PROPERTY LAW, 2021

1. What kinds of properties cannot be transferred as per the Transfer of Property Act, 1882
Ans. The term transfer of property is defined under Section 5 of the Transfer of Property Act. According to Section 5, transfer of property means
an act by which a living person conveys property, in present or in future, to one or more living persons, or to himself and other living persons.
The term “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing in this section shall
affect any law for the time being relating to companies, associations or bodies of individuals.
Section 6 of the Transfer of Property Act deals with what may be transferred. In general, property and interests in property are transferable. This
transferability is founded on the maxim "alienation rei prefertur juri accrescendi," which translates to "Law favours alienation to accumulation."
It should be highlighted that any acts taken to restrict the owner's ability to transfer his interest in the property are therefore viewed negatively by
the law. Section 6 of the Act states that property of any kind can be transferred except otherwise provided by this act or even by any other law for
the time being in force. These exceptions are:
A. Transfer of Spes Succession- This clause states that the transfer of a slim possibility of a person to get a property is prohibited under this
section. In the case of Official Assignee, Madras v Sampath Naidu, it was observed that a mortgage executed by the heir apparent is void
even if he subsequently acquired the property as an heir.
B. Right of Re-entry- The right of re-entry indicated a right to take back possession of land that has been temporarily transferred to another
person. Clause (b) of Section 6 states that right of re-entry cannot be transferred.
C. Easement- An easement can be defined as a right that the owner or occupier of a certain piece of property has in his possession for the
purpose of enjoying that land in a beneficial manner. It may also include the right to perform, continue to perform, or prevent the
performance of certain acts. Clause c of Section 6 states that easement cannot be transferred.
D. Restricted Interests- Clause (d) of Section 6 states that a person cannot transfer anything which is restricted in its enjoyment to him.
E. Right to future Maintenance- It has been determined that a right to future maintenance is only for the benefit of the person to whom it has
been awarded, and as a result, this particular right cannot be transferred further. For example, rights of a woman to receive maintenance from
her husband under a decree of award from the court is not transferable.
F. Mere right to sue- It was decided that a simple right to sue is something that cannot be transferred in the case of Sethupathi v. Chidambaram.
The adjective "mere" in this context denotes that the transferee has no interest to sue than just a bare right. For example, A contracts to buy
goods from B. On the due date, A fails to take delivery and B sells the goods in the market at a loss of RS. 10000. B transfers the right to
recover damages to C. The transfer is invalid.
Furthermore, public officer and the salary of a public officer cannot be transferred whether before or after it is payable. In the case of Saundariya
Bai v Union of India, it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government. No transfer is
permitted if it would be inconsistent with the nature of the interest it would affect. Any transfer which is made for an unlawful object or
consideration is not permissible under this section. In the case of Shanti Prasad v Bachchi Devi, it was held that a tenant who has an
untransferable right of occupancy cannot in any way transfer his interest.

I. RULE AGAINST PERPETUITY –

Section 14 of the Transfer of Property Act of 1882 addressed the rule against perpetuity. The term Perpetuity means an indefinite period. The rule
of perpetuity is a rule against a transfer which makes the property inalienable for an indefinite period of time. Section 14 of the Transfer of
Property Act provides that in a transfer of property, vesting of interest cannot be postponed beyond the life of last preceding interest in the living
person (or persons) and the minority of the ultimate beneficiary. The essential elements of the rule against perpetuity are:
• There is a transfer of property.
• The transfer should be made in the interest of the ultimate beneficiary
• The vesting of interests in the favour of the ultimate beneficiary is preceded by life or limited interests of living persons.
• The ultimate beneficiary must come into existence before the death of the last preceding living person.
 • Vesting of interest in favour of ultimate beneficiary may be postponed only up to the life of lives of living persons plus minority or
ultimate beneficiary; but not beyond that. According to Section 13 of the Transfer of Property Act of 1882, if an interest in property is created
for the benefit of an unborn person at the time of the transfer, a prior interest must be created in respect of the same transfer and the interest
created for the benefit of such person cannot take effect unless it extends to the whole of the remaining interest of the person transferring the
property in the property to be transferred. Since immovable property cannot be transferred directly in favour of an unborn person, it can be stated
that the immovable property must vest in a living person between the date of transfer and the birth of the child. The procedure for transfer of
property to an unborn child is:
• The transferor who wants to make a transfer to an unborn child must first make a life estate in favour of a living person and then make an
absolute estate for the unborn child.
• The person in whose favour the interest is made is alive; he enjoys the property and is in possession of it.
• If the person (who was unborn on the day the life estate was created) is born during his lifetime, the title to the property will immediately
vest in him. However, he will not receive possession of the property until the life holder dies.
In the case of Girish Dutt v. Data Din, A gave her property to B for her life and then to her sons unconditionally. B did not have a child on the
date the gift was executed. The deed also states that if B had only daughters, the property would be given to them but only for their lives. If B did
not have a child then the property would entirely pass to X upon death. The deed on paper granted a life estate to B’s unborn daughters, which
violated the rule of S. 13. However, B died without having children, and X claimed the property under the terms of the gift deed. The court held
that if a transfer in favour of or for the benefit of a person is void under section 13, any subsequent transfer contained in the same deed and
intended to take effect or upon the failure of such prior transfer is also void. It was held that the transfer made for the unborn children was valid.
II. SELLER
Before Sale After Sale
1. Disclosure of material defects in the property or title. 1. Give possession to the buyer
Section 55 imposes a duty on the seller to reveal or disclose all ‘material defects’ with After the sale deed is executed, the seller must hand over possession of the
respect to both the property and seller’s title. This duty applies where the seller is aware property to the buyer. Even if the buyer has not yet furnished the promised
of the said defect and the buyer is not. The defect must also be of such a nature that consideration, the seller cannot refuse to hand over possession. The question of
despite practising due diligence, a prudent man would not be able to discover the whether the buyer can be compelled to pay the consideration to the seller has
problem in the property or title. If the seller were to deliberately neglect this duty, then arisen and has been debated heatedly. The High Courts have taken the following
it would amount to fraud or omission, on his part. views regarding the delivery of possession:
What is a material defect? It is ‘equitable’ to make handing over possession of the property by the seller,
A material defect is a factor that can affect the decision of the buyer on whether to buy conditional to the payment of the price by the buyer.
a certain property or not, once he becomes aware of it. Material defects can be of the The language of Section 55(1)(f) must be followed and interpreted at face
following types: value. If the buyer has paid the full consideration then he can acquire possession
 Something which interferes with or obstructs the enjoyment of the property; and ownership of the property through the apparatus of the courts.
 Failure to disclose a defect in the title; If the buyer asks for enforcement of specific performance with respect to the
 Non-disclosure of street alignment, lack of right of way, or non-existence of delivery of possession, when the full price has not been paid by him, the court
independent passage to the property; will require the buyer to deposit money with the court to show his intention to
 Right of way of public which cannot be discovered on first inspection of the pay the balance amount due. The court can also order the buyer to present proof
property; of his intention to make the due payment. It was observed in B Rajamani v.
Defect in title Azhar Sultana (2005), that if the buyer fails to show his intention to pay,
It is the duty of the seller to convey a good title to the buyer. However, the burden of additionally, failing to show that the amount was ready and available, it is
proof to show that there has been non-disclosure with respect to a defect in the title lies indicative of his lack of desire to fulfil the contract.
with the buyer. Nature of possession has a significant influence on the delivery of possession.
In some cases, there is a defect in both the property and the title. For example, when The seller must vacate the property, regardless of whether he himself occupies it
the property which is the subject-matter of the transfer, is illegally built on government or a tenant occupies it. The seller must also clear out any trespasser illegally
land. Consequently, the seller receives a notice of demolition for the illegally built occupying the property. However, when there is already a tenant occupying the
property. property or in the case of a usufructuary mortgage, the buyer only gains a
In Haryana Financial Corporation v. Rajesh Gupta (2010), the Court, in light of symbolic possession.
Section 55(1)(a) of the Transfer of Property Act, 1872, held that the seller ‘A’ was in 2. To covenant for title
the wrong for failing to disclose a material defect – i.e., there was no adequate passage It is the duty of the seller to deliver a good title to the buyer, free from any
to the factory. The seller would not be allowed to take advantage of this wrong to defects or problems. In order to enforce the right of specific performance
swallow up the deposited money. against the buyer, the seller must ensure that the title is beyond reasonable doubt
2. To produce the title deeds for inspection and convince the court of its authenticity. The seller must have a saleable
If the buyer asks for it, then the seller has to supply the title deed for inspection before interest in the property. Where the seller does not in fact have a saleable
the execution of the sale deed. The main objective is to satisfy the buyer that there is no interest, even if he is not guilty of fraud, he is still liable to pay damages to the
defect or problem with the title, and it would not lead to any disadvantage if the buyer buyer.
were to acquire it. The delivery of the title is usually at the place of the seller/seller’s The seller cannot represent a higher title than that which he actually owns. If the
representative or lawyer. However, the legislature can also make provisions with seller misrepresents the title, then he can be held liable to pay damages. An
respect to the place of delivery. incorrect description of the property is not covered under the covenant of title,
3. To answer relevant questions as to the title however, if the buyer finds out about it before the conveyance is executed, the
Before the sale, the seller also has the duty to answer all ‘relevant’ questions with buyer can cancel the contract or sue for damages, depending on how severely
respect to the sale. If the seller fails to answer, then the buyer has the right to rescind distorted the description is.
the contract. Answering relevant questions as to the title is the responsibility of the In Ram Swarup and Another v. Fattu (1960), it was held that the buyer need not
seller because it is his duty to ‘make out a good title in himself.’ If the information inquire into the seller’s title. Mere suspicion of the buyer with respect to
contained in relevant documents leads to doubts or questions, the seller must resolve whether the seller’s title holds good or not, does not prevent the covenant from
them upon being asked by the buyer. operating. The English law doctrine – caveat emptor, i.e. buyer beware – does
4. To execute conveyance not apply here.
Conveyance is the legal process of transferring the property from the seller to the
buyer. The conveyance is executed before the execution of the sale deed to complete 3. To deliver title deeds on receipt of the price
the process of the sale. Section 55(1)(d) stipulates that the buyer must tender the Once the consideration has been paid by the buyer to the seller, it becomes the
instrument. latter’s duty to deliver all documents relevant to the property’s title that he
In Jamshed Khodaram Israni v. Burijori Dhunjibhai (1915), the Court held that the owns/holds. The right to the deeds runs with the land, therefore, there is an
language of the plainly expressed stipulation must concretely show the intention of the absolute transfer from the seller to the buyer. The buyer needs to be careful to
parties to make their rights dependent on the observation of prescribed time limits. check if there is an unregistered mortgage with respect to the property and title
The duty to tender a conveyance and to pay the consideration at the time of the deeds, and his failure to inquire about this would amount to gross negligence.
execution is subject to a contract to the contrary. Where only a part of the property is sold, while the seller retains a portion as
5. To take reasonable care of the property and title deeds well, he is entitled to hold onto the title deeds. Where the property is sold to
The seller’s duty to take reasonable care of the property and title deeds begins before multiple buyers, the buyer of the lot of the greatest value gains the right to hold
the execution of the sale deed and continues till the delivery of property to the buyer. the title deeds. When the sale is made at different time periods, the last
Section 55 stipulates that if there is damage to the property or titles, within the time purchaser has the right to hold the title deeds. However, the holder of the title
period specified by the Section, then the buyer has the right to lower the price or deeds has the duty to furnish said documents to the other property-holders when
consideration he has to pay. The buyer can also opt to sue for damages and demand asked, at the cost of the one who asked for the deeds. The individual holding the
compensation from the seller. title also has the duty to keep the title documents in good condition, safe from
6. To pay the outgoings damage and fire.
If there are any encumbrances on the property then it is the seller’s duty to clear them
up before the execution of the sale deed. Regardless of whether the seller has
knowledge of the encumbrance or not, the seller still has to resolve it. The buyer has
the right to enforce this duty on the seller through Section 69 of the Indian Contract
Act, 1872. The seller has to pay any rents or charges accrued to the property before the
date of execution of the sale deed. The seller also has the duty to deal with public
charges, and in cases where necessary, gain the permission of the statutory authority to
make the sale.

SELLER’S RIGHTS
A seller has the following rights:-
1. The seller has the rights to rents and profits generated from the property till it is transferred to the buyer.
2. Payment of promised consideration from the buyer to the seller;
1. Rents and profits
Till the ownership is passed from the buyer to the seller, the latter is entitled to any income generated from the property, including rent collected
from tenants occupying the property. If the buyer takes possession before the completion of the sale, then he can enjoy the income from the rent.
However, the buyer is also liable to pay interest on the unpaid consideration he had promised to pay when he made the contract of sale. On the
other hand, if the ownership of the property passes to the buyer, but the seller still retains possession of the property, then the seller is not
allowed to collect interest on the purchase money. The seller cannot enjoy both possession and interest at the same time. The seller must choose
between the two – interest and possession.
2. Payment of consideration
A seller is entitled to full consideration as stipulated in the contract of sale. If the contract specifies that the payment must be made within a
certain time period, then the buyer must adhere to the said time limit. The buyer failing to pay within the time limit specified in the contract
would amount to a breach of contract on his part. In Nalamothu Venkaiya v. BS Neelakanta (2005), a contract of sale was made, and it was
stipulated that the payment must be made within a specified time. The buyer gave an oral promise, however, he did not deposit any money as an
assurance. When the buyer sued for specific performance, the court held that the oral promise did not hold weight, and the fact that he did not
make a deposit showed his lack of intention to fulfil the contract. In a case where a seller has already transferred the ownership to a buyer, but
the latter has not paid the entire consideration, a charge can be placed on the property. Even if the buyer transferred the property further, the
 charge would still exist as long as the consideration remains unpaid. The seller can also avail interest on the pending consideration from the date
of transfer of possession. The charge can be imposed only from the date the conveyance is executed. An exception to this rule of charge – is oral
sale and lease.
A seller’s charge on the pending consideration cannot be extinguished by a promissory note for unpaid money. The rule that interest and
possession are mutually exclusive still applies here. Furthermore, the seller cannot forfeit deposited money, in the case where the amount
remains unpaid, taking into consideration a contract to the contrary.
III. BUYER
Before Sale After Sale
1. Duty to disclose material facts 1. To bear the loss to property
When the buyer has knowledge or information about the nature and extent of the Once the ownership of the property has been transferred from the seller to the
seller’s interest in the property, and such knowledge or information indicates an buyer, any loss to the property as a result of the destruction, injury, or decrease in
increase in the material value of such interest, the buyer has a duty to disclose such value – not caused by the seller’s actions – is to be borne by the buyer. This rule
information to the seller. This duty applies when the buyer has reason to believe that applies even where – possession has not been delivered yet by the seller; full
the seller is unaware of said information. payment of consideration has not been furnished by the buyer. The key point to
2. To pay the price pay attention to is the passing of ownership. Once the buyer attains ownership,
The duty of the buyer to furnish the promised consideration is paramount. He must even if he does not have possession, he has to bear the losses.
pay or tender at the agreed time and place of executing the sale, and to such person as 2. To pay the outgoings
per the instructions of the seller. The duty to pay is “personal in nature” and the buyer Similar to the case of bearing loss to the property, the key point to focus on is
upon refusal of the seller to accept it is free to make a deposit with the court. ownership. Once the ownership passes to the buyer, he also gains the obligation
3. Encumbrances on the property to pay any public charges or rent payable with respect to the property. Public
Generally, it is understood that the seller has the duty to get rid of any encumbrances charges may include taxes imposed by the municipality or relevant authorities on
before he sells the property to the buyer. Before the sale deed is executed, if the buyer the property. The authorities charge tax against the property itself and not on the
finds out that there are charges/encumbrances on the property being sold, despite buyer or seller in particular. Before the sale, public charges are paid by the seller.
receiving assurances from the seller to the contrary, the buyer can retain a portion of After the sale, public charges are paid by the buyer. Upon completion of the sale,
the purchase money to offset the charges on the property. The buyer can upon finding the seller ceases to enjoy the benefits from the property, however, he gains the
out about the encumbrances before the sale, also choose to rescind the contract or sue right to be indemnified by the buyer with respect to charges imposed after the
for damages. completion of the sale.

IV. BUYER’S RIGHTS

1. Benefits of improvements
During the interval between the passing of ownership from the seller to the buyer, and payment of consideration by the buyer, if there is an
increase in the value of the property, the seller cannot demand a price higher than the one agreed upon before. Here, the buyer is entitled to the
increase in value of the property. Where there is an increase in the material value of the property, and benefits arising from rents and profits
derived from such improvement or increase – it is the buyer’s right to enjoy such benefits. The buyer can also enjoy the repairs, and
improvements made by the seller after the completion of the sale. Since the buyer has paid for the exclusive enjoyment of the property and its
associated benefits, the seller loses his right to derive benefits from the property after the sale.
2. Charge for prepaid consideration
Although the amount varies from case to case, the seller usually asks for a deposit from the buyer at the time of making the contract of sale. The
buyer can charge a lien on the property against the interest of the seller and the people claiming under him, and the interest on the deposit money
that he had paid in anticipation of delivery. This is a statutory charge and commences from the date of payment of consideration. Interest on the
prepaid amount lasts from the date of payment till the date of delivery of possession. However, the exception to this charge on prepaid
consideration: is when the sale is invalid or the buyer himself commits a default.
3. Earnest
Earnest is part of the purchase money or consideration deposited by the buyer with the seller when the agreement is made. Earnest is kept as a
security by the seller and indicates the intention of the buyer to fulfil the agreement. If the buyer commits a default then the seller has the right to
forfeit the earnest. However, mere delay on the part of the buyer to make payment does not amount to a default. If the seller commits a default
then the buyer can avail of a refund by filing a suit. The seller’s defaults include making a faulty title, not delivering possession in time, failing to
obtain any permissions necessary for the sale, etc.
In Shri Hanuman Cotton Mills v. Tata Air Craft Ltd (1969), the following observations about earnestness were made:
When the contract is concluded it must be given. It indicates the intention of the buyer to fulfil his part of the contract. It is symbolic of the
binding nature of the contract. It is part of the consideration agreed upon between the parties for carrying out the transaction. It is forfeited when
the buyer commits a default (mere delay is not a default). Unless there is a contract to the contrary, the earnest is forfeited when the buyer
commits default.

MORTGAGE AND ITS TYPES –

A mortgage has been defined under Section 58(a) of the Transfer of Property Act as “The transfer of an interest in special immovable property
for the purpose of securing the payment of money advanced or money to be advanced by way of loan, an existing or future debt, or the
performance of an engagement which may give rise to a pecuniary liability”. The transferor is called the mortgagor and the transferee is called
the mortgagee. The principle money and interest of which payment is secured for the time being are called the mortgage-money and instrument,
which may or may not be present, by which the transfer is affected is called mortgage-deed. The different types of mortgages laid out in Section
58 are:
• Simple Mortgage- A simple mortgage is the one where the mortgagee will have the right to sell the mortgaged property and use the
proceeds of the sale to help pay off the debt to the extent necessary in the event that the mortgagor defaults on the mortgage payments. This
occurs when the mortgagor binds himself personally to pay the mortgage money without actually giving up possession of the mortgaged
property. In the case of Ram Narayan Singh v Abhindra Nath, the court held that a personal liability of debtor is necessary, the absence of which
will amount to the transaction not being a mortgage.
• Mortgage by Conditional Sale- It is defined under Section 58(c). It occurs when the mortgagor purports to sell the mortgaged property
with the stipulation that the sale will become final if the mortgage money is not paid in full by a specific date or the sale will become void if the
mortgage payment is completed, or the buyer will transfer the property to the seller if the payment is made. The sale is ostensible, which means
there was no actual, it just appears to be one. It was stated in Pandit Jha v. Sheikh Ibadat Ali that if the condition for re-purchase is not embodied
in the document which effects or purports to affect the sale, the transaction cannot be regarded as a conditional mortgage. It is necessary that the
condition for sale be mentioned in the same document that effects the mortgage.
• Usufructuary Mortgage- It is defined under Section 58(d). It occurs when the mortgagor expressly or implicitly commits to giving the
mortgagee possession of the mortgaged property, authorises the mortgagee to keep possession of the property until the mortgage money is paid
in full, and directs the mortgagee to receive the rents and profits accruing from the property, in whole or in part, in lieu of interest, in payment of
the mortgage balance, or partially in lieu of interest and partially in payment of the mortgage balance. In Hikmatulla v. Imam Ali, the court held
that no time limit is fixed for the payment and if any time limit is fixed, the mortgage would not be usufructuary mortgage.
• English mortgage- It is defined under Section 58(e). The transaction is known as an English mortgage when the mortgagor commits to
paying back the mortgage money by a specific date and transfers the mortgaged property absolutely to the mortgagee with the caveat that he will
re-transfer it to the mortgagor upon payment of the mortgage money as agreed. The mortgagor has a legal interest in the property prior to the
payment date, and he has a legal right of redemption following that date. In Ramkinkar v. Satyacharan, the court held that whatever form is used,
nothing more than an interest is transferred and that interest is subject to the right of redemption.
• Mortgage by deposit of title deeds- It is defined under Section 58(f). A mortgage by deposit of title deed occurs when a person delivers to
a creditor or his agent documents of title to immovable property with the intention of creating a security interest thereon in any of the following
towns: Calcutta, Madras, Bombay, and any other town that the State Government concerned may, by notification in the Official Gazette, specify
in this regard. In K.J. Nathan v. S. Maruthi, the court held that there must be bona fide intention that possession of title deeds with the creditor is
by way of security for the money advanced by him.
• Anomalous Mortgage- It is defined under Section 58(g). An anomalous mortgage is one that does not fall under the definitions of simple
mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, or mortgage by deposit of title deeds. A combination of a
simple and usufructuary mortgage is an illustration of this type of mortgage. In Vaddiparthi v. Appalanarasimhulu, the court held that the
mortgage was usufructuary mortgage in which rents and profits were agreed to be adjusted against interest. It was also agreed that the principal
money shall be paid in five years and if it is not within this period, the mortgagee has the right to sell the property. Hence it was finally held that
the mortgage was a mixture of usufructuary and conditional mortgage and thus is an anomalous mortgage.

GIFTS AND ITS ESSENTIALS:

Gift is defined under Section 122 of the Transfer of Property Act as “Gift is the transfer of certain existing moveable or immoveable property
made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the
done acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If
the donee dies before acceptance, the gift is void.” Gifts are voluntarily made transfers. There is no consideration. The donor is the one who
transfers, while the donee is the recipient of the gift. Testamentary transfers are the ones made after the transferor's death and inter vivos transfers
are made between two people who are still alive. The laws of the Quran apply to gifts made by Muslims. The essentials of gift are:
• Parties- A gift involves two parties. The donor is the one who makes the transfer, while the donee is the recipient. To enter into a contract,
the donor must be competent. Therefore, he must be of sound mind and be of legal age. The transferor must have the right to transfer
property as a gift. The ownership rights demonstrate this. The donee need not be a person of competent age and mind. A gift to an unborn child,
a minor, or an insane person is acceptable. For a gift to be considered valid, the donee must be ascertained. Gifts given in the public's name are
invalid.
• Transfer- The transferor, i.e., the donor, must relinquish absolute ownership of the property to the transferee, i.e., the donee. The transfer
of absolute interests entails transferring all property rights and liabilities. To be able to make such a transfer, the donor must be the legal owner of
the property in question. By gift, nothing less than ownership may be transferred. The gift, like other transfers, may, however, be made subject to
certain conditions. The property must be either movable or immovable. Property which might be acquired in the future cannot be transferred.
Furthermore, the gift of spes successionis (expectation of succession) is void.
• No consideration- A gift must be gratuitous, meaning the property’s ownership must be transferred without consideration. Even a
negligible property or a minimal sum of money given by the transferee in exchange for the transfer of a large property would result in a sale or
an exchange. Consideration shall have the same meaning defined in Section 2(d) of the Indian Contract Act for this section. The consideration is
pecuniary, i.e. monetary. Mutual love and affection are not monetary considerations, so property transferred in exchange for love and affection
transferred without monetary consideration can be called a gift. A gift is a transfer of property made in exchange for the donee’s “services.”
However, a property transferred in exchange for the donee taking on the donor’s liability is not gratuitous, and thus it is not a gift because
liabilities evolve into pecuniary obligations.
• Voluntary transfer- The person making the transfer should make the transfer under free will. He or she must not be forced, coerced or
should not be under any undue influence while making the transfer. The transferor must understand and be aware of the nature of the transfer.
• Acceptance- The gift must be accepted by the donee. Property cannot be given to someone, even as a gift, without their consent. As with
non-beneficial property or onerous gifts, the donee may refuse the gift. Onerous gifts are those in which the burden or liability exceeds the
subject matter’s actual market value. As a result, accepting the gift is required. Such acceptance can be expressed or implied. The donee’s
behaviour and the surrounding circumstances can infer implied acceptance. Acceptance of the gift occurs when the donee takes possession of the
property or title deeds. Acceptance may be inferred where the property is leased by accepting the right to collect rents.
A gift can be revoked. Section 126 of the Act lists two grounds for revoking a gift. Revocation or suspension can happen in two ways,
1. Mutual agreement- A gift subject to a condition is one in which the donor and the donee mutually agree that the gift will be suspended or
revoked if an event does not depend on the donor’s will. It must include the following elements:
A. The condition must be stated explicitly.
B. The condition must be part of the same transaction; it can be stated in the gift deed itself or in a separate document that is part of the same
transaction.
C. The donor’s will must not solely determine the condition under which a gift may be revoked.
D. Such a condition must be valid under the legal provisions for conditional transfers.
E. A condition that completely prohibits the alienation of a property, for example, is void under Section 10 of the Transfer of Property Act.
F. A gift revocable at the donor’s will is void, even if such a condition is mutually agreed upon.
2. Recissions Under Section 126, a gift can be revoked for any reason its contract can be rescinded. Section 19 of the Indian Contract Act, for
example, makes a contract voidable at the option of the party whose consent was obtained by coercion, undue influence, misrepresentation, or
fraud. Thus, if a gift is not made voluntarily, i.e., the donor’s consent is obtained through fraud, misrepresentation, undue influence, or force, the
donor may revoke the gift. The option of such revocation belongs to the donor and cannot be transferred, but the donor’s legal heirs may sue for
revocation of such contract after the donor’s death.

EASEMENT AND ITS KINDS:

The Indian Easements Act of 1882 defines the term "easement." Easements are defined under Section 4 of the Act. The definition of an easement
is given as follows: “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.” An occupier or owner cannot completely enjoy their own property without this right. Hence, it is provided. In order to enjoy
his own property, the occupier also has the right to do or continue to something, or to prevent or continue to prevent something, in connection
with or in relation to some other land that is not his own. For example, “S, as the owner of a certain house, has a right of way either over his
neighbor P’s land for purposes connected with the beneficial enjoyment of the house”. This is an easement. The essentials of an easements are-
dominant heritage, servient heritage, different owners, purpose of easement is for enjoyment of property and positive or negative easement . Who
may impose an easement is covered under Section 8 of the Act. In accordance with the terms of the clause, “easement may be imposed by
anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be
imposed”. Depending on the circumstances and the extent to which one can transfer his interest, anyone with an interest in a piece of property—
not only the owner—can grant an easement over it. For the life of the lease, a tenant who has the right to sublet may grant an easement over the
leased property for the duration of the lease. The different types of leases are provided under Section 5 of the Act. They are:
 Continuous: Are those that can be enjoyed indefinitely without intervention of any human conduct or act. There is no human interference,
which adds a special quality to the property.
 Discontinuous: An easement that must be interfered with by a man for its enjoyment is referred to as discontinuous. A human act on the
servient heritage is required in this type of Easement.
 Non-apparent- The opposite of an apparent easement is a non-apparent easement. This kind of easement will not be revealed through an
inspection. A permanent sign does not exist. The right is in use but is not visible, so it is referred to as an invisible easement. For example,
P’s right may be annexed to P’ s land in order to prevent B from building on his own property
 Apparent- An apparent easement is one whose existence can be verified by a permanent sign. It is visible through careful examination and
reasonable foresight. Another name for it is an express easement. An inspection is necessary to determine the existence of a right. or
example, suppose there is a drain that runs from P's land to B's land and then to an open yard. This is an obvious easement that can be seen
with a clear inspection.

 Contingent Interest: The Transfer of Property Act addresses two different kinds of interests. They are: vested and contingent. A vested
interest is a complete interest, whereas a contingent interest is a transfer that depends on the fulfilment of a prior condition. When the
condition is fulfilled, the transfer takes place and the transfer becomes vested. In the case of Leake v. Robinson, it was decided that wherever
a condition calls for a bequest to be made "at," "upon attaining," or "after" reaching a specific age, it can be inferred that the transfer
 comprises a contingent interest. Contingent interests are covered in Section 21 of the Transfer of Property Act. It states that a person gets a
contingent interest in the property whenever, during a transfer of property, an interest therein is created in their favour that will only take
effect upon the occurrence or non-occurrence of a specific uncertain event. However, there is an exemption that specifies when a person who
has an expectancy in the ownership rights of a certain property receives any kind of income from that property for the time being until the
event occurs. This property interest is outside of the category of contingent interest.
• The transfer of property to a group or class of members having a contingent interest is covered in Section 22.
• A transfer that occurs after the occurrence of the event indicated in the transfer involving contingent interest is covered in Section 23.
• According to Section 24, property may be transferred to a group or class of people as long as they are still alive on the date stated.
The main characteristics ae:
• A contingent interest is exclusively dependent upon the fulfilment of a condition, and this is one of its key characteristics.
• The property reverts to the transferor if the transferee dies before taking possession, terminating the contingent interest.
• Contingent interest is transferable, and depending on the specifics of the contingency, it may or may not be heritable.

 Subrogation: Subrogation is a type of substitution.

Any individual mentioned in section 91 (other than the mortgagor) and co-mortgagor who has an interest in the mortgaged property and redeems
the mortgage may be substituted for the mortgagee. In other words, the person who repays the mortgage debt steps into the shoes of the
mortgagee (the creditor). This is known as subrogation or substitution of that person in place of the mortgagee for the purposes of redemption,
foreclosure, or sale. The same is covered by Transfer of Property Act under Section 92 and it was included after the Amendment Act of 1929, it
was added. The phrase “The doctrine of subrogation is a doctrine of equity jurisprudence. … It is founded on the facts and circumstances of each
particular case and on the principles of natural justice,” was used in the case of Bisseswar Prasad v. Lala Sarnam Singh. It is based on the
particular case's facts and circumstances as well as natural justice's tenets. There are two types of subrogation, as per Section 92. One is legal
subrogation, in which the mortgagee may be replaced by any other party (aside from the mortgagor) with an interest in the mortgaged property
or in the equity of redemption. The second is known as conventional, and it comes into play when a stranger to a mortgage provides money to
the mortgagor with the understanding that he will take over the rights of the mortgagee in the event that the mortgagor repays the mortgage with
that money. Additionally, it is said that the earlier mortgage must be fully discharged before the doctrine of subrogation can be used. In the event
of partial redemption, there would be no subrogation.

ACTIONABLE CLAIM
Actionable claim is defined under section 3 of the Transfer of Property Act 1882. According to section 3 of the transfer of property Act,
actionable claim means, a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of
moveable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which
the civil courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing confidential or contingent.
Actionable claims are recognised by the court of law in order to provide with relief in reference to unsecured debt or beneficial interest in
movable property.
Debt: A debt is a liquidated or certain sum of money which debtor is under an obligation to pay. It can vary from being in present and in future.
Debts can be secure and unsecured. When the debt is due in present it becomes and existing debt and when it is due in future it is called accruing
debt.
Unsecured money debts: When in a security of an immovable property, the debt is secured by a mortgage; When the security is some movable
property and that property is pledge and hypothecation; When the security is debt secured by a mortgage, hypothecation, pledge it can not be
claimed under actionable claim.
Secured debts: The debtor can have debts under certain payable conditions, which refer as conditional debt. In a similar way there is contingency
and the debts payable on the happening of a contingency it is called contingent debts.
Actionable claims include: A maintainer allowance payable at a future date, A right to the proceed of a business, A partners right to sue for an
account of a dissolved partnership, Annuities payable under deed of wakf, The price payable by a purchaser of immovable property before the
execution of the conveyance
Non actionable claims: A judgement debt or decree, A claim to compensation for a canal constructed by the government on a part of mining site
before the transfer of the mining lease and A claim to mesne profits as they are unliquidated damages
Actionable Claim can be transferred under Section 130 of Transfer of Property Act, 1882
The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing
signed by the transferor or his duly authorized agent, shall be complete and effectual upon the execution of such instruments, and thereupon all
the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the
transfer as is hereinafter provided be given or not: Provided that every dealing with the debt or other actionable claim by the debtor or other
person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such
debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as
hereinafter provided) be valid as against such transfer.
The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the
same in his own name without obtaining the transferor's consent to such suit or proceedings and without making him a party thereto.

DOCTRINE OF PART PERFORMANCE

Doctrine of Part Performance is an equitable doctrine and it is incorporated to prevent fraud and from taking illegal advantage on account of
non-registration of a document. This Doctrine is based on the maxim, Equity look at as it is done which ought to have been done. Basically the
doctrine says that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and the person
claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly
provided by the term of the contract.
Section 53A –
When any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the
contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by
the law time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons
claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly
provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no
notice of the contract or of the part performance thereof. The Doctrine of Part Performance is applicable to only written and valid contract. It is
not applicable to oral or void agreement. The contract must be in writing and signed by the transferor. The transferee has taken possession of the
property as a part performance of a contract and transferee must be ready and willing to perform his part of promise. This section is applicable
not only to the contract of sale but it is applicable to all such contracts of transfer for consideration. It has been held in Jacobs Private Limited v.
Thomas Jacob that the doctrine is intended to be used as a shield, not a sword.

DOCTRINE OF LIS PENDENS

Lis pendens means a suit under consideration of any court of law. It is an action which is pending in any court. The doctrine is enshrined under
Section 52 of the Transfer of Property Act, 1882. This section is based on the maxim �ut lite pendente nihil innovetur' which means that
nothing new should be introduced into a pending litigation. Therefore, the property which is in dispute should not either be sold or otherwise
dealt in by any party to the dispute during the pendency of the suit or proceeding.
Rights depend upon remedies.
This also holds good as regards the right to property. Since speedy and efficient remedies are of utmost importance, it has to be ensured that once
a person has initiated legal process in any court to seek remedy against any invasion on his right or threat of invasion thereto, the legal process
should not be defeated on account of private deals or any transaction, that is, transfer of property in dispute or on account of any other action of
any party to such legal process, otherwise the very purpose of seeking relief against any grievance would be meaningless and ineffective.
In order to ensure that the legal remedy remains efficient throughout the legal process, jurists had evolved a general principle known as lis
pendens basing it on the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponent.
The principle of lis pendens embodied in Section 52 of the act being a principle of public policy, no question of good faith or bona fide arises.
Such being the position the transferee from one of the parties to the suit cannot assert or claim any title or interest averse to any of the rights and
interests acquired by the another party under the decree in suit. The principle of lis pendens has the object to prevent anything done by the
transferee from operating adversely to the interest declared by the decree.
Moreover, it is also important to understand that the doctrine does not becomes eradicated when the suit is disposed. It still remains into
existence till the time when the suit is dismissed and an appeal is not yet filed, thus leaving no loophole to prejudice any party to the suit. The
explanation to the Section makes it very clear that the suit shall be deemed to have started from the date while the plaint will be supplied in the
court and shall continue to exist until the time such proceeding has been decided by final order.
Doctrine of lis pendens is based on legal maxim ut lite pendente nihil innovetur which means during a litigation nothing new should be
introduced. And the principle on which it rests is explained in Bellamy v. Sabine.
The necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigant parties, but also on those who
derive title under them by alienation made pending the suit, whether such alienus had or had not notice of the pending proceedings.

If this were not so there could be no certainty that the litigation would ever come to an end and said that:
The foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity-the necessity, that
neither party to the litigation should alienate the property in dispute so as to affect his opponent.
The doctrine of lis pendens has been fully expounded by the Privy Council in this case of Faiyaz Hussain Khan v Prag Narain[6] where their
lordships quoted with approval of Lord Justice Turner in Bellamys case. It has been held that the foundation for the doctrine does not rest upon
notice; it rests solely upon necessity- the necessity that neither party should alienate the property in dispute so that you can affect his opposite
parties.

Meaning:
The doctrine of lis pendens incorporated under Section 52 of the 1929 Act, means to say that During the pendency of any suit or proceeding
which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred
or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which
may be made therein, except under the authority of the Court and on such terms as it may impose.

The Supreme Court in Jayaram Mudaliar v. Ayyaswami,[8] and Rajendnr Singh v. Santa Singh,[9] founded the following definition:
lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court
acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.

As was observed by the Supreme Court in Jayaram's case:

Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-
matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it
and thus make the proceedings infructuous.

Essential conditions:
The Supreme Court in Amit Kumar Shaw v Farida Khatoon,[10] restated the elements required for the applicability of rule of lis pendens
stimulated from Section 52[11].

The essentials are as follows:

There must be a suit or proceedings pending in a court of competent jurisdiction;
For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the
plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of
by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by
reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.[12]

Suit or proceedings must not be collusive;

In Nagubai v. B. Sham Rao[13], Venkatarama Aiyyar, J., while explaining the distinction between a collusive and a fraudulent proceeding,
observed: In such (collusive) proceeding a claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere
mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a
proceeding is alleged to be fraudulent, what is meant that the claim made therein is untrue, but the claimant has managed to obtain the verdict of
the court in his favor and against his opponent by practicing fraud on the court. While in a collusive proceeding the contest is a mere sham, in a
fraudulent suit it is real and earnest.
Moreover, The rule of lis pendens does not apply to a collusive suit or a suit in which the decree is obtained by fraud or collusion, as held in the
case of Awadesh Prasad v. Belarani.[14]

The litigation must be one in which right to immovable property is directly and specifically in question;
There must be a transfer of property in dispute by any party to litigation;
Such transfer must affect the rights of other party that may ultimately accrue under the terms of decree or order.

Judicial Precedents on doctrine of lis pendens:

The principle on which the doctrine of lis pendens rests is explained in the leading case of Bellamy v. Sabine,[15] where Turner, L.J. observed:
It is as I think, a doctrine common to the courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be
impossible that any action or suit could be brought to a successful termination, if alienations pendente litewere permitted to prevail. The plaintiff
would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his
proceedings de novo, subject again to be defeated by the same course of proceeding.

In Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal,[16] Tek Chand, J., on the effect of judgement upon parties to alienation during
pending suit said that:
The rule of lis pendens lays down that whoever purchases a property during the pendency of an action, is held bound by the judgment that may
be made against the person from whom he derived his title (to the immovable property, the right to which is directly and specifically in question
in the suit or proceeding) even though such a purchaser was not a party to the action or had no notice of the pending litigation. The intention of
the doctrine is to invest the Court with complete control over alienations in the res which is pendente lite, and thus to render its judgment binding
upon the alienees, as if they were parties, notwithstanding the hardship in individual cases.

In KN Aswathnarayana Setty v. State of Karnataka & Ors[17], Dr. B.S. Chauhan, J. expressed the meaning of lis pendens by saying that:
The principle of lis pendens is in accordance with the equity, good conscience and justice because they rest upon an equitable and just foundation
that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is
bound by the decree just as much as he was a party to the suit. A litigating party is exempted from taking notice of a title acquired during the
pendency of the litigation.
However, it must be clear that mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject
matter of the suit. The law simply postulates a condition that the alienation will, in no manner, affect the rights of the other party under any
decree which may be passed in the suit unless the property was alienated with the permission of the Court. The transferee cannot deprive the
successful plaintiff of the fruits of the decree if he purchased the property pendente lite.

In Hardev Singh v. Gurmail Singh[18], the Supreme Court observed that

Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser
bound by the decision of the pending litigation. Thus, if during the pendency of any suit in a court of competent jurisdiction which is not
collusive, in which any right of an immovable property is directly and specifically in question, such immovable property cannot be transferred
by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit.

In T.G. Ashok Kumar v. Govindammal & Anr.[19], the Supreme Court observed that:
If the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other
hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's
title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property will be invalid and
the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is entirely allotted to some other
party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property.

In Rajender Singh and Ors. v. Santa Singh and Ors.[20], it was observed by the Supreme Court that:
The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a
dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the
ambit of the court's power to decide a pending dispute or frustrate its decree.

Alienees acquiring any immovable property during pending litigation, are held to be bound by an application of the doctrine, by the decree
passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the
litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and
jurisdiction of the Court so as to prevent the object of a pending action from being defeated.

In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors., it was held that:
The broad principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain status quo, unaffected by act of any party to the
pending litigation.

It can be concluded that the principles contained in Section 52 of Transfer of Property Act are in harmony with the principle of equity, good
conscience or justice, because they rest upon an equitable and just foundation, that it will be impossible to bring an action or suit to a successful
termination if alienations are permitted to prevail. Allowing alienations made during pendency of a suit or an action to defeat rights of a Plaintiff
will be paying premium to cleverness of a Defendant and thus defeat the ends of justice and throw away all principles of equity.[23]

The essence of this Section is that a transaction made during the pendency of a suit by a party to the suit cannot prejudice the interest of the other
party. Therefore, the sale in the instant case in favor of the review applicant will be valid to the extent it does not affect the right of the opposite
party, if any, determined or to be determined in title suit. Moreover, as Doctrine of lis pendens is in compliance with justice, equity and good
conscience, it will also be applied where Transfer of Property Act is inapplicable, with an objective to prevent the right of the deserved party
from being curbed by another.