lOMoARcPSD|7131199

Transfer of Property Act notes

Property Law (National Law University, Delhi)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by gayathri pandian ([email protected])
 lOMoARcPSD|7131199

4. PROPERTY LAW
TRANSFER OF PROPERTY
Immovable Property
The provision of Section 3 of the Transfer of Property Act, 1882 does not provide for a
comprehensive definition of ‘immovable property’, however, it only mentions that ‘immovable
property’ does not include standing timber, growing crops, or grass. Thus the definition only
points out certain kinds of property to be not considered as an immovable property and further
classifies certain kind of properties which can be considered to be immovable property.
Attestation
Meaning of ‘attested’ the term ‘attested’ in this section means that a person has signed the
document by way of testimony of the fact that he was it executed. Attestation is stated in Section
3 of the Transfer of Property Act. In order to constitute valid attestation the essential conditions
are:
(1) there must be two attesting witnesses,
(2) each must have seen the executant sign or affix his thumb mark to the
instrument,
(3) each of the two attesting witnesses must have signed the instrument in the
presence of the executant.
Notice
The last paragraph of the section 3 states under what circumstances a person is said to
have notice of a fact. He may himself have actual notice or he may have constructive notice may
be imputed to him when information of the fact has been obtained by his agent in the course of
business transacted by the agent for him.
(a) Express or actual notice:
An express or actual notice of fact is a notice whereby a person acquires actual knowledge
of the fact. It must be definite information given in the course of negotiations by a person
interested in the property.
(b) Constructive Notice:
It is a notice which treats a person who ought to have known a fact, as if he actually does
know it. In other words, a person has constructive notice of all facts of which he would have
acquired actual notice had he made those enquiries which he ought reasonably to have
made.
Doctrine of Fixtures
A fixture is something fixed. In Transfer of Property Act, a fixture is a chattel which is affixed
to the soil or land. But a chattel by merely being affixed to the land will not become an immovable
property. There are two things which have to be considered for arriving at the point whether a
chattel is an immovable property. This can be called the Doctrine of Fixtures.

79 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

(1) Mode of annexation

If the chattel remains on the land by its own weight and is not affixed to the land there is
a presumption that it is only a movable property. Here the criteria is the intention to make
whether it a fixture or not. If the intention was to make it part of the land it is treated as a
fixture.
If the chattel is fixed to the land by means of nails or such things the presumption is that it
is a fixture and become an immovable property.
(2) The Purpose for Annexing
The tenure of beneficial enjoyment of the land is a necessary criterion to hold whether the
chattel is an immovable property.
If the purpose of annexation is the permanent beneficial enjoyment of the land the
presumption is that it is a fixture.
Definition of Transfer of Property (Section 5)
Transfer of Property has been defined in Section 5 of the Transfer of Property Act meaning
‘an act by which a living person conveys property, in present or in future to one or more other
living persons and “to transfer property” is to perform such act’.
What may be transferred: (Section 6)
Property of any kind may be transferred, except as otherwise provided by this Act or by any
other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, (Spec successionis),
(b) A mere right of re-entry for breach of a condition subsequent
(c) An easement,
(d) An interest in property restricted in its enjoyment to the owner personally,
(e) A right to future maintenance,
(f) A mere right to sue,
(g) A public office, nor can the salary of a public officer, whether before or after it has
become payable,
(h) Stipends allowed to military, naval, air-force and civil pensioners of the Government
and political pensions,
(i) No transfer can be made (1) in so far as it is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object or consideration within the meaning
of section 23 of the Contract Act, 1872, or (3) to a person legally disqualified to be
transferee,
(j) Nothing in this section shall be deemed to authorise a tenant having an
untransferable right of occupancy, the farmer of an estate in respect of which
default has been made in paying revenue or the lessee of an estate under the
management of a Court of Wards, to assign his interest as such tenant, farmer or
lessee.

80 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Spes Successionis
Property of any kind may be transferred, except as otherwise provided by this Act, or by
any other law for the time being in force:
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, or any other mere possibility of a
like nature, cannot be transferred.
Illustration
A has a wife B and a daughter C. C in consideration of Rs. 1,000 paid to her by A, executes
a release of her right to share in the inheritance to A’s property. A dies and C claims her one-third
share in the inheritance. B resists the claim and sets up the release signed by C. The release is
no defence, for it is a transfer of spes successions, and C is entitled to her one-third share but is
bound to bring into account the Rs. 1,000 received from her father.
Rule against alienability: (Section 10)
Section 10 of the Transfer of Property Act provides that if a property is transferred subject to
a condition or limitation restraining the transferee’s right of parting with or disposing his interest
in the property absolutely, then such a condition is void. This general rule is referred to as the
rule against inalienability. Therefore, any condition that restrains alienation is considered void.
It must be noted that a right of transfer is incidental to and inseparable from beneficial
ownership of the property. So a restraint on alienation which may be an absolute one is a void
one. Partial restraint is not void.
Exceptions
In the case of transfer of property by way of Lease there can be absolute restraint. The
lessee may be restrained from alienating the property. In England the law recognised that a
married woman can enjoy the fruits of the property only when she is in the status of a wife. She
cannot transfer the same when in the status of a married woman. It was later abolished. The rule
is still in force in India.
Repugnant conditions: (Section 11)
Repugnant conditions are those that are inconsistent with the nature of the interest
transferred. Section 11 prohibits the imposition of any condition directing the transferee to apply
or enjoy in a particular manner, any interest that is transferred absolutely in a particular manner.
Such conditions or directions are void and the transferee is entitled to receive property as if such
a condition did not exist in the first place. These conditions are inconsistent with the nature of the
interest transferred. Therefore, they are called repugnant conditions.
Illustration:
A and B enter into a sale deed for a piece of land. The terms of the sale deed provides that
the piece of land should be used for the purposes of starting a factory for the manufacture of jute
textiles only. This condition is invalid. B can enjoy the land in any manner that he chooses and
the sale deed itself continues to be valid.
The exception to this rule is that if the transferor owns another piece of immovable property,
he may, for the benefit of that property, impose a restriction on the enjoyment of that by him. In
such a case, the restriction on the enjoyment of the interest would be valid.

81 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Transfer for benefit of Unborn Persons: (Section 13)

Section 13 explains about Transfer for benefits of unborn and represents the common law
rule against remoteness of limitation. “Gift to an unborn child is unknown to Hindu Law” observed
in Tagore Vs. Tagore. Whilby Vs. Minshell the rule laid down in this case it was held that if the
property is transferred to a person, it cannot be further granted to an unborn of that unborn
child.
The Conditions required to create an interest in favor of unborn person
1. There must always be an estate for life
2. The unborn person should come into existence on or before the expiry of the prior
estate
3. The whole Remainder in the estate must be conferred on the unborn person
4. The vest of the estate must not be postponed beyond a life or lives in being and minority
of the unborn person that is to say. it cannot be deferred to a longer period then what is
necessary for him to attain Majority ( section 13 and 14 ).
Rule against perpetuity: (Section 14)
The word “perpetuity” means for (almost) ever. As a term used in the Act, it means an
inalienable and indestructible interest in the property or interest, which cannot vest till a remote
period of time.
No transfer of property can operate to create an interest which is to take effect after the
life¬time of one or more persons living at the date of such transfer, and the minority of some
person who shall be in existence at the expiration of that period, and to whom, if he attains full
age, the interest created is to belong. Cadell v. Palmer and Thelluson v. Woodford, according to
the rule every estate or interest must vest, if at all, not later than 21 years after the determination
of some life in being at the time of the creation of such estate or interest and not only must the
person to take be ascertained but the amount of his interest must be ascertained within the
prescribed period.
Transfer to class of persons: (Section 15)
If, on a transfer of property, an interest therein is created for the benefit of a class of
persons with regard to some of whom such interest fails by reason of any of the rules contained
in sections 13 and 14, such interest fails [in regard to those persons only and not in regard to
the whole class].
It has been held by the Supreme Court that although no interest could be created in favour
of an unborn person but if gift was made to a class of series of person some of whom were in
existence and some were not, it was valid with regard to the former and invalid as to the latter;
Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, (1953) SCR 232.
Direction for accumulation: (Section 17)
Where a testator issues a direction separating the income from ownership of property
so as to form a separate fund or so as to postpone the beneficial enjoyment of property is
called “Direction for Accumulation”. In Indian law, limits within which a direction may be made
for accumulation given (a) the life of the transferor, or (b) a period of 18 years from the date of
transfer.

82 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

•฀ The฀direction฀for฀accumulation฀may฀be฀express฀or฀implied฀
•฀ A฀ direction฀ for฀ accumulation฀ may฀ be฀ void฀ under฀ the฀ perpetuity฀ rule,฀ if฀ the฀
accumulation is directed for a period excess of that allowed by the perpetuity
rule.
•฀ A฀direction฀for฀accumulation฀may฀be฀void฀for฀repugnancy฀
Exceptions:
(i) The payment of the debts of the transferor or any other person taking any interest
under the transfer; or
(ii) The provision of portions for children or remoter issue of the transfer or of any
other person taking any interest under the transfer; or
(iii) The preservation or maintenance of the property transferred.
Vested and Contingent Interests
Vested and contingent interests are dealt with in the Transfer of Property Act under Sections
19 to 23.
Vested Interests: (Section 19)
In a transfer, when an interest is created in favour of a person without specifying the time
in which it is to take effect, or specifying that it shall take effect on the happening of an event
which is certain to happen, such an interest is said to be vested unless the terms of the transfer
indicate a contrary intention. It depends upon the happening of the event which must happen,
i.e. certain event. It is not defeated by the death of the transferee.
Illustration:
A may transfer ownership to B but retain a life interest in the estate. In such a case, the life
estate of A is a particular estate, as it is a specific part of the owner’s interest and the interest
of B is the remainder. The remainder is obviously what is left out after carving out the particular
estate. The remainder is seen as vested when the only obstacle between securing possession
is the existence of the particular estate. Therefore, in the above example, B’s remainder interest
is vested in him and he can take possession the moment the particular estate ends.
The primary requirement for a vested interest to take effect is that it must not be subject
to a condition precedent. It can only be subjected to a condition that relates to an event that is
certain to happen by its very nature. If there is a condition precedent and it relates to an event,
which is uncertain, then it ceases to be a vested interest and becomes a contingent one.
Contingent Interests: (Section 21)
A contingent interest is one that is created on a transfer that will take effect only on the
happening or non-happening of a specified uncertain event. As you may be aware, such an
interest is regarded as a contingent interest, one whose existence is contingent or dependent
on the occurrence of an uncertain event. If the event occurs, the interest becomes vested. If the
event does not occur, the interest does not get vested. Contingent Interest depends upon the
happening of the uncertain event.
Illustration:
‘A’ transfers property to ‘B’ for life and then to ‘C’ on the completion of college graduation.
Here, C’s interest is dependent on her graduating from college. This is a specific uncertain event.
Therefore, her interest is a contingent interest.

83 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Exception:
Where a person is entitled to an interest on attaining a certain age and is also given the
income arising from such interest before he attains the age or the income is directed to be
applied for his benefit, then the interest is not contingent.
Although it is uncertain that a person may attain that age, his interest is considered to
be vested by virtue of the above exception when the interim income is also transferred to him
absolutely.
Conditional Transfer: (Section 25)
Transfer upon an impossible condition is void. A conditional transfer may be defined to
be a transfer, the existence of which depends upon the happening or non happening of some
uncertain event by which it is either to take place or to be defeated. There are two kinds of
conditions:
(i) Condition Precedent and (ii) Condition Subsequent.
Illustration:
A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is
void.
Fulfillment of Condition Precedent: (Section 26)
Where the terms of a transfer of property impose a condition to be fulfilled before a person
can take an interest in the property, the condition shall be deemed to have been fulfilled if it has
been substantially complied with.
Illustrations:
(a) A transfers Rs.5000 to B on condition that he shall marry with the consent of C, D,
and E.E dies. B marries with the consent of C and D.B is deemed to have fulfilled
to condition.
(b) A transfers Rs.5, 000 to B on condition that he shall marry with the consent
Of C, D and E.B marries without the consent of C, D and E, but obtain their consent after
the marriage. B has not fulfilled the condition.
Doctrine of cypres
Abbreviated form of cy pres is “as far as possible.” The name of a rule employed in the
construction of such instruments as trusts and wills, by which the intention of the person who
executes the instrument is effectuated as nearly as possible when circumstances make it
impossible or illegal to give literal effect to the document.
Illustration:
A transfers Rs.1 0, 000 to B on condition that he shall marry with the consent of C, D and
E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition, as
far as possible under the Doctrine of cypres.
Law leans in favour of vesting and against divesting: (Section 26)
Law favour vesting. Section 26 provides, where a settler or testator imposes certain
condition precedent and such conditions are performed, the law leans in favour of vesting the

84 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

property to the transferee. If the condition is clear it cannot be evaded. Where the intention of the
transferor may be given effect in full it should be given effect in full. But where incapable of being
acted upon literally or where its literal performance would be unreasonable or in excess of what
the law allows, the intention of the donor or transferor is to be carried out by cypres.
Fulfillment of Condition Subsequent: (Section 29)
A condition subsequent is one which destroys or divests the right upon the happening of an
event. Condition subsequent refers to an event or state of affairs that brings an end to something
else. A condition subsequent is often used in a legal context as a marker bringing an end to one’s
legal rights or duties. A condition subsequent may be either an event or a state of affairs that
must either (1) occur or (2) fail to continue to occur.
Illustration:
A transfers Rs.500 to B to be paid to him on his attaining majority or marrying, with a
proviso that, if B dies a minor or marries without C’s consent, the Rs.500 shall go to D. B marries
when only 17 years of age without C’s consent. The transfer to D takes effect.
Rule of Acceleration: (Section 27)
The rule of acceleration applies to both immovable and movable transfer of property. It
arises on the failure of prior interest in the estate. If that prior interest is failed whether by the
death of a prior beneficiary or for any other reason, the reason for postponement goes and the
subsequent interest is accelerated.
Where the prior interest is valid and fails, due to the valid condition being not fulfilled, then
the doctrine acceleration comes into play.
Illustration:
A transfers Rs.5, 000 to B on condition that he shall execute a certain lease within 3 months
after A’s death, and if he should neglect to do so, to C. B dies in A’s lifetime. The disposition in
favour of C takes effect.
Doctrine of Election: (Section 35)
It is an exception to Latin Maxim “Nemo dat quod non habet” - “No one can convey better
title than what he has”. The principle given in Section 35 is that the person who takes the benefit
must also bear the burden.
Illustration:
A has one acre land worth Rs.1 ,00,000 in a district. A’s father B wanted to give that land
to his daughter C as a gift. B proposes that B would give Rs.1 ,50,000 to A, if A consents to give
the land to his sister C. Then it is A to elect whether to retain the property or to receive the gift of
Rs.1 ,50,000 and to transfer the land to C. however, there should not be any compulsion, threat,
coercion, undue influence against A by B. If A elects the gift of Rs.1,50,000 he is to benefit Rs.1
,50,000 and C with one acre land. This is called Doctrine of Election
In the leading case Cooper vs Cooper, the House of Lords held that since the testatrix was
not the owner of the property, her attempt to dispose of it by her will when she had no longer a
disposing power over it raised a case of election against the persons who taking under her will,
had an interest in that property. Maltiland made observation in this case is that a person who
takes the benefit under the deed must give full effect to that instrument under which he takes
the benefit.
85 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Covenants: (Section 40)

Section 40 should be read along with section 11 of the transfer of property act. An
agreement creating an obligation contained in a deed. Covenants may be used to serve the
purpose of a bond. A covenant is said to run with the land, or with the reversion, when either the
liability to perform it, or the right to take advantage of it, passes to the assignee of the land, or
the reversion, as the case may be.
Restrictive Covenant:
A restrictive covenant is a type of real covenant, a legal obligation imposed in a deed by
the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently
“run with the land” and are enforceable on subsequent buyers of the property. It is also called as
negative covenant.
Restrictive covenants may arise from many sources, and may be registered against titles or
included in leases. E.g., some covenants exist for safety purposes, such as a covenant forbidding
the construction of tall buildings in the vicinity of an airport or one restricting the height of fences
on corner lots (so as not to interfere with drivers’ sight lines).
In the leading case, Tulk vs. Moxhay, the Court granted the injunction restraining the
Moxhay-defendant and ordered not to construct the building in that vacant site.
Affirmative Covenant:
Affirmative covenant is also called a “Positive Covenant”. A positive covenant never runs
with the land either in law or in equity. Affirmative covenants are collateral. They are not annexed
to the land, and do not run with the land. The positive covenants are burden on covenanter. It is
not enforceable by law.
In Austerberry vs Corpn of Oldham, A sold his vacant land adjoining to his house to B
with a covenant that B should construct a road from the main Municipality Road to A’s door and
also should keep it in repair, for the convenience of A. B sold the site to C. C had notice of the
covenant to repair of road. But C refused to repair the road. The Court of Appeal held that C
holding that the repair covenant could not be enforced against C.
Doctrine of holding out: (Section 41)
It is also called doctrine of ostensible owner. It is also an exception to the latin maxim
“nemo dat quod non habet”.
No one can transfer to another, a right or title greater than what he himself possess. “No
man can give that which has not”. The transferor should have title to the property or authority to
transfer it. This has been enunciated in Section 7. To the rule that no person can confer a better
title than he has, exceptions are recognized on equitable grounds by the rule of estoppels the
true owner is precluded from putting forward title to the property.
Doctrine of feeding the grant by estoppels: (Section 43)
The object of the doctrine is to protect the bona fide transferee. The transferor, who has
promised more than he can perform, must make good his contract when he acquires the power
of performance. This doctrine permits the acquisition of title by means of estoppel.

86 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Illustration:
A,฀a฀Hindu,฀who฀has฀separated฀from฀his฀father฀B,฀sells฀to฀C฀fields,฀X,Y฀and฀Z,฀representing฀
that฀A฀is฀authorised฀to฀transfer฀the฀same.฀Of฀these฀fields฀Z฀does฀not฀belong฀to฀A,฀it฀having฀been฀
retained฀by฀on฀the฀partition;฀but฀on฀B’s฀dying,฀A฀as฀the฀heir฀obtains฀Z.฀C,฀not฀having฀rescinded฀the฀
contract฀of฀sale,฀may฀require฀A฀to฀deliver฀Z฀to฀him.฀
Essential conditions:
(i) The transferor should have made a fraudulent or erroneous representation that he
is authorizes to transfer the property;
(ii) The transfer is for consideration;
(iii) The transferor subsequently acquires the interest which he had professed to
transfer;
(iv) The transaction should not have been forbidden by law.
Improvements made by bonafide holder under defective title: (Section 51)
This is an option given to the real owner either to pay compensation for the improvement
or to sell his interest in the property to the bonafide holder under defective title. The important
conditions of Section 51 are:
i) The person evicted under a prior title must have been a transferee,
ii) He must have made certain improvement on the property, and
iii) Such improvements must have been made by him in good faith.
In Narayana Rao Vs. Besavarayappa, the Supreme Court held that the defendant is entitled
for Rs. 19,000 and which should be paid by the plaintiff, for the defendant’s improvements made
with good faith.
Doctrine of Lis Pendens: (Section 52)
“Lis Pendens” generally means “pendency of a suit in a Court”. It embodies the principle
that the subject matter of the suit should not be transferred to third party during the pendency
of the suit. The transferee is bound by the result of the suit in a case when such property is
transferred during the pendency of the suit.
This doctrine aims at the final adjudication of the dispute. Nothing new should be brought
in litigation. It helps to prevent multiplicity of suits.
The essential condition for the application of this doctrine is that the right to immovable
property must be directly and specifically in question in the suit. The doctrine is mainly based
upon the principles of equity, justice and good conscience. It is applicable to all cases between
co-heirs. It applies to ex-parte judgments, compromise decrees etc. It applies to both voluntary
transfers and involuntary transfers. The doctrine is contained in Section 52 of the Transfer of
Property Act. The suit must be pending in a court of competent jurisdiction. So if the suit is filed
in a court not of competent jurisdiction, it is not a suit pending as per Section 52 of the Transfer
of Property Act.
Illustration:
A has some property. He mortgaged that property to Bin 1997. B filed a case against A in
the competent court for the recovery of money in March 1999. During the pendency of the case,

87 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

A sold the said property to C. The sale transaction between A and C has been prohibited under
the Doctrine of Lis Pendens, as it affects B’s right. The leading case is Bellamy Vs. Sabine
Fraudulent Transfer: (Section 53)
Every transfer of immovable property is made with intent to defraud the creditors, the
transfer is voidable at the option of the creditor so defeated or delayed.
Doctrine of part performance: (Section 53A)
Where the contract as not registered or the transfer following upon the contract has not
been completed according to law and the transferee has in part performance of the contract,
taken possession of the property or the transferee, being already in possession, continued in
possession in part performance of the contract and has done some executes in furtherance of
the contract, then the transferor will not be allowed to evict the transferee from the property. The
equity recognized in Sec.53A is passive equity.
In Maddison Vs. Alderson it was held that “In a suit founded on such part-performance, the
defendant is really charged upon the equities resulting from the acts done in execution of the
contract and not (Within the meaning of the Statute) upon the contract itself, if such equities were
excluded, injustice of a kind which the statute cannot be thought to have had in contemplation,
would follow.”
The section has been described by Privy Council, and the Supreme Court in U N Sharma v.
Puttegowdas, as a partial importation of the English equitable doctrine of part performance. By
virtue of this section, part performance does not give rise to equity, as in English equity in two respects:
(1) there must be a written contract; and
(2) it is only available as a defence.
The following are the essential elements for the application of the doctrine:
(i) An act of part performance must be an act done in performance of the contract.
Accordingly, acts previous to the agreement do not constitute part performance,
e.g., making of arrangement for the payment of the purchase price.
(ii) The act relied on a performance must be unequivocally, and in their nature,
referable to contract as that alleged.
In Indian Law, the Supreme Court has elaborately considered the requirements for the
application of the doctrine of part performance in Govindarao Vs Devi Salal AI R (1982) SC
989.
SPECIFIC TRANSFERS
Section 54 to 137 of the Transfer of Property Act provides specific transfers such as sale,
mortgage, lease, exchange, gift, etc.
SALE
Sections 54 to 57 dealt with Sale.
Definition: (Section 54)
Sale is a Transfer of Ownership in exchange for a price paid by promised or part paid and
part provided price means money and money only.

88 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Essentials:
i) The parties
ii) The subject matter
iii) The transfer or conveyance and
iv) The price or consideration
Sale how Made:
Such transfer in the case of tangible immovable property of the value of one hundred
rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by
a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such
transfer may be made either by a registered instrument or by delivery of the property. A contract
for sale does not create any interest in or change in such property.
Rights and liabilities of buyer and seller: (Section 55)
In the absence of a contract to the contrary, the buyer and the seller of immovable property
respectively are subject to the liabilities, and have the rights, mentioned in the rules next following
or such of them as are applicable to the property sold:
Obligations of Seller:
The seller is bound -
(a) to disclose to the buyer any material defect in the property or in the seller’s title;
(b) to produce to the buyer on his request for examination all documents of title relating
to the property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the
buyer in respect to the property or the title;
(d) on payment or tender of the amount due in respect of the price, to execute a
proper conveyance of the property when the buyer tenders it to him for execution
at a proper time and place;
(e) to take as much care of the property and all documents of title between the date
of the contract of sale and the delivery of the property;
(f) to give, the buyer, or such person as he directs, such possession of the property
as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the
date of the sale.
Rights of Seller:
The seller is entitled to -
(a) to the rents and profits of the property till the ownership thereof passes to the
buyer;
(b) where the ownership of the property has passed to the buyer before payment of

89 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

the whole of the purchase-money, to a charge upon the property in the hands
of the buyer, any transferee without consideration or any transferee with notice
of the non¬payment, for the amount of the purchase-money, or any part thereof
remaining unpaid, and for interest on such amount or part from the date on which
possession has been delivered.
Obligations of Buyer:
The buyer is bound-
(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in
the property of which the buyer is aware,
(b) to payor tender, at the time and place of completing the sale, the purchase-money
to the seller or such person as he directs:
Rights of Buyer:
The buyer is entitled-
(a) to the benefit of any improvement in, or increase in value of, the property, and to
the rents and profits thereof;
(b) to accept delivery of the property
Doctrine of Marshalling (Section 56)
Right of Marshalling in claimed by subsequent purchaser in the absence of contract to the
contrary.
MORTGAGE
Sections 58 to 99 of Transfer of Property Act 1882, deals with Mortgage. A mortgage is a
transfer of an interest in specific immovable property as security for the repayment of a debt.
Definition: [Section 56 (a)]
Mortgage is a transfer of interest in specific immovable property for the purpose of securing
loan, an existing or future debt or the performance of an engagement which may give rise to a
pecuniary liability.
Mortgagor, Mortgagee and Mortgage money
The person who transfers the interest in property is called the mortgagor. The person who
receives it is named the mortgagee. Mortgage money is the amount for which the property is
transferred as a security.
Characteristics of Mortgage
Given below are the general characteristics or elements of a mortgage.
a. Interest should be transferred
b. Specific immovable property
c. Transfer for securing a debt

90 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Types of Mortgage
Mortgages are generally divided into six. They are:
1. Simple Mortgage
2. Mortgage by Conditional Sale
3. Usufructuary Mortgage
4. English Mortgage
5. Mortgage by deposit of title deeds
6. Anomalous Mortgage
Remedies for the various kinds of Mortgages
•฀ Section฀58(b)฀Simple฀mortgage฀remedies฀given฀to฀simple฀mortgage฀are฀(i)฀Money฀
suit on personal covenant and (ii) Judicial Sale
•฀ Section฀ 58(c)฀ Mortgage฀ by฀ conditional฀ sale฀ -฀ remedy฀ to฀ mortgage฀ -฀ foreclosure฀
preventing mortgage or from redeeming the property.
•฀ Section฀58฀(d)฀Usufractory฀Mortgage฀remedy฀to฀mortgage฀-฀to฀remain฀in฀possession฀
till the mortgage debt is paid.
•฀ Section฀ 58฀ (e)฀ English฀ mortgage฀ -฀ remedies฀ to฀ mortgage฀ -฀ (i)฀ Suit฀ a฀ personal฀
covenant (ii) Judicial Sale (iii) Private Sale.
•฀ Section฀59(f)฀Mortgage฀by฀deposited฀of฀title฀deeds฀-฀Remedies฀to฀mortgage฀-฀(i)฀
Suit on personal covenant (ii) Judicial Sale.
•฀ Section฀59(g)฀Anamolous฀Mortgage฀-฀it฀is฀a฀combination฀of฀two฀or฀more฀mortgages.฀
Remedy to mortgages. It depends upon the contract between the parties
Rights and Liabilities of Mortgagor
1. Section 60 - Rights of mortgagor to redeem.
2. Section 60A - Obligation to transfer to third party instead of re-transference to
mortgagor
3. Section 60-8 Right to inspection and production of document
4. Section 61- Right to redeem separately or simultaneously
5. Section 62 - Right of usufructuary mortgagor to recover possession.
6. Section 63 - Accession to mortgaged property
7. Section 63A - Improvements to mortgaged property
8. Section 64 - Renewal of mortgaged lease.
9. Section 65A - Mortgagor’s power to lease.
10. Section 66 - Waste by Mortgagor in possession.

91 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Rights and Liabilities of Mortgagee

1. Section 67 - Rights to foreclosure or sale
2. Section 67A - Mortgagee when bound to bring one suit on several mortgagees
3. Section 68 - Right to sue for mortgage-money.-
4. Section 69 - Power of sale when valid.
5. Section 69A - Appointment of receiver.
6. Section 70 - Accession to mortgaged property.
7. Section 71 - Renewal of mortgaged lease
8. Section 72 - Rights of mortgages in possession
9. Section 73 - Right to proceeds of revenue, sale or compensation on
acquisition.
10. Section 77 - Receipt in lieu of interest
Doctrine of consolidation:
A mortgagee who holds two or more distinct mortgages upon different parcels of land made
by the same mortgagor, if the mortgages are no longer redeemable at law but are redeemable
only in equity, may, within certain limits, and against certain persons, “consolidate” them, that is,
treat them as one, and decline to be redeemed as to any unless he is redeemed as to both or all.
Consolidation is founded on the equitable maxim that he who seeks equity must do equity.
The whole doctrine of consolidation, whatever may have been the particular circumstances
under which it has been applied to different cases, arises from the power of the court of equity
to put its own price upon its own interference as a matter of equitable consideration in favour of
any suitor.
Doctrine substituted security: (Section 73)
If any property is substituted in the place of original security, substituted property becomes
the security to the mortgagee.
Right of redemption:
The most important right possessed by the mortgagor is the right to redeem the mortgage.
Under this section, at any time after the principal money has become due, the mortgagor has
a right on payment or tender of the mortgage-money to require the mortgagee to reconvey
the mortgage property to him. The right conferred by this section has been called the right to
redeem and a suit to enforce this right has been called a suit for redemption. In English Law, the
mortgagor’s right to redemption contained in for Equity of redemption. This remedy is available
to the mortgagor only before the mortgagee has filed a suit for enforcement of the mortgage.
Subsequent to the filing of the suit, this remedy is not available.
Clog on Redemption:
The right of redemption is, therefore, in evadable in the sense that it cannot be denied
to the mortgagor even though he may by express contract abandon his right to redeem the
property. Equity in its insistence upon the principle that a mortgage is intended merely to afford
security to the lender has held an agreement which prevents redemption as void.

92 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Lord Lindley in Stanley v. Wilde, expounded the principle as under: “The principle is this- a
mortgage is a conveyance of land or an assignment of chattels as securities for the payment
of a debt or the discharge of some other obligation for which it is given. That is the idea of a
mortgage; and the security is redeemable on the payment or discharge of such debt or obligation,
any provision to the contrary notwithstanding. Any provision inserted to prevent redemption on
payment or performance of the debt or obligation for which the security was given, is what is
meant by a clog or fetter on the equity of redemption and is, therefore, void. It follows from this
that ‘once a mortgage always mortgage’.
Doctrine of Priority: (Section 78 & 79)
The determination of the relative rights and priorities of successive assignees of the same
or overlapping rights has been a serious problem for the Courts. When there are two or more
competing equitable interests, the equitable maxim qui prior est tempore potior est jure (he who
is earlier in time is stronger in law) applies. This means that the first in time prevails over the
others.
Madras High Court in Duraiswami Reddi v. Angappa Reddi held that the prior transferee
would be entitled to enforce his rights though his document is registered later and even if
the subsequent transferee entered into transactions bona fide without knowledge of the first
transaction. It was held that this result was implicit and was a direct consequence of the combined
operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act. It is
also observed that the right of priority of the first transferee would be postpones only if the later
transferee establishes any informative circumstances like fraud, estoppels or gross negligence.
Exceptions:
There are some exceptions to the above principle. They are
1) Fraud;
2) Misrepresentation; and
3) Gross Negligence.
Doctrine of Marshalling: (Section 81)
Marshalling refers in law to an arrangement. It is dealt within Section 81 of the Transfer of
Property Act, India. In this there will be one common debtor who has taken loan from more than
one creditor.
Suppose A being the owner of two properties mortgages both of his properties viz 1 and
2 to X. Later A mortgages 2nd property alone to Y. Here if X proceeds to realise the debt due
to him by A by way of loan from 2nd property, Y can compel X to proceed first against 1 st
property and then if the debt is not satisfied, to the 2nd property. Thus Section 81 of the Transfer
of Property Act protects the subsequent mortgagees from prior mortgagees with respect to
property mortgaged to them.
Doctrine of Contribution: (Section 82)
If several properties belonging to several persons are mortgaged to secure a debt due to
taking of a loan, the law says that each property should contribute towards the debt in proportion
to its value. This is called the doctrine of contribution.

93 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

This doctrine is contained in Section 82 of the law of Transfer of Property. This law refers to
the scheme of rateable distribution.
If some persons takes a loan from one person by mortgaging their separate properties
which may be of different values and the mortgagee/creditor realises the loan amount from
only one of the properties, the owner of such property can compel the other property owner to
contribute in proportion to its value for the amount realised by the mortgagee.
For example if the property X belongs to A and the property Y belongs to B, and A and
B jointly executes a mortgage of both the properties for securing a loan taken from C. Later C
realised the debt from property X alone. In this case B must contribute rateably in proportion to
the value of his property Y. Here A can claim contribution from B.
Doctrine of Subrogation: (Section 92)
Subrogation means substitution. If the property is subject to two or more mortgages, and
the subsequent mortgagee redeems the earlier mortgage, the doctrine of subrogation enables
a person to stand in the shoes of an earlier mortgagee whom he has paid off and claim to be
entitled to all the remedies open to that creditor respect of the securities held by him.
Subrogation is the substitution of one person in the place of another with respect to a
lawful claim, demand or right against a third party, so that the substituted party succeeds to the
rights of the other, or “stands in the shoes of” the other, with respect to the claim against the
third party. A person’s right to be subrogated to the rights of another generally arises when that
person, acting pursuant to some obligation, pays the debt of the other.
The doctrine of subrogation is based on considerations of equity and good conscience
and is granted as a means of placing the ultimate burden of the debt on the person who should
bear it.
Kinds of Subrogation:
1) Legal Subrogation - arises by the operation of law
2) Conventional Subrogation - arises by an agreement
Doctrine of Tacking: (Section 93)
The owner of an immovable property may mortgage his property to others for securing the
repayment of the loans advanced or to be advanced. Doctrine of Tacking is a special doctrine
which arises in certain type of transaction during the mortgage.
In this doctrine, the owner of an immovable property can mortgage his property to other for
securing the different advances made. Here the same property is mortgaged again and again.
Illustration:
A may mortgage his immovable property with B for a loan. He can mortgage the same
property to other people for loans from such persons. He can again mortgage the same property
subsequently with B for a fresh advancement of money. Here the rule of priority in case of
realization rests with B; but only for the first advancement he made. He can claim the second
advancement after the claims of other persons.
Charge: (Section 100)
Where immovable property of one person is, by act of parties or by operation of law, made

94 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

security for payment of money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and all provisions in respect of ‘simple
mortgage’ will apply to such charge.
Kinds of Charges:
1) Charges by act of parties and
2) Charges by operation of law
Floating Charge
A security (i.e. mortgage, lien, etc.) that has an underlying asset or group of assets which
is subject to change in quantity and value. Corporations can use floating charges and it
does not affect their ability to use the underlying asset as normal. An equitable charge on
the assets for the time being of a going concern. It attaches to the subject charged in the
varying conditions. It happens from time to time.
Specific Charge:
A floating charge becomes a specific charge when a receiver is appointed or possession is
taken of any property compromised in the charge, or a winding up commences. It is said to
“crystallize” and preferential debts thereupon become payable. Only if the company fails to
repay the loan and/or goes into liquidation, does the floating charge become “crystallized”
or frozen into a fixed charge. At that point the lender becomes the first-in-line creditor to be
able to draw against the underlying asset and/or its value to recoup its loss on the loan.
LEASE
Sections 105 to 117 dealt with lease.
Definition: (Section 105)
Lease is a transfer or right to enjoy the immovable property for a certain time, express or
implied or the perpetuing the consideration of the price paid or promised or of money a share of
crop, services or any thing or value, to be rendered periodically or on specified occasions to the
to the transferor by the transferee, who accepts the transfer on such terms.
The person who transfers the right is called the lessor and the person to whom the right
is transferred is called the lessee. Whether an instrument operates as a lease or a licence is a
matter not of words but of substance.
Section 106
In the absence of a contract or local law or usage of the contrary, a lease of immovable
property for agricultural or manufacturing purposes shall be deemed to be a lease from year
to year by its six month’s notice expiring with the end of a year of the tenancy, and a lease of
immovable property for any other purpose shall be deemed to be a lease from month to month,
terminable, by fifteen day’s notice expiring with the end of a month of the tenancy.
Rights and Liabilities of the Lessor
a) The lessor is bound to disclose to the lessee any material defect in the property,
with reference to its intended use, of which the former is and the latter is not
aware, and which the latter could not with ordinary care discover;
b) the lessor is bound on the lessee’s request to put him in possession of the
property

95 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

c) the lessor shall be deemed to contract with the lessee that, if the latter pays the
rent reserved by the lease and performs the contracts binding on the lessee, he
may hold the property during the time limited by the lease without interruption.
Tenancy - at - Will:
A lease which is silent as to duration of term would be void as a lease, but if the lessee
has taken possession, a tenancy-at-will is created. It arises by implication of law in cases where
a person takes possession of the premises with the consent of the owner. It may also arise by
an express agreement to let for an indefinite period for compensation accruing from day to day.
The tenant in such a case is not a trespasser and his only liability is to pay compensation for
use and occupation. A tenancy-at-will is terminable by either party. Ademand by the landlord for
possession is sufficient to terminate his tenancy-at-will..
Tenancy by sufferance
It arises by implication of law when a person who has been in possession under a valid
lease continues in possession even after the expiration of the lease without the consent of the
lessor. Thus, a tenant holding over after the expiration of the term is a tenant at sufferance.
A tenancy at sufferance is terminated at any time by the landlord entering without notice or
demand.
Tenancy by Holding Over:
The expression ‘holding over’ means retaining possession. There is a distinction between
a tenant continuing in possession of a property after the determination of lease without the
consent of the landlord, and a tenant doing so with the consent of the landlord. The former is
called a tenant by sufferance in common law. On the other hand, the latter is called a tenant
holding over a tenancy at will. In fact, a lessee holding over with the consent of the lessor is in
a better position than a mere tenant at will. The assent of the landlord to the continuance of the
tenancy after the determination of the tenancy agreement would create a new tenancy.
If Lessee remains in possession of the Premises or any part thereof after the expiration of
the term hereof with the express written consent of Lessor, such occupancy shall be a tenancy
from month to month at a rental in the amount of the last monthly rental plus all other charges
payable hereunder, and upon the terms hereof applicable to month-to-month tenancy.
Determination of lease: (Section 111)
A lease is determined by
(i) expiring of time,
(ii) by proper notice to quit,
(iii) by forfeiture
(iv) by merger

96 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Determination of lease by forfeiture: [Section 111 (g)]

According to the provision, a lease of an immovable property determines by forfeiture in
the following cases:
1. Breach of Express Condition
2. Disclaimer or denial of the landlord’s title
3. Insolvency of the lease
This right of determination of lease by forfeiture, as defined under Section 111 (g), however,
can be waived by the lessor.
Section 112 of the Transfer of Property Act, 1882 lays down the provision regarding the
waiver of forfeiture.
Section 117 - Exemption of leases for agricultural purposes.
Distinction between a lease and a license
(1) A lease is a transfer of an interest in land whereas the license does not create any
interest in land in favour of the licensee.
(2) A lease can sue a trespasser in his own name but a licensee cannot do so.
(3) A lease can be assigned, but a license cannot be assigned.
(4) A lease cannot be revoked until the term, but a license, subject to certain exceptions,
can be revoked.
EXCHANGE
Sections 118 to 121 dealt with exchange.
In an exchange, the ownership of one thing is transferred in consideration of the ownership
of the thing taken in exchange. When two persons mutually transfer the ownership of one thing
for the ownership of another, either thing or both things being money only, the transaction is
called an “exchange”.
A transfer of property in completion of an exchange can be made only in manner provided
for the transfer of such property by sale.
Right of party deprived of thing received in exchange: (Section 119)
If the party deprived of thing received in exchange, such other party is liable to him or any
person claiming the range for loss caused thereby, or at the option of the person so deprived, for
the return so deprived, for the return of the thing transferred, if still no possession of such other
party or his legal representatives or a transferee from him without consideration.
Rights and liabilities of the parties: (Section 120)
Rights and liabilities of the parties are precisely those provided for the parties in a transaction
of sale. Each party to an exchange has a dual capacity. He is a seller as to that which he gives
and buyer, as to which he takes.
Section 121 - On an exchange of money, each party thereby warrants the genuineness of
the money given by him.

97 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

GIFT
Sections 122 to 129 dealt with gift.
Gift is the transfer of certain existing movable or immovable property made voluntarily and
without consideration, by one person called the donor, to another, called the done, and accepted
by or on behalf of the done. A gift is complete only on acceptance by or one behalf of the done.
So there can be no unilateral gift.
Parties to the Gift:
The parties in gift are known as donor and donee. The person who transfers the property
by way of gift to another is known as donor. The person in whose favour property is transferred
by gift is known as donee.
Elements of gift
•฀ There฀must฀be฀transfer฀of฀ownership฀of฀the฀property฀
•฀ The฀transfer฀must฀be฀of฀an฀existing฀property฀
•฀ Both฀movable฀and฀immovable฀property฀can฀be฀transferred.฀
•฀ The฀transfer฀must฀be฀voluntarily.฀
•฀ The฀transfer฀must฀be฀gratuitous฀or฀without฀consideration.฀
•฀ The฀property฀must฀be฀accepted฀by฀or฀on฀behalf฀of฀the฀person฀to฀whom฀it฀is฀฀
transferred.
Revocation of Gift: (Section 126)
The following are the conditions where a gift may be revoked:
(1) that the donor and donee must have agreed that the gift shall be suspended or
revoked on the happening of a specified event;
(2) such event must be one which does not depend upon the donor’s will;
(3) the donor and donee must have agreed to the condition at the time of accepting
the gift; and
(4) the condition should not be illegal, or immoral and should not be repugnant to the
estate created under the gift. Such a gift deed can be cancelled only by resorting
to legal remedy in a competent court of law.
Onerous Gift: (Section 127)
Subject to the provisions of section 127, where a gift consists of the donor’s whole property,
the donee is personally liable for all the debts due by and liabilities of the donor at the time of the
gift to the extent of the property comprised therein. Onerous gift refers to a gift that is subject to
conditions. These conditions are imposed on the recipient of the gift. Sometimes, onerous gift
takes the nature of a sale because it involves the element of consideration. Some features of
onerous gift are:
1. The onerous gift is subject to certain charges or obligations imposed on the donee
by the donor;
2. The donee is at liberty to accept any transfer of gift which is beneficial to him/her
and refuse any gift which are onerous to the donee.
‘Onerous gift’ is a gift made subject to certain charges imposed by the donor on the donee.

98 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

The principle behind this is that he who accepts the benefit of a transaction must also accept
the burden of the same. This section, being an embodiment of a rule of equity, applies equally
to Hindus and Mahomedans. For acceptance of an onerous gift, acceptance of the gift itself is
sufficient; there need not be any separate and express acceptance of the onerous condition
also at the same time. The acceptance of the gift will carry with it the acceptance of the onerous
condition also, even though at the time of the gift the donee was not aware of such condition,
specially where the onerous condition is of a trifling nature (payment of Rs. 5 as monthly
maintenance to a certain person for life).
Universal Donee: (Section128)
The essential condition to constitute a universal donee is that the gift must consist of the
donor’s whole property. If any portion of the donor’s property, no matter whether it is moveable
or immovable, is excluded from the operation of the gift or the endowment, the donee is not a
universal donee. This concept is embodied in Section 128 of the Transfer of property Act. Where
a Mohamedan made a gift of the whole of his estate to his son and directed him to pay his debts,
the son was a universal donee and he was liable to pay all debts of the donor. There is no rule
of Mohamedan law which conflicts with the provisions of this Section.
Donatio Mortis Causa:(Section129)
A donatio mortis causa (Latin, meaning “gift on the occasion of death”) is a gill. made
during the life of the donor which is conditional upon, and takes effect upon, death. It is separate
and distinct from both a normal inter vivos gift, under which title passes immediately to the
transferee, and from a testamentary gift, which takes effect under the provisions of a properly
executed will.
There are three requirements for a valid donatio mortis causa, the gift must have been
made in contemplation of, though not necessarily in expectation of, death;
1. the subject matter of the gift must have been delivered to the donee; and
2. the gift must have been made under such circumstances as to show that the
property is to revert to the donor if the donor should recover

ACTIONABLE CLAIM
Sections 130 to 137 dealt with actionable claim
Definition: (Section 3)
Actionable claim means a claim to any debt, other than a debt secured by mortgage of
immovable property or by hypothecation or pledge of movable property.
Illustrations
(i) A owes money to B, who transfers the debt to C. B then demands the debt from A,
who, not having received notice of the transfer, as prescribed in Section 131, pays
B. The payment is valid, and C cannot sue A for the debt.
Notice to be in writing, signed: (Section 131)
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor
or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the
transferee or his agent, and shall state the name and address of the transferee.
Liability of transferee of actionable claim: (Section 132)
The transferee of an actionable claim shall take it subject to all the liabilities and equities
and to which the transferor was subject in respect thereof at the date of the transfer.
99 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

EASEMENT
Definitions:
Easement is a right which one man can have in the property of another without being
entitled to the ownership or possession thereof.
Easement: (Section 4)
An easement is a right which the owner or occupier of certain land possesses, as such,
for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and
continue to prevent something being done, in or upon, or in respect of certain other land not
his own. Dominant and servient heritages and owners The land for the beneficial enjoyment
of which the right exists is called the dominant heritage, and the owner or occupier thereof the
dominant owner; the land on which the liability is imposed is called the servient heritage, and the
owner or occupier thereof the servient owner.
Indian Law on Easements:
In India, the term “easement” has a much wider cannotation than it has under the English or
American Law. The Indian Easements Act 1882 deals with the provisions for easements. A right
of easement is a reasonable restriction on the powers of alienation of an owner of immovable
property.
Essentials of Easements:
The essential ingredients of a right of easement are as follows:
(1) There must be two tenements, the dominant and the servient;
(2) These two tenements must be owned by two different persons;
(3) The right of easement must be possessed for the beneficial enjoyment of the
dominant tenement;
(4) The right should entitle the dominant owner to do and continue to do something, or
to prevent and continue to prevent something being done, in or upon or in respect
of the servient tenement;
(5) That something must be of certain or well defined character and be capable of
forming the subject matter of a grant;
(6) The right claimed as an easement should not be so large as to amount to an
interest in the land itself, as by conferring exclusive use of the property.
Classification of Easements:
1. Affirmative and negative easements.
2. Continuous and discontinuous easement Section 5.
3. Apparent and non-apparent.
4. Permanent and limited Section 6.
5. Subordinate easements Section 9.
6. Accessory easements Section 24.
7. Easement of necessity Section 13.
8. Quasi easement Section 13.
9. Natural rights or natural easements Section 7 and
10. Customary easements Section 18.

100 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

Acquisitions of Easements
The several modes in which easements may be acquired are as follows:
1. Express grant
2. Implied grant (Sections13 & 14)
3. Imparted grant
4. Presumed grant
5. Statutory prescription (Sections 15 to 17)
6. Local Custom (Section 18)
7. Transfer of dominant tenement (Section 19) and
8. Status.
Extinction, Suspension and Revival of Easements: (Sections 37-51)
How are easements extinguished? State the circumstances under which Easements can
be revived.
Easements are extinguished in the following ways:
1. By the dissolution of the right of servient owner in his heritage except when it is
imposed by a mortgagor in accordance with Section 10 (Section 37)
2. By release by the dominant owner expressly or impliedly. It may be released as to
part only of the servient heritage (Section 38)
3. By revocation by the servient owner in exercise of a power reserved by him in this
behalf. (Section 39)
4. On expiration of the limited period, it is for a fixed period or on fulfillment of the
contingent condition, if it is contingent (Section 40)
5. On termination of necessity, if it is an easement of necessity (Section 41)
6. By its being useless (Section 42)
7. By permanent change in the dominant heritage, if the burden on the servient
owner is thereby increased and cannot be reduced by the servient owner without
interfering with the lawful enjoyment of the easement (Section 43)
8. By the permanent alteration of the servient tenement by superior force (Section
44)
9. By the complete destruction of either heritage dominant of servient (Section 45)
10. By unity of ownership i.e. when the same person becomes entitled to absolute
ownership of both the heritages (Section 46)
11. By non-enjoyment for a period of 20 years (Section 47)
Suspension of easement: (Section 49)
An easement is suspended when the dominant owner becomes entitled to possession of
the servient heritage for a limited interest therein, or when the servient owner becomes entitled
to possession of the dominant heritage for a limited interest therein.
Easements can be revived in the following ways:
1. If it is suspended easement, it revives when the cause of suspension is removed
before the right is extinguished by 20 years non enjoyment.
2. If it is extinguished under Section 46 by unity of ownership, it is revived if the grant

101 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])

 lOMoARcPSD|7131199

or bequest by which the unity of ownership was produced it set aside by a decree
of a competent court except in the case of an assessment of necessity which is
revived when the unity ceases from any other cause.
3. If it is extinguished because of destruction of either heritage, it is revived when
the destroyed heritage is restored or rebuilt on the same site before expiry of 20
years.
Quasi Easements:
Apparent and continuous easements which are necessary for the enjoyment of the dominant
tenement in the state in which it was enjoyed at the time when it was severed from the servient
tenement are called Quasi easements. Before such severance they are only the ordinary rights
of property and assume the character of rights of easement on such severance only provided
they fulfill certain specified conditions, i.e,
i) they are apparent; ii) they are continuous; iii) they are necessary for the
enjoyment of the tenement.
Easement of necessity:
Easement of necessity means an easement without which the property cannot be enjoyed
at all. It does not mean an easement which is merely necessary to reasonable enjoyment of the
property.
Customary Easements:
An easement may be acquired by virtue of a local custom. Such easements are called
“Customary Easements”
Kinds of Customary Easements are
i) Easements of pasturage,
ii) Easements of religious observances,
iii) Easements of privacy and
iv) Easements of sports and recreation.

Distinction between Licence and Easement:

1. An easement is a right appertaining to property whereas a licence is only a
personal right.
2. An easement is a right in rem but a licence is a right in personam.
3. Easement cannot be revoked at the will of the grantor, whereas licence may be
revocable by the licensor at his will.
4. An easement may be heritable, but a licence generally cannot become heritable.
5. An easement is acquired either by assertive enjoyment or by a negative covenant,
whereas a licence is a permissive right.
6. An easement may positive or negative in character, but a licence is always positive
in character.
7. An easement can be assigned, with the property to which it is annexed whereas a
licence cannot be assigned.

102 PROPERTY LAW

Downloaded by gayathri pandian ([email protected])