Title

When you buy a second-hand car, the seller hands you the keys (possession), and you become the owner (the right). But if anyone asks why the car is yours, you point to something else: the sale, evidenced by the receipt and the registration transfer. That 'why' is your title. And if the seller had himself bought a stolen car, your title is only as good as his, because no one can give what he does not have. Title is the story of how a right came to rest with you, and a good title is a story with no broken link.

Figure: Vestitive facts as a family tree: investitive facts vest a right; divestitive facts are either translative (alienative), passing the right to another, or extinctive, destroying it; and a sale by A to B is divestitive for A and investitive for B

1. Meaning of Title

Title is the fifth of Salmond's elements of a legal right, after the person of inherence, the person of incidence, the content and the object (see Note 28). Every right has a title, because the law never confers a right on a person without some fact that connects the two. The owner of land holds his right by virtue of a sale, gift, inheritance or long possession; the creditor holds his by virtue of a contract or a loan. In ordinary speech 'title' also means the document evidencing the right (a title deed) or the right of ownership itself (as in 'he has title to the land'). In jurisprudence the word is used strictly for the operative fact. Hohfeld's distinction helps: the sale is the operative fact; the sale deed is evidence of it.

2. Vestitive Facts

The facts that create, transfer or destroy rights are called vestitive facts. This vocabulary goes back to Bentham and was adopted by Salmond and Holland. They are of two kinds. Investitive facts are those by which a right begins to be vested in a person. Divestitive facts are those by which a right ceases to be vested in its owner. Salmond divides divestitive facts in turn into alienative or translative facts, which take the right from one person and transfer it to another, and extinctive facts, which destroy the right altogether, leaving no successor.

The key insight is that one fact can wear two hats. A sale is divestitive for the seller, who loses the right, and investitive for the buyer, who gains it. It is a translative fact. An extinctive fact wears only one hat: a release ends the creditor's right, and no one acquires it. This is why an MCQ asking which fact is both investitive and divestitive has the answer a translative fact such as a sale.

3. Acts and Events; Acts in the Law and Acts of the Law

Vestitive facts are either acts (voluntary human conduct) or events (occurrences independent of the will of the person concerned, such as birth, death or the lapse of time). Death, for instance, is an event that divests the deceased and invests his heirs.

Acts are further divided. An act in the law is an act of a private person done with the intention of producing a legal effect, which the law allows to produce that effect: making a contract, executing a conveyance, making a will, releasing a debt. It may be unilateral (a will, which needs only the testator's intention) or bilateral (an agreement, which needs the consent of two). An act of the law is the creation, transfer or extinction of rights by the law itself, independently of the will of the persons concerned: the vesting of an insolvent's property in the official receiver, the passing of property on intestacy, or a court decree transferring title. The difference is between a right moving because a person wills it and a right moving because the law ordains it.

4. Agreement: the Most Important Vestitive Fact

Salmond treats agreement as the most important of all vestitive facts, because the greater part of the rights people hold is created, transferred or extinguished by consent. An agreement may create rights (a contract creating obligations), transfer them (a conveyance or assignment) or extinguish them (a release). Its effect depends on its validity, and the Indian Contract Act gives the categories precise meanings.

5. Original and Derivative Title; Nemo Dat

An original title creates a right that did not previously exist or belonged to no one: occupation of a res nullius (a wild animal, an abandoned thing), the creation of a new thing, the writing of a book. A derivative title transfers an existing right from a previous owner: sale, gift, inheritance. Most titles in a developed society are derivative, and every derivative title is only as good as the title it derives from. That is the rule nemo dat quod non habet: no one gives what he does not have.

Section 27 of the Sale of Goods Act, 1930 states the rule: where goods are sold by a person who is not their owner and does not sell with the owner's authority or consent, the buyer acquires no better title than the seller had. The Act then protects innocent buyers in defined cases, such as a sale by a mercantile agent in possession with the owner's consent (proviso to s.27), a sale by a person in possession under a voidable contract before it is rescinded (s.29), and a sale by a seller or buyer left in possession (s.30). The law of negotiable instruments goes further, giving a holder in due course a title free from defects in the title of prior parties.

The Transfer of Property Act, 1882 has two notable exceptions for immovable property. Under Section 41 (ostensible owner), where a person is the ostensible owner with the consent, express or implied, of the real owner, a transfer by him for consideration is not voidable on the ground that he was not authorised, provided the transferee took reasonable care to ascertain that the transferor had power to transfer and acted in good faith. Under Section 43 (feeding the grant by estoppel), where a person fraudulently or erroneously represents that he is authorised to transfer property and professes to transfer it for consideration, and later acquires an interest in it, the transfer operates on that interest at the transferee's option.

6. Prescription: Positive and Negative

Prescription is the effect of the lapse of time on rights. It works in two directions. Positive or acquisitive prescription creates a right in a person who has long enjoyed it: an easement acquired by peaceable and open enjoyment as of right, without interruption, for twenty years (Section 15 of the Indian Easements Act, 1882 and Section 25 of the Limitation Act, 1963; thirty years where the property belongs to the Government). Negative or extinctive prescription destroys a right that has not been asserted in time. The Limitation Act ordinarily bars only the remedy (s.3), but Section 27 goes further: at the end of the period for a suit for possession of property, the owner's right itself is extinguished.

Adverse possession combines both: the true owner's title is extinguished by s.27, and the possessor's own possessory title, which was good against all but the owner, becomes unassailable. The details are treated in Note 30.

7. Title, Ownership and Possession

The three fit together in a chain: title vests the right, ownership is the right, and possession is the fact by which it is usually exercised and displayed. Possession is also itself a root of title: a prior possessor has a better title than a later wrongdoer, and long possession ripens, through negative prescription, into ownership.

8. Title in Indian Transfer and Succession Law

Indian statutes decide exactly which fact counts as the investitive fact for each kind of transfer, and the answer is often a formality. Under Section 54 of the Transfer of Property Act, a sale of tangible immovable property of the value of one hundred rupees or more can be made only by a registered instrument; a mere contract for sale does not of itself create any interest in or charge on the property. Under Section 123, a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses. Section 17 of the Registration Act, 1908 lists the documents that must be registered, and Section 49 denies an unregistered compulsorily registrable document any effect on the property it concerns. In each case the law picks out the registered instrument as the operative fact; payment of the price, possession or an agreement are not enough on their own, which is the reasoning behind Suraj Lamp.

Succession is the most common translative event. Death divests the deceased and invests his heirs or legatees. Where there is a will, the title of the legatee is derived from an act in the law (the will, a unilateral act) coupled with an event (death); where there is none, the heirs take by act of the law under the Hindu Succession Act, 1956, the Indian Succession Act, 1925 or the personal law that applies. Either way the heir's title is derivative: he takes the deceased's rights subject to the burdens attached to them, and no better title than the deceased had.

9. Evaluation

Salmond's analysis of title is valuable because it separates three questions that ordinary speech runs together: what the right is, who holds it, and why he holds it. The vocabulary of vestitive facts gives a precise language for the 'why', and Hohfeld's distinction between operative and evidential facts adds the practical warning that a document proves a title but is not itself the title. The weakness of the scheme is that it is purely formal: it tells us how rights move, not whether a particular mode of acquisition, such as adverse possession, is just. That question belongs to the theory of property (see Note 32).

10. Frequently Asked Questions

Q. Is title the same as the title deed?
A. No. In jurisprudence title is the operative fact that vests a right, such as the sale. The title deed is only evidence of that fact. Hohfeld would call the sale an operative fact and the deed an evidential fact.

Q. What are investitive and divestitive facts?
A. Investitive facts vest a right in a person; divestitive facts take it away. Divestitive facts are either alienative (translative), transferring the right to someone else, or extinctive, destroying it. The vocabulary goes back to Bentham and was adopted by Salmond and Holland.

Q. Can a person get a better title than his seller had?
A. As a rule, no: nemo dat quod non habet (s.27 Sale of Goods Act). The exceptions protect innocent purchasers, as with a mercantile agent, a seller under a voidable contract not yet rescinded, a holder in due course, the ostensible owner (s.41 TPA) and feeding the grant (s.43 TPA).

See also: Note 28 (elements of a right), Note 30 (possession and adverse possession), Note 31 (ownership), Note 32 (property), Note 35 (obligation).