Codifying the Common Law of Property in India: Crystallization and Standardization as Strategies of
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Codifying the Common Law of Property in India:
Crystallization and Standardization as Strategies of
Constraint
Shyamkrishna Balganesh*
I. INTRODUCTION
Of the myriad successful and unsuccessful efforts to codify the
common law, an idea that reached its heyday in the 19th century,1 the
codification of the common law in British India remains among the most
prominent and enduring.2 In the twenty-six year span between 1861 and
1887, the British Government in India successfully enacted 15 independent
statutes covering various substantive and procedural common law areas,
applicable to the entirety of what was then British India.3
The idea of ―giving‖ India a codified version of the English common
law is commonly traced back to the oft-quoted observation of Lord
Macaulay that ―no country ever stood so much in need of a code of law as
India‖ and ―that there was never a country in which the want might be so
easily supplied.4‖ The codification exercise was thus an effort to replicate
the wisdom of the common law for a different land, context, and people, and
while directed at the needs of the local Indian population, sought to employ
the established methods and techniques of English jurisprudence. At the end
*
Assistant Professor of Law, University of Pennsylvania Law School.
1
See CHARLES M. COOK, THE AMERICAN CODIFICATION MOVEMENT: A STUDY IN ANTEBELLUM
LEGAL REFORM (1981); Morton J. Horwitz, The Rise of Legal Formalism, 19 AM. J. LEG. HIST. 251,
254-55 (1975); Mathias Reimann, The Historical School Against Codification: Savigny, Carter, and
the Defeat of the New York Civil Code, 37 AM. J. COMP. L. 95, 96 (1989); Wienczyslaw J. Wagner,
Codification of Law in Europe and the Codification Movement in the Middle of the Nineteenth
Century in the United States, 2 ST. LOUIS U.L.J. 335 (1952); George M. Hezel, The Influence of
Bentham’s Philosophy of Law on the Early Nineteenth Century Codification Movement in the United
States, 22 BUFF L. REV. 253 (1972).
2
See generally KONRAD ZWEIGERT & HEIN KÖTZ, INTRODUCTION TO COMPARATIVE LAW 228
(Tony Weird transl., 3d ed. 1998) (―[T]he relative homogeneity of the legal system throughout India,
resting as it does on the Common Law, must rank as one of the most important contributions of the
departed colonial masters to the integration of the county.‖).
3
1 WHITLEY STOKES, THE ANGLO-INDIAN CODES ix (1887).
4
Thomas Babington Macaulay, Government of India, in MACAULAY: PROSE AND POETRY 715
(G.M. Young ed. 1952).CODIFYING THE COMMON LAW OF PROPERTY 2
of the codification exercise, the colonial government remained
unequivocally proud of what it had achieved. Sir Whitley Stokes, a member
of the enacting council described it as ―the efforts of English statesmen to
confer on India the blessings of a wise, clear, and ascertainable law. 5‖
Among other things, the codification exercise in India was also meant to
serve as an example and send a strong message to those still opposed to the
very question of common law codification on both sides of the Atlantic.6
Despite recurrent allusions to the genius of the English common
law,7 the dominant theme of the Indian codificatory project was the idea of
―certainty‖ in the law. Lord Macaulay‘s directive to the Indian codifiers was
thus ―uniformity when you can have it; diversity when you must have it; but,
in all cases, certainty.8‖ The idea of certainty in the law, while facially
innocuous, formed an important strategic device during the codificatory
exercise. As an abstract ideal, certainty does provide legal audiences with a
heightened amount of clarity about the scope and applicability of the law;
yet it almost always also carries with it a level of rigidity and firmness that
support and reinforce this clarity. Rendering the law clearly ascertainable to
judges, lawyers, and litigants, would simultaneously also imbue it with a
degree of immutability.
Rigidity was however hardly an unintended (or overlooked)
consequence of the codificatory exercise. It was in some ways directly
motivational to the entire project. A loosely-framed, open-ended statute—of
the kind commonly described in the U.S. as a ―common law statute9‖—
would have provided courts and litigants with a statutory baseline, but at the
same time allowed courts to develop and adapt the law to new, unforeseen
circumstances as the common law has traditionally been known to do with
great success. Delegating such freedom to Indian courts however presented
significant risks to the British administration, both in terms of (i) their own
control over the law and its strategic use a mechanism of maintaining their
5
1 STOKES, supra note __, at ix-x.
6
Id. at x.
7
See generally FREDERICK POLLOCK, THE GENIUS OF THE COMMON LAW 74-92 (1912) (extolling
the common law‘s ability to adapt to new circumstances).
8
Id.
9
See, e.g., Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899-900 (2007)
(describing the Sherman Antitrust Act as a ―common-law statute‖); Frank Easterbrook, Statutes’
Domains, 50 U. CHI. L. REV. 533, 544 (1983).CODIFYING THE COMMON LAW OF PROPERTY 3
rule over the country, and (ii) their distrust of ―native‖ Indian judges, most
of who had little formal training in the English common law.10
Early in the codification process, Lord Macaulay, considered by
many to be the father of the India codification project, expressed the idea
that the common law process—of ―judge-made law‖—was intrinsically
unsuitable to the requirements of India, given the absence of informed public
opinion and indeed democratic accountability.11 He thus characterized the
common law in India as a ―kind of rude and capricious equity,‖ that had to
be avoided.12 Others such as Sir Henry Maine too shared this skepticism of
judicial law-making.13 This outlook towards judicial law-making would
continue through the entirety of the codification exercise, and would in some
ways justify it. During one exchange about the Indian codification exercise,
Lord Salisbury, then Secretary of State for India observed that, ―many rules
ill-suited to oriental habits and institutions…[were] indirectly finding their
way into India by means of informal legislation which is gradually effected
by judicial decisions.14‖ This to him justified the need for codified law, and
he went on to add that ―the only way of checking this process of borrowing
English rules from the recognized English authorities is by substituting for
those rules a system of codified law.15‖ Restricting the process of
incremental judicial evolution of the law was thus part and parcel of the
codification project. Rigidity was thus very much a design feature.
Clarity and rigidity thus emerged as the twin, mutually reinforcing
ideas that characterized the design of the Indian codes. One of the principal
arenas where they produced important analytical and practical
consequences, many of which continue to this day, was the area of Indian
property law, which the British codified in 1882 as part of the Transfer of
Property Act (TP Act).16 Even after its independence and adoption of a new
constitution, India continues to keep the Act in force, just as it did with a
10
For a fuller articulation of this concern, see: AN INDIAN OFFICIAL, THE JUDICIAL SYSTEM OF
BRITISH INDIA: CONSIDERED WITH ESPECIAL REFERENCE TO THE TRAINING OF THE ANGLO-INDIAN
JUDGES 10 (1852). See also ARTHUR HOBHOUSE, NATIVE INDIAN JUDGES (1883).
11
Macaulay, supra note __, at 715; KARUNA MANTENA, ALIBIS OF EMPIRE: HENRY MAINE AND
THE ENDS OF LIBERAL IMPERIALISM 93 (2010).
12
Macaulay, supra note __, at 714.
13
M.E. GRANT DUFF, SIR HENRY MAINE: A BRIEF MEMOIR OF HIS LIFE 51 (1892) (quoting Maine
as observing that ―legislation by Indian judges has all the drawbacks of judicial legislation elsewhere,
and a great many more…it is haphazard, inordinately dilatory, and inordinately expensive‖ made by
judges ―who are under the thraldom of precedents and analogies belonging to a foreign law, developed
thousands of miles away, under a different climate and for a different civilization‖).
14
1 STOKES, supra note __, at xvi-xvii (quoting Lord Salisbury).
15
Id. at xvii.
16
The Transfer of Property Act, No. 4 of 1882 [hereinafter TP Act, 1882].CODIFYING THE COMMON LAW OF PROPERTY 4
variety of colonial legislation.17 In purporting to introduce greater certainty
into the Indian law of property, the TP Act was simultaneously designed to
work as a significant restraint on the growth and expansion of the law and its
customization and adaptation to local and changing circumstances. What
differentiates this Act from other efforts of the British to curb judge-made
law in India however was the subtlety with which it developed its
mechanisms of constraint using principles that are in many ways
foundational to the working of property law. To this end, the Act deployed
two important mechanisms in tandem, which I characterize here as the
crystallization strategy and the standardization strategy.
As an in rem right that operates against an indeterminate number of
strangers, the institution of property places great reliance on ex ante
signaling and the provision of sufficient notice about the entitlement and its
contours.18 The rules of property law are thus thought to require clear and
distinctive direction for parties to organize their actions. Carol Rose refers to
such rules as ―crystals‖ and notes that these ―hard-edged rules‖ are indeed
seen as necessary to the very functioning of property, since it purports to
protect individuals‘ expectations and obligations.19 This idea, which can be
traced back to Jeremy Bentham, unquestionably pushed the codifiers of the
TP Act to make extensive use of bright-line rules—all in the purported quest
for clarity. As bright-line rules of guidance, the provisions of the Act left
courts with very little room to maneuver, flexibly interpret, and expand the
law circumstantially. While this is known to be generally true of ―rules‖ in
the law,20 the common law has for long exhibited a distinct preference for
flexible standards over rules, principally in order to enable its growth and
evolution over time. Even in relation to property, where crystalline rules are
believed to be necessary, scholars have shown that the common law very
often gravitates towards flexible, or ―muddy‖ standards in an effort to allow
itself to grown and expand incrementally.21 In codifying the common law of
property in the TP Act however, its drafters chose to reverse this preference
of the common law by adopting innumerable tightly worded rules and
17
CONST. OF INDIA, Art. 372(1) (allowing ―laws in force‖ to continue until repealed or amended).
18
See generally Henry E. Smith, Language of Property: Form, Context, and Audience, 55 STAN.
L. REV. 1105, 1108 (2003) (discussing the working of property within systems of communication).
19
Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 577 (1988).
20
See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L.
REV. 1685, 1688 (1976) (observing that the ―two great social virtues‖ of rules are ―certainty‖ and the
―restraint of official arbitrariness‖); Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379, 400
(1985).
21
See Rose, supra note __, at 580-90; John Edward Cribbet, Concepts in Transition: The Search
for a New Definition of Property, 1986 U. ILL. L. REV. 1.CODIFYING THE COMMON LAW OF PROPERTY 5
strategies of drafting, which had the immediate effect of stifling incremental
development and thereby freezing the law in time. This was a design feature
of the Act, which in turn forced courts to curtail their creativity in
interpreting the law, and often times produced near-mechanical decision-
making by courts, precisely what the codifiers were hoping for. I call this
strategy, the Act‘s ―crystallization approach,‖ given its connection to the
deployment of crystalline rules as a form of judicial constraint.
The Act‘s second strategy operated in even more subtle fashion. At
the time of codification, there existed in British India an enormous variety of
property institutions and arrangements, which were highly tailored to the
specific circumstances and needs of different regions, resources, and social
orderings.22 Many of these arrangements had their roots in customs and local
usages, and were largely alien to the English common law. As they came
into contact with the common law however (prior to codification), courts
selectively infused such customs with ideas and principles from the common
law, thereby directly contributing to their diversity, complexity, and
growth.23 To the codifiers (of the TP Act), this fecundity of customary law
had to be curtailed. Allowing it to evolve and expand threatened their use of
the legal machinery as a vertical mechanism of social control. Given the
popularity of custom-based property arrangements in many parts of the
country, it would have additionally been impossible for the British to deny
these arrangements all legality in one fell swoop, and the drafters of the TP
Act instead chose to engage its diversity and whittle it down through an
incremental strategy. Instead of invalidating arrangements that were alien to
the English common law, the Act created room for them to be brought into
the common law, but only through the use of the common law‘s core set of
established concepts and principles. This strategy, at least on the face of
things, seemed to leave courts with sufficient room to continue to recognize
customary practices and for parties to create novel property arrangements.
Yet, the process of doing so was structured to be complicated, cumbersome
and costly. And over time this pushed courts in the direction of cabining the
myriad customary arrangements that existed into one or more identified
common law categories, for sheer simplicity and expediency. The net effect
was that customary arrangements eventually came to be cabined into the
Act‘s established categories, leaving them with little room for further
evolution.
22
For an exhaustive treatment of these several customs, see SRIPATI ROY, CUSTOMS AND
CUSTOMARY LAW IN BRITISH INDIA (1911). See also Marc S. Galanter, The Displacement of
Traditional Law in Modern India, 24 J. SOC. ISSUES 65 (1968).
23
MANTENA, supra note __ at, 108 (discussing Maine‘s analysis of this phenomenon and
description of the idea as one of ―contagion‖).CODIFYING THE COMMON LAW OF PROPERTY 6
This second strategy was thus about regulating judicial innovation
and legal customization through the process of standardization, largely
analogous to the way in which the numerus clausus principle is believed to
work in property law.24 By limiting the forms of property that can be created
(or recognized), the Act in effect required all arrangements to be cabined
into established categories for them to receive the imprimatur of the law.
Whereas in the common law, the numerus clausus operates as a rule of
judicial ―self-governance‖,25 under the TP Act, it functioned as an external
restraint that was statutorily imposed. I call this strategy the Act‘s
―standardization approach‖ to curtailing both judicial creativity and parties‘
idiosyncratic (or capricious) arrangements. Much like the constraining effect
of crystallization, drafters of the Act recognized the likelihood of such
constraints developing through standardization and embraced it.
In this Article, I analyze the two principal analytical strategies that
the codifiers of the TP Act in India utilized to put in place a rigid version of
the common law—one that curtailed judges‘ freedom to develop the law
further, and ensured against their adoption of rules that the British
considered ―ill-suited to oriental habits and institutions.26‖ The effects of
these strategies continue to be felt to this day in India, when in recent times
courts have sought to update the law to the modern economic needs of
society and realized their inability to do so, given the structure and language
of the statute. Part II begins with a brief structural and conceptual overview
of the TP Act, the process through which it came to be drafted, and the
principal motivations behind its reliance on the two strategies of
crystallization and standardization. Part III unbundles the crystallization
strategy—of using rigid, precisely drafted rules in the Act. After setting out
its basics, it describes how crystallization worked to restrict the evolution of
different areas of property law, where to this day the common law in India
lags developments in other countries. Part IV analyzes the second strategy
that the TP Act embodies, namely the standardization approach. It begins by
tracing its conceptual similarity to the numerus clausus principle, shows
how the Act deploys the strategy with great success in a variety of contexts
and argues that it succeeded over time in channeling courts and litigants
towards the traditional categories of the common law, and away from the
illusory freedom to customize arrangements that the Act on its face seemed
to enable.
24
See generally Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of
Property: The Numerus Clausus Principle, 110 YALE L.J. 1, 3-4 (2000).
25
Id. at 9.
26
1 STOKES, supra note __, at xvi-xvii (quoting Lord Salisbury).CODIFYING THE COMMON LAW OF PROPERTY 7
II. THE TRANSFER OF PROPERTY ACT 1882
A. Overview and Design
Under the British, the Indian codification project began to gain
momentum around 1830, with Lord Macaulay‘s Penal Code (i.e., the Indian
Penal Code) being eventually enacted in 1860.27 While the common law of
contracts was codified in 1872,28 the law of property was pushed to the end
of the list of subjects for codification, principally owing to its complexity.
The Indian Law Commission constituted in 1870 was the first to put together
a draft bill on the subject. This early version of the bill purported to be
comprehensive in its treatment of most aspects of property law. And
principally for this reason, it came under severe criticism, being described as
―heterogeneous, ill-arranged, and ill-drawn‖ with parts of it identified as
―neither necessary nor expedient.29‖ This bill was revised in 1878, and once
again received a barrage of criticism as a result of which its drafters realized
that they would be better off making the bill ―more homogeneous,‖ which to
them meant abandoning ‗property‘ as the unifying idea behind the bill and
replacing it with the contractual idea of voluntary transfers.30 The common
law of property thus came to be codified through the device of ―transfers,‖
rather than as an independent, analytically coherent source of obligations—
and the result was the TP Act, which was formally enacted in 1882.
This focus on ―transfers‖ of property, rather than on property in the
abstract made good sense from the drafters‘ point of view. It eliminated the
need for addressing the various grounds of liability that relate to movables
and immovables (e.g., conversion, trespass) which would have in turn
necessitated a unified conception of what property means, and the
obligations of owners and non-owners in society. In addition, it also allowed
the drafters to claim with some measure of truth that they weren‘t purporting
to codify all of property law, and that the Act was therefore not exhaustive.31
On the face of things, this seemed to suggest that the law wasn‘t being fixed
in time, that significant areas were left to courts and parties to develop
through custom, usage and contract (as they had in the past), and that the Act
was driven by a measure of conceptual and normative modesty.
27
The Indian Penal Code, 1860 (Act No. 45 of 1860).
28
The Indian Contract Act, 1872 (Act No. 9 of 1872).
29
1 STOKES, supra note __, at 738.
30
Id. at 739.
31
Id. at 726 (noting how the Act ―is not, and does not purport to be, an exhaustive measure‖).CODIFYING THE COMMON LAW OF PROPERTY 8
In keeping with its focus being on transfers rather than on property,
the TP Act avoided defining the term ―property‖ in either movable or
immovable form, except for a few minor exclusions.32 Given the level of
detail with which it specified the forms, consequences, incidents, and
impermissible subjects of transfers, its failure to define property proved to
be inconsequential. A somewhat intriguing feature of the Act related to its
unified treatment of movables and immovables.33 Nowhere did the Act
distinguish in its general rules relating to transfers, between those meant for
immovable (real) and movable (personal/chattel) property. Its substantive
rules on permissible transfers, and the forms in which these were to be
effected applied with equal force to both forms.34 While this may seem
unproblematic from a conceptual level, the common law—in both the U.S.
and England—has in several significant respects treated the rules of
ownership for the two categories differently. The principal area where we
see this playing out is in relation to future interests, which the TP Act
codified in a series of elaborate provisions.35
The Act placed no restrictions whatsoever on the creation of future
interests over movables, regardless of their form, nature, or value, as long as
they complied with the general rules relating to transfers. Consumables for
instance, have long been excluded from such interests in other common law
jurisdictions; but not so under the Act.36 While the Act regulated the creation
of servitudes on immovable property—following the rule in Tulk v.
Moxhay,37 it refrained from doing so for movables, seemingly suggesting
that such servitudes were indeed permitted in India, even though the
common law (in both the U.S. and England) has for long disallowed
equitable servitudes on chattels for informational reasons.38 This latter point
raises a broader issue to be noted about the Act, namely that in its
codification (and indeed in the entire Indian codification exercise), the
British sought to merge the common law and equity into a unified system
under the statute. Since at least part of the concern with the pre-existing state
32
See TP Act, 1882, s. 3.
33
Id. ss. 5-34.
34
1 STOKES, supra note __, at 726 (noting how Chapter II of the Act contains rules relating to the
transfer of ―all property, whether moveable or immioveable‖).
35
See TP Act, 1882, s. 13-16, 18-24.
36
See THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: POLICIES AND PRINCIPLES 550 (2D ED.
2012); Erwin Esser Nemmers, Legal Relations of Owners of Present and Future Interests in
Personality—Consumables, 27 MARQ. L. REV. 82 (1943).
37
Tulk v. Moxhay, 41 Eng. Rep. 1143 (1848).
38
See Zechariah Chafee, Jr., Equitable Servitudes on Chattels, 41 HARV. L. REV. 945, 977 (1928);
MERRILL & SMITH, supra note __, at 550-1.CODIFYING THE COMMON LAW OF PROPERTY 9
of affairs lay with judges‘ selective recourse to the rules and principles of
equity, the TP Act sought to restrict these rules of equity to what was
expressly codified in the statute. Several rules that had developed in England
as part of equity jurisprudence were thus made a part of the Indian common
law during the codification. The law of servitudes was one; other examples
include the provisions relating to the equity of redemption,39 transfers
pendente lite,40 mistaken improvements,41 and good faith purchasers of
immovable property.42
In this context, mention must be made of a sister enactment that the
codifiers of the TP Act brought into law at about the same time: the Indian
Easements Act of 1882.43 As its name indicates, this Act sought to codify
the English common law of easements for India, but restricted itself in
application to immovable property.44 It dealt with the imposition,
acquisition, transfer, and termination of easements, and specifies causes of
action for interferences with them. Given that easements (and servitudes)
were highly uncommon in India at the time of the Act‘s introduction, this
Act seems to have played a principally supplemental role in the codifiers‘
broader plans for Indian property law.
Beyond its delineation of general principles, the remainder of the TP
Act dealt with six kinds of transfers in great detail: sales, mortgages, leases,
charges, exchanges, and gifts.45 One of the most innovative features of the
Act was its introduction to the common law for the first time, the idea of
public transfers of land (i.e., immovable property), an idea strongly
advocated for by Sir Henry Maine.46 Describing it as the ―greatest legal
discovery of the century,‖ Maine believed that the system of publicly
conveying immovable property, seen in most of continental Europe, and
which entailed the use of a publicly available title registration process, was
to be preferred to the English common law system of private transfers,
which compromised on the information and notice made available to
39
TP Act, 1882, s. 60.
40
Id. s. 52.
41
Id. s. 51.
42
Id. s. 53.
43
The Indian Easements Act, No. 5 of 1882.
44
1 STOKES, supra note __, at 879-80 (noting that the Act was ―mainly based on the law of
England‖ since it was ―just, equitable, and almost free from local peculiarities‖). But see T.V.
SANJIWA ROW, THE INDIAN EASEMENTS ACT 1882: (ACT V OF 1882) 4-5 (1907) (citing case law
describing the Act‘s deviation from English law). Of the two interpretations, that of Stokes is to be
preferred, given his close involvement in the drafting of the Act.
45
TP Act, 1882, ss. 35-137.
46
1 STOKES, supra note __, at 739.CODIFYING THE COMMON LAW OF PROPERTY 10
members of the public.47 While the earlier drafts of the Act (then Bill)
sought to implement the English system of private transfers, the final version
gave into Maine‘s insistence and provided that most of the transfers
described in the Act required the use of a ―written‖ and ―registered‖
instrument.48 Beyond enabling private transfers, it obligated parties to avail
themselves of the public registry system in order to perfect their rights. This
system continues to remain in force to this day. To make this system of
public conveyancing work, the British in 1877 (around the time that the final
version of the TP Act was drawn up) enacted a registration law: the Indian
Registration Act of 1877 – which enabled documents to be registered in
various district offices and to be kept on file for public notice, along the
lines Maine had suggested.49 While the original Registration Act has since
been repealed and replaced by more recent versions, the basic idea put in
place by the TP Act (at the insistence of Maine50) remains in effect in India
to this day.51
Of equal importance to understanding the structure of the TP Act is
appreciating what its drafters consciously left out of it by design. In focusing
on voluntary transfers of property, the Act left out the entire common law of
adverse possession. This certainly didn‘t mean that it remained uncodified—
for it came to be codified as part of the law relating to limitations. The
Indian Limitation Act of 1877 codified adverse possession.52 Whereas most
of the Limitation Act dealt with instances where the law through the
operation of the period of limitation, merely extinguishes the remedy and not
the right, in relation to suits for recovery of possession, the Act extinguished
the property right as a whole, making an exception principally to
accommodate the common law of adverse possession and its working as a
dual process of divestiture and investiture. The Limitation Act of 1877 has
since been replaced by a post-independence version, which not surprisingly,
retains the exact language of the earlier statute as it relates to adverse
possession.53
47
See DUFF, supra note __, at 52 (reproducing Maine‘s lecture on this issue).
48
1 STOKES, supra note __, at 739.
49
See The Indian Registration Act, No. 3 of 1877.
50
See DUFF, supra note __, at 128-30 (reproducing Maine‘s speech titled ―Registration of
Documents‖).
51
See The Indian Registration Act, No. 16 of 1908.
52
The Indian Limitation Act, No. 15 of 1877, s. 28.
53
The Indian Limitation Act, No. 36 of 1963, s. 27.CODIFYING THE COMMON LAW OF PROPERTY 11
B. Unarticulated Purposes
On the face of things, the TP Act purported to give British India a
uniform, simplified, and clear law of property transfers, one that courts and
litigants could rely on without any problem. Yet, hiding underneath this
seemingly laudable objective lay a set of strategic motivations and beliefs
that its drafters and those influential in its codification held and operated on.
These in turn would motivate the Act‘s dominant strategies of constraint.
While scholars such as Sir Frederick Pollock publicly extolled the
strengths of the common law and its ability to adapt to new circumstances,54
his counterparts who were involved in administering British India held a
somewhat different opinion of the common law, understood to be the mass
of legal rules developed incrementally (and over time) by judges, from
individual disputes. Within the context of Indian codification, deep
skepticism of the common law can be traced back to Lord Macaulay
himself, who was critical of judge-made law even in England, where he
believed ―the standard of morality [to be] higher than in almost any other
part of the world.55‖ For the common law to work, he thought it necessary
that there be ―popular institutions,‖ ―an intelligent and observant public,‖
and other devices that could ―mitigate the evils‖ of the system.56 Macaulay
saw these checks as being completely absent in India. This later Victorian
approach was in many ways a break with the common understanding
prevalent in England at the time, where the push for codification had ended
in a complete failure, reifying the dominance of the common law method of
rule development.57
In addition to their concern with the various structural problems
inherent in the working of the common law in India, critics such as
Macaulay routinely drew attention to the functional problems that had arisen
when judges in India had chosen to apply the common law to distinctively
Indian problems and questions. The result was what he characterized as a set
of arbitrary decisions, where matters were left entirely to chance. In this
understanding, ―[e]verything depends on the temper of the individual
judge.58‖ Codification was thus meant to be a project designed to avoid this
54
POLLOCK, supra note __, at 74-92.
55
See Thomas Babington Macaulay, Government of India, in MISCELLANEOUS WRITINGS 551,
570 (1889).
56
Id.
57
See MANTENA, supra note __, at 91 (noting how codification in England had been a ―notable
failure‖).
58
Macaulay, supra note __, at 569-70.CODIFYING THE COMMON LAW OF PROPERTY 12
form of ―rude and capricious equity‖ where judges had complete discretion,
and decision-making operated as a ―mere lottery.59‖ It is here important to
see that Macaulay‘s observations were rooted in both a mild skepticism of
judge-made law more generally, and a more specific realization that letting
such a process continue unimpeded in India could wreak immense havoc on
multiple fronts. The problem was thus the unavailability in India of the same
structures, checks and balances that had enabled the English common law to
work itself pure in Britain. The English jurist Frederic Harrison captured this
sentiment well, when he noted around this time that the English common
law ―depends for its practical existence on the English bench of judges and
the English bar of advocates,‖ but that to India ―such a bench and such a bar
could not possibly be supplied.60‖ The result to Harrison was codification.
Central to this thinking was thus the belief that codification was a
mechanism of controlling judge-made law and eliminating the vagaries of
the process that it entailed, a belief that undoubtedly made its way into the
codification of the TP Act as we shall see.
It is important to appreciate that controlling judicial law-making was
a question of competence as well as political strategy. Largely untrained in
the English common law, the vast majority of Indian judges were seen as
incapable of producing the wisdom seen in their English counterparts. This
problem was seen as likely to be compounded by the absence of additional
institutional safeguards that could be used to rein courts in. Added to the
question of competence however, was a strategic dimension. Allowing
courts to be creative with the law and update it to the perceived needs of the
Indian people, ran the risk of undermining the control that the British
administration had by this time very ably established in India, much of it
through complex land revenue schemes, tenancy reform initiatives, and
governance policies. Structuring the argument along institutional lines
succeeded in masking the political questions that were central to the critique
of the common law that people like Macaulay had offered.61
Henry Maine, while less critical of the common law as a general
62
matter, offered a slightly different explanation for codification, much of
which was specific to property law, and would find its way into the TP Act.
59
Id. at 569.
60
See Frederic Harrison, English School of Jurisprudence: Part III, 25 FORTNIGHTLY REV. 114,
130 (1879).
61
See John McLaren, The Uses of the Rule of Law in British Colonial Societies in the Nineteenth
Century, in LAW AND POLITICS IN BRITISH COLONIAL THOUGHT 71, 84 (Shaunnagh Dorsett and Ian
Hunter eds. 2010) (observing how the imperial agenda necessarily undercut the idea of ―judicial
independence‖).
62
MANTENA, supra note __, at 97-107.CODIFYING THE COMMON LAW OF PROPERTY 13
Maine readily recognized that at the time of codification, the British weren‘t
working from a blank slate. India had developed a rich set of customary
practices, and among them property arrangements were ubiquitous and
innumerable.63 As the country‘s leading scholar of Indian mortgage law at
the time noted, ―in India…mortgages are almost endless in form.64‖ To
Maine, the real problem was that through piece-meal application of the
English common law, these customs had come to be devoid of their
flexibility and independent normative significance, which was in turn
beginning to produce immense confusion among both judges and litigants.
Codification was thus a necessity because of this ―indiscriminate
borrowing,‖ and not necessarily because of its own superiority.65 Maine‘s
project (reflected in his writing) was deeply sympathetic to local customs
and usages, and thus insisted that the codification not merely transplant
English law to India, but that it begin by looking to the existing practices
and needs of India. This approach was borne out quite significantly in the
drafting of the TP Act, where earlier versions of the Bill were rejected
precisely because of its failure to look to ―Native forms‖ of ownership.66 In
enacting the TP Act, its drafters thus sought to codify what they saw as
―Indian‖ property law, but using ideas, concepts, and techniques from
English common law in its simplified form.
Two unarticulated purposes in the TP Act, deriving in large measure
from the British codifiers‘ general approach to the codification exercise,
were thus the idea of controlling judicial law-making, and at the same time
developing a set of laws reflective of Indian practices and needs through a
top-down process. These two purposes reinforced one another mutually.
Curbing judicial legislation was set up as the problem, which justified
legislative intervention. Likewise, developing a set of rules perceived to be
central to their overall governance and projected to the public as sufficiently
reflective of local practices could only happen if judicial tinkering were
several constrained. And to realize these purposes, the Act deployed two
important strategies, which Indian property law to this day remains hostage
to in some measure.
63
See Henry Sumner Maine, The Effects of Observation of India on Modern European Thought,
in VILLAGE COMMUNITIES IN THE EAST AND WEST 203, 222-23 (H. Holt ed. 1876).
64
RASHBEHARY GHOSE, THE LAW OF MORTGAGE IN INDIA 140 (3d ed. 1902).
65
RAYMOND COCKS, SIR HENRY MAINE: A STUDY IN VICTORIAN JURISPRUDENCE 106 (2004).
66
1 STOKES, supra note __, at 738.CODIFYING THE COMMON LAW OF PROPERTY 14
III. CRYSTALLIZATION: CONSTRAINING THROUGH CERTAINTY
A. General Idea
The rules-versus-standards debate is ubiquitous in American legal
scholarship.67 Whereas legal ―rules‖ are taken to represent situations where
the law speaks using clear, bright-line terms (e.g., speed limits), legal
―standards‖ are those where the law is more equivocal about its directive,
allowing it to be tailored to specific situations and contexts (e.g., the duty to
take reasonable care).68 While legal rules are ―celebrated for their clarity and
certainty‖ and indeed their simplicity, they nonetheless entail numerous ex
ante costs.69 Since they attempt to be precise in directing/guiding conduct,
more work often goes into their promulgation and structuring, and they often
run the risk of being either under- or over-inclusive when applied to a
specific situation. Standards are by contrast, flexible and context-sensitive,
since they are usually developed ex post.70 But while they entail lower ex
ante costs, they nonetheless involve much higher ex post costs by requiring
individual decision-makers to give content to the standard circumstantially,
before applying it.
Independent of their relative costs however, the tradeoff between
rules and standards bears a strong correlation to an important institutional
question, namely that of who (i.e., which legal institution) controls the
direction and content of a legal directive. Rules involve legislatures imbuing
them with precise normative and conceptual content, whereas standards
endow individual decision-makers (i.e., courts) with the power to develop
the directive contextually.71 Standards are thus the substance of judicial
discretion. What is critical to understand, at least for our purposes however,
is the reality that this institutional correlation is more than just a descriptive
by-product, but can indeed have important normative traction. Legal rules
have thus come to be identified as an important mechanism by which to
restrict judicial discretion, and curb what might be seen as ―official
arbitrariness,‖ by taking the power to shape a legal directive away from
67
For an exhaustive list of the voluminous literature on the topic, see Daniel A. Crane, Rules
Versus Standards in Antitrust Litigation, 64 WASH. & LEE L. REV. 49, 52-54 N.11 (2007).
68
See Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 559-62
(1992).
69
Seana Valentina Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123
HARV. L. REV. 1214, 1214 (2010).
70
Kaplow, supra note __, at 560.
71
Id. at 562-63.CODIFYING THE COMMON LAW OF PROPERTY 15
courts.72 And when the opposite is seen as necessary, i.e., when the need for
individualized decision-making is strong and the judicial process is seen as a
trustworthy and viable process, the law tends to move in the direction of
standards instead of rules. Given how they function, the choice between
rules and standards is thus imbued with a strategic dimension, one that
implicates the law‘s general preference for (and perhaps faith in) one
institutional actor over another in certain settings. The choice of formal rules
over standards is thus a device that is commonly employed when attempting
to control the actions of a subordinate strategically.73 Since law-making is
legitimately seen as within the primary function of legislatures, their
delegation of the function to courts is often accompanied by an extensive use
of rules in the delegating law.74
Recall that a large part of the impetus for the entire codification
exercise arose from the ostensible uncertainty characterizing the legal rules
that existed in India at the turn of the nineteenth century. Rendering the law
in India certain through simplification was thus the stated goal of the
codification exercise, an ideal that extended to the TP Act as well. 75 As an
ideal however, certainty was expected to work in two different ways
depending on the audience for the Act. All of the Indian codes were taken to
have two distinct sets of audiences: members of the public (i.e., prospective
litigants) and judges deciding individual cases. On the one hand, the codes
were meant to inform individuals in India of their rights and duties with
some level of ex ante certainty and simplicity. This was the idea of legal
―cognoscibility‖ that the drafters readily borrowed from Bentham. 76 In
relation to judges however—at various levels—codification was to perform
a different function. While some claimed that the codes were meant to
enable courts of justice to apply the law according to ―their true intent and
import‖ and equated this end with the idea of cognoscibility, in reality it
meant something quite different.77 The idea was hardly simply to inform
judges of what the law was, a task that presumably judges were fairly well
positioned to develop through the common law process, which conformed to
the declaratory theory of law-making. It was instead to eliminate the judicial
introduction of uncertainty in the law.78 Whereas cognoscibility for members
72
See Kennedy, supra note __, at 1688. For a fuller account of this approach, see Antonin Scalia,
The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
73
Id. at 1706.
74
Id. See also Scalia, supra note __ (making the normative case for such control).
75
See HARI SINGH GOUR, THE TRANSFER OF PROPERTY IN BRITISH INDIA CXXX (1901)
76
See BIJAY KISOR ACHARYYA, CODIFICATION IN BRITISH INDIA 4, 78, 154 (1914).
77
Id. at 153-54.
78
Id. at 142 (quoting Lord Macaulay).CODIFYING THE COMMON LAW OF PROPERTY 16
of the public operated against the backdrop of a blank slate, i.e., their not
knowing what the law was at all; in relation to judges, it was against the
baseline of courts purporting to know the law when making it. In other
words, courts were seen as one of the fundamental causes of the uncertainty
that the codification exercise was in the principal directed at solving.79
Eliminating this uncertainty—or putting it in the affirmative, introducing
certainty—necessitated restricting judges from doing what they had been
doing prior to the codification exercise.
Cognoscibility for judges was thus much more than a mere
informational exercise or a legal literacy program. Imparting to them what
the law was, implicitly entailed telling them what the law was not, and could
not be, namely, anything in the way of modifications that they introduced.
Constraint was thus critical to the cognoscibility of the law for judges. The
British drafters went to some length to ensure that this objective was
realized, and employed a somewhat unique approach to code drafting to this
end: the idea of precision drafting. While the next Sections describe how the
drafters of the TP Act came to apply precision drafting in the Act, and the
consequences that it produced, it would be appropriate here to set out the
general characteristics of the technique.
Precision drafting entails the use of technical terms that are then
endowed with specific meaning through definition and further elaboration in
the statute. In so doing, it disables judges from relying on the ordinary plain
meaning of terms, unless specifically authorized to do so by the code itself.
Macaulay described the Indian codifiers‘ reliance on precision drafting
rather well in the following observation, made on behalf of the Indian Law
Commission:
[W]e have repeatedly found ourselves under the necessity of
sacrificing neatness and perspicuity to precision, and of using harsh
expressions because we could find no other expression which
would convey our whole meaning, and no more than our whole
meaning. Such definitions standing by themselves might repel and
perplex the reader, and would perhaps be fully comprehended only
by a few students after long application. Yet such definitions are
found, and must be found, in every system of law, which aims at
accuracy. A legislator may, if he thinks fit, avoid such definitions,
and by avoiding them he will give a smoother and more attractive
appearance to his workmanship; but in that case he flinches from a
duty which he ought to perform, and which somebody must
perform. If this necessary but most disagreeable work be not
79
Id. at 146 (quoting Sir James Stephen as saying that ―the elasticity so often spoken of as a
valuable quality, if it existed, be only another name for uncertainty‖).CODIFYING THE COMMON LAW OF PROPERTY 17
performed by the lawgiver once for all, it must be constantly
performed in a rude and imperfect manner by every judge in the
empire, and will probably be performed by no two judges in the
same way.80
Of salience in Macaulay‘s observation is his implicit recognition that the
codification exercise was about communicating the complete (or ―whole‖)
meaning of the law, and that there indeed was an outer boundary to what the
law could mean. The implication was thus that the law could not expand to
mean something that its drafters didn‘t intend, and that a judge‘s attempt to
do so through individual cases was a ―rude and imperfect‖ alternative,
worthy of being avoided at all costs.81
Precision drafting in the Indian codes would however go one step
further, manifested in what was thought to be the greatest single ―advance‖
in drafting techniques at the time, namely, the use of illustrations.82 In
addition to specifying a legal rule with great precision, in several places, the
Indian codifiers sought eliminate any residual ambiguity in application by
illustrating the rule through short hypothetical cases. These illustrations were
in turn drawn from actual decided cases, and thus operated as the
codification of case law.83 The illustrations used were meant to operate as a
constraint in themselves. It was routinely observed that ―they make nothing
law which would not be law without them.84‖ Macaulay was explicit that
their use was to ensure that judges did not look to pre-statutory cases, unless
codified in an illustration.85 This served as an indirect nod in favor of the
common law, recognizing its role in having developed the law on specific
issues through individual cases, but limiting its future development after
codification. Speaking of the use of illustrations, he predicted that they will
―greatly limit the power which the Courts of Justice possess of putting their
own sense on the laws.86‖ Constraining judicial lawmaking was central to
the ideal of precision. In order to keep up with the changing requirements of
society, the codifiers further emphasized that the law was to be updated—
80
Letter from the Indian Law Commission to the Governor-General of Indian in Council, Oct.
14, 1837, in A PENAL CODE: PREPARED BY THE INDIAN LAW COMMISSIONERS AND PUBLISHED BY
COMMAND OF THE GOVERNOR-GENERAL OF INDIA 1, 6 (1837).
81
Id.
82
ACHARYYA, supra note __, at 139.
83
Id. at 142.
84
1 STOKES, supra note __, at 12; ACHARYYA, supra note __, at 139; T.L. Murray Browne, Notes
on the Codes of India, 29 QUART. J. JURIS. 197, 204 (1870).
85
See ACHARYYA, supra note __, at 142.
86
Thomas Babington Macaulay, Introductory Report upon the Indian Penal Code, in 7 THE
WORKS OF LORD MACAULAY 415, 424 (Hannah Trevelyan ed. 1866).CODIFYING THE COMMON LAW OF PROPERTY 18
not by courts in incremental fashion—but only by the legislature, through
periodic ―revisions.‖87
The constraining effects of precision drafting were hardly unnoticed.
A few notable scholars at the time of Indian codification readily argued that
it would impede the ―elasticity‖ of the common law, which enabled it to
keep up with changing times and adapt itself to new requirements and
circumstances.88 The codifiers‘ only response was to note that the elasticity
was a term being misused, and was indeed the principal cause of the
―uncertainty‖ being curbed through the very codification exercise. 89 They
were brazenly unapologetic about the constraint that codification was meant
to place on judicial discretion in the common law.
B. Precision Drafting in the Indian TP Act
Within the domain of property law, the choice between rules and
standards is often cast in substantive terms—as emanating from the demands
of the area. This reality routinely results in the institutional dimension of the
choice being underplayed, even when it motivates the choice. Property law
is thought to necessitate clear, certain, and bright-line rules, given property‘s
centrality to business transactions.90 Roscoe Pound, an otherwise outspoken
defender of the common law‘s use of standards as a mechanism of social
engineering, too evinced this idea, when he concluded that ―mechanically
applied‖ rules ―are more adapted to property‖.91 Carol Rose describes this
intuition as follows: ―I should inspect the property, record my deed, and
make my payments if I don‘t want to lose my home to unexpected physical,
legal, or financial impairments. I know where I stand and so does everyone
else, and we can all strike bargains with each other if we want to stand
somewhere else.92‖
This intuitive connection between property and bright-line rules—or
crystals—has dominated property thinking for ages now. Scholars routinely
trace it back to Bentham and Blackstone, and the idea that as in rem rights
that impact an extremely wide array of indeterminate individuals, property
87
ACHARYYA, supra note __, at 142-43.
88
See id. at 144 (quoting Lord Cockburn).
89
Id.at 146; M.D. Chalmers, Codification of Mercantile Law, 19 L.Q. REV. 10, 16 (1903).
90
See Rose, supra note __, at 577.
91
Roscoe Pound, The Theory of Judicial Decision III: A Theory of Judicial Decision for Today,
36 HARV. L. REV. 940, 951 (1923).
92
Rose, supra note __, at 577.CODIFYING THE COMMON LAW OF PROPERTY 19
rights need a greater degree of clarity than other rights, something that only
bright-line rules can provide.93 This is believed to lower information costs
and permit greater coordination among individuals in society.94
In practice however, property law in numerous contexts and pockets,
makes regular use of fuzzy (or ―muddy‖) standards.95 Much of this emerged
through common law evolution. Thus directives that began as rules over
time evolved into standards through courts‘ creation of exceptions and
discretionary modifications. Equity‘s influence on the common law of
property played a major role in this development, as did a variety of social
and economic factors exogenous to the law.96 This extensive use of
standards in property law as a practical matter thus seems to sit at odds with
the age-old belief that property is best served through bright-line, crystalline
rules—and scholars have rightly puzzled over the persistence of the intuitive
connection between property law and legal rules in the face of this reality.97
Perhaps more importantly though, the persistence of this connection in the
popular mind, often times hides the possibility that a law-maker might make
use of hard-edged rules for property doctrines principally for strategic
purposes, i.e., to enable/curtail particular institutional actors in their
interpretation and development of the law, just as the codifiers of Indian law
had sought to.
In employing the idea of precision drafting in the codification of
Indian property law—as part of the TP Act—its drafters claimed to be
simplifying the law through clear, unambiguous, rules that were drawn for
the most part from English law. In so doing, and through the use of
illustrations that were based on previous cases deemed worthy of extension
to India, they nonetheless sought to minimize courts‘ reliance on adapting
English jurisprudence to India through judicial law making. The codifiers of
the Act thus had immense confidence in their ability to make the code as
comprehensive as possible. This isn‘t to suggest that they sought to codify
all of property law, or indeed all of the law relating to property transfers, but
that what they codified, they purported to do comprehensively and
exhaustively. In practice, this attempt at comprehensiveness proved to be
mostly aspirational, as illustrated by the following areas of the Act—each of
93
Id.
94
See Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 COLUM. L.
REV. 773, 778-79 (2001).
95
Rose, supra note __, at 580.
96
Id. at 590-97.
97
See, e.g., Amnon Lehavi, The Dynamic Law of Property: Theorizing the Role of Legal
Standards, 42 RUTGERS L.J. 81, 98 (2010).CODIFYING THE COMMON LAW OF PROPERTY 20
which eventually necessitated either legislative revision or creative judicial
interpretation in order to be meet the practical demands of society and the
marketplace, or continues to lag the development of the law (on the same
point) in other common law countries. What it nonetheless succeeded in
achieving though was the effect of severely limiting judicial law-making.
1. Equitable Servitudes: Affirmative Covenants
One of the principal areas where the divide between the common law
and equity came to present the law of real property with a dilemma was the
law of equitable servitudes.98 Generally speaking, real covenants are
agreements between parties to a real property transfer under which one party
agrees to do or refrain from doing, certain specific actions. The question that
eventually emerged was whether a transferee from one of the original
parties, could be bound by the terms of the covenant even when the second
transfer did not contain the same covenant, but the transferee had sufficient
notice of its existence as between the principal parties.99 Traditional
principles of contract law would prevent its extension to the new transferee;
yet, fairness seemed to necessitate finding otherwise in circumstances when
the transferee had clear and unambiguous notice of the covenant. 100 The
landmark case of Tulk v. Moxhay,101 decided in 1848 was considered by
many at the time to have settled the question, when it concluded that ―if an
equity is attached to the property by the owner, no one purchasing with
notice of that equity can stand in a different situation from the party from
whom he purchased.102‖ While Tulk was a case in equity (decided by the
Court of Chancery), the drafters of the Indian TP Act made no distinction
between the common law and equity in relation to property.103 As a result,
they codified the rule in the Act.
98
For a general overview of the subject, see: Harlan F. Stone, The Equitable Rights and
Liabilities of Strangers to a Contract, 18 COLUM. L. REV. 291 (1918); Charles E. Clark, The American
Law Institute’s Law of Real Covenants, 52 YALE L.J. 699 (1943).
99
George L. Clark, Equitable Servitudes, 16 MICH. L. REV. 90 (1917).
100
See generally Richard A. Epstein, Notice and Freedom of Contract in the Law of Servitudes,
55 S. CAL. L. REV. 1353 (1981) (articulating the normative concerns motivating the law of real
covenants).
101
2 Phillips 774 (1848).
102
Id. at 778.
103
HARI SINGH GOUR, THE TRANSFER OF PROPERTY IN BRITISH INDIA 127 (1901) (discussing the
influences on the drafters of section 40).CODIFYING THE COMMON LAW OF PROPERTY 21
Section 40 of the Act, as it stood then, sought to deal with situations
where a ―third person‖ had ―independently of any interest in the immovable
property of another or of any easement thereon, a right to restrain the
enjoyment of the latter property or to compel its enjoyment in a particular
manner,‖ or alternatively the third person was ―entitled to the benefit of an
obligation arising out of contract and annexed to the ownership of
immovable property, but not amounting to an interest therein or easement
thereon.104‖ In such situations, the section provided that ―such right or
obligation may be enforced against a transferee with notice thereof or a
gratuitous transferee of the property affected thereby,‖ but not against others
without notice.105 The drafters of the Act were undoubtedly influenced by
Tulk, and placed great emphasis on the idea of notice, which they also
defined with great detail at the very beginning of the Act.106
What is fairly salient in the construction of this provision is the fact
that its drafters sought to parse out the idea of a servitude created by a
restrictive covenant, and distinguish it from both an easement, and an
interest (ownership or otherwise) in an immovable property. The idea of a
covenant being semi-contractual in nature is thus embedded into this
understanding. In so doing, and in purporting to foresee and cover situations
that hadn‘t fully arisen yet, the section explicitly differentiated between a
right to ―restrain‖ enjoyment and a right to ―compel‖ enjoyment, and indeed
treated the two in identical fashion. This would prove to be a problem.
A few years after Tulk, by which time section 40 had come to be
incorporated into the Act, courts in England had consciously decided to
disaggregate the holding in Tulk and to limit its application to negative
covenants, which merely sought to prevent (or restrain) a transferee with
notice.107 In specific, the rule was determined to be inapplicable to
affirmative covenants, which generally compel the transferee to ―lay out
money‖ or perform an act of an ―active character.‖108 This continues to
remain the position to this day, and shortly after later courts in England
modified the rule in Tulk, so did other common law jurisdictions.109 In most
instances where the change had occurred, it had come about through judicial
104
TP Act, 1882, s. 40.
105
Id.
106
See TP Act, 1882, s. 3 (definition of ―a person is said to have notice‖).
107
See, e.g., Haywood v. The Brunswick Permanent Benefit Building Soc‘y, 8 Q.B.D. 403
(1881); London & South Western Rly. Co. v. Gomm, 20 Ch. Div. 562 (1882).
108
Haywood, 8 Q.B.D. at 405.
109
See e.g., Guaranty Trust Co. of N.Y. v. New York & Queens County Ry. Co., 170 N.E. 887,
892 (N.Y. 1930).You can also read
