EQUITY IN THE TRANSFER OF PROPERTY ACT: RECONSTRUCTING REMEDIES THROUGH INTENT
AUTHORS – YASHIKA SARAF & MIMANSA KATHPAL
STUDENTS AT O.P. JINDAL GLOBAL UNIVERSITY
BEST CITATION – YASHIKA SARAF & MIMANSA KATHPAL, EQUITY IN THE TRANSFER OF PROPERTY ACT: RECONSTRUCTING REMEDIES THROUGH INTENT, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 5 (13) OF 2025, PG. 42-48, APIS – 3920 – 0001 & ISSN – 2583-2344.
ABSTRACT
In the context of equitable remedies under the Indian Transfer of Property Act, 1882 (TPA), this study examines Professor Peter Birks’ fundamental distinction between civil “wrongs” and “not-wrongs,” where the possibility of compensation delineates a breach of duty. [1]It contends that although the Indian Transfer of Property Act, 1882 (TPA) is based on equitable principles, this binary is applied inconsistently, producing frequently unfair results.
To illustrate this conflict, the analysis focusses on particular provisions. It asserts that enhancements made in good faith (S. 51) and transfers made by an apparent owner (S. 41) are appropriately regarded as “not-wrongs,” giving transactional certainty precedence and avoiding unjust enrichment, and so simply requiring restitution. Conversely, S. 43 of the TPA unfairly elevates a “not-wrong” to the rank of a “wrong,” placing compensation obligation on a non-culpable party by confusing fraudulent and simply erroneous transfers.
The article concludes that fairness under the TPA might be improved by a stricter implementation of Birksian taxonomy.[2] The Act could more effectively accomplish its goal of balancing fairness for all parties, including transferors, transferees, and true owners, by purposefully calibrating remedies—reserving compensation for genuine wrongs (fraud, breaches of fiduciary duty) and restricting “not-wrongs” to restorative remedies—instead of favouring one class of innocent parties over another.
Keywords: Transfer of Property Act, 1882, wrongs, not-wrongs, equity, compensation, remedy
[1] Mahima Balaji, Response Paper: Property Law 1–3 (Jindal Global Law School, Spring 2024)
[2] Peter Birks, Rights, Wrongs, and Remedies, 20 Oxford J. Legal Stud. 1, 1–37 (2000).