3) Vestitative Facts-
Investigative Fact is a fact that either creates (i.e. investigative facts) or destroys (i.e. investigative facts) it. Thus, ‘vestitative fact’ is a fact that either creates title (i.e. investigative facts) or destroys (i.e. Divestitative Facts)
Thus, the term ‘Vestitative fact is a generic term that includes a title or divestitative fact.
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[1] हक्क / काहीतरी करण्याचा अथवा कशावरील तरी हक्क [कुछ या कुछ करने का अधिकार / अधिकार ]
[2] हक्क मिळाल्याचा अथवा निर्माण झाल्याचा परिनाम म्हणुन व्यक्तीस अधिकर प्राप्त होतो, म्हणजेच अधिकार वापरण्यापुर्वि हक्क प्रप्त होणे हे महत्वाचे असते. उद. मालकीचा हक्क खरेदीपत्राने प्राप्त झाल्याषिवाय व्यक्ती ती मिळकत स्वतरू च्या कारणासाठी वापरू अथवा विकु षकत नाही म्हणजेच अधिकार वापरू षकत नाही.-
[अधिकार प्राप्त करने या बनाने के परिणामस्वरूप व्यक्ति को अधिकार प्राप्त होता है, अर्थात अधिकार का प्रयोग करने से पहले अधिकार प्राप्त करना महत्वपूर्ण है। भूतपूर्व। एक व्यक्ति अपने स्वयं के उद्देश्यों के लिए संपत्ति का उपयोग या निपटान नहीं कर सकता है जब तक कि बिक्री के एक विलेख द्वारा स्वामित्व का अधिकार प्राप्त नहीं किया जाता है, अर्थात वह अधिकार का प्रयोग नहीं कर सकता है। ]
[3] नविन हक्क [नए अधिकार ]
[4] हस्तांतरीत हक्क [हस्तांतरणीय अधिकार ]
[5] हकक नष्ट करणा-या घटणा [घटनाओं से बचना ]
[6] नश्ट करणा-या घटणा [विनाशकारी घटनाएं ]
[7] हकक हस्तांतरीत करणा-या घटणा [अधिकारों के हस्तांतरण को नियंत्रित करने वाली घटनाएँ ]