Unit 1 - Property Law - LLB 306 - Ballb Vi Sem

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
CLASS & SEMESTER: B.A.LL.B VI SEMESTER

NAME OF THE SUBJECT: PROPERTY LAW
PAPER CODE: LLB 306
UNIT - I
TOPIC: CONCEPT OF PROPERTY & GENERAL PRINCIPLES
RELATING TO TRANSFER OF PROPERTY
FACULTY NAME : Ms. Deepanjali Kashyap

Assistant Professor, SoL
PROPERTY
 The term may have different meanings depending on the connection in which,
and the purposes for which, it is used, as indicating the intention of the parties.
 Word “property” is derived from the Latin word proprietary and the French
equivalent properties, which means a thing owned. The concept of property and
ownership are very similar to each other. However, there is a fine line that
distinguishes the two terms. It will not be incorrect to state that humans have
been aware of their rights to possess what they rightfully own for long. The term
property has been widely interpreted by various jurists such
as Salmond, Bentham and Austin.
 RC Copper V Union of India AIR 1970 SC 564 - The court, in this case,
observed that the term property includes both corporeal things such as land,
furniture and incorporeal things such as copyrights and patents. The recent trend
of the Apex court, however, has changed. Court has started viewing Property in
the light of Article 21 of the Indian constitution as liberties exist even reference
to the Property owned and possessed.

KINDS OF PROPERTY
Movable Property Immovable Property

IMMOVABLE PROPERTY
 Section 3 Transfer of Property Act - It does not include standing timber,

growing crops, or grass. This definition is neither comprehensive nor
exhaustive and only excludes certain things not falling in the domain of
immovable property.
 Section 3(26) General Clauses Act – Immovable property shall include land,
benefits to arise our of land and things attached to the earth or permanently
fastened to anything attached to the earth.
 Section 2(6) Indian Registration Act, 1908 – Immovable property includes

land, building, hereditary allowances, right to ways, lights and ferries, fisheries
or any other benefit to arise out of land or things attached to the earth but not
standing timber, growing crops or grass.

IMMOVABLE PROPERTY
Benefits to
Things attached
Land arise out of
to the earth
land
Things attached to
Things imbedded what is so Things rooted in
in the earth imbedded in the the Earth
earth
Standing
Growing Crops Growing Grass
Timber

Section 2 of Sales of Goods Act, it It includes land, benefits arise out of
includes stocks and shares, growing land and things attached to the earth.
crops, grass and things attaching to or
forming part of the land, and which are
agreed to be severed before sale or
under the contract of sale.
If the things is resting on the land If thing is fixed to land even slightly or
merely on its own weight, the is caused to go deeper in earth by
presumption is that it is movable external agency, then it is deemed to be
property, unless contrary is proved. immovable property.
If the purpose was only to enjoy the If the purpose of annexation of a thing
thing itself, then it is movable property is to confer a permanent benefit to the
even though it is fixed in the land. land to which it is attached, then it is
immovable property.

No registration is required to transfer a Transfer of immovable property requires
movable property registration of a document.
Right to worship, Royalty, a decree, Benefits to arise out of kind such as

standing timber, growing crops, grass, hereditary allowances, right of way,
etc ferries and fisheries, right to collect rent
and profits of immovable property.

TRANSFER OF PROPERTY
• “Transfer of property” defined. — (Sec 5)

In the following sections “transfer of property” means an act by which a living
person conveys property, in present or in future, to one or more other
living.
• Persons, or to himself, or to himself and one or more other living persons; and “to
transfer property” is to perform such act. In this section “living person” includes a
company or association or body of individuals, whether incorporated or not, but
nothing herein contained shall affect any law for the time being in force relating to
transfer of property to or by companies, associations or bodies of individuals.

After analyzing the language of section 5 the following point may be observed
(i) Act of Conveyance- Transfer of property is an act in which the property must be
conveyed. It is not necessary that all rights or interest in property must be
conveyed to another person. The person conveying the property is entitled to the
property wanted to be conveyed and it is conveyed to that person who has no
prior title in it.
(ii) In present or in future – Section 5 allows that the transferor may transfer the
property either with immediate effect or to be effective from a future date. It
must be remember that whether the transfer of property will take effect from
present or from future but property must exist at the time of transfer. It means
that at the time of transfer, the property must be in existence; hence no transfer
shall take effect in case of future property.

(iii) Living Persons - The property must be conveyed by one living person to
another living person, it means the transfer must be ‘Inter Vivos’ transfer.
In this section “living person” includes a human being, a company or
association or body of individuals, whether incorporated or not.
(iv) To himself or himself with on or more other persons – A living person

conveys property to one or more other living persons, or to himself, or to
himself and one or more other living persons.

TRANSFERABLE & NON-TRANSFERABLE
PROPERTY
Ingredients of Section 6
(1) Spes Successionis [sec 6(a)) – ‘Spes successionis’ means expectation of

succession. It is a possibility of getting the property in future through
succession. Section 6(a) of TP Act includes the following:
(i) The chance of an heir-apparent succeeding to an estate- The term

‘heir apparent’ implies that a living person does not have any heir. An
heir is a person who succeeds to the property of another on the death of
the later if such person dies intestate or wills his property to him.

Intestate means if a person dies leaving behind property without a valid
will. Therefore, who will be the heir can only be determined only at the
time of the death of a person. A mere chance or possibility or expectancy
of an heir succeeding to an estate is not a transferable property. If a person
transfers spes succession is, the transfer in law is void ab-initio. It does not
convey any right in favor of the transferee, even if the transferor who
transfers a chance may, in fact, become the owner of the same property in
future.
(ii) Chance of legacy – The chance of a relation obtaining a legacy is also
mere possibility and therefore cannot be transferred. This is so even if the
testator has agreed with the relation that would give him a legacy. A will or
legacy becomes operative only after the death of the testator. If a testator
has made two or more wills, then only the last will made by him be
operative. Expectancy to receive legacy is uncertain because the legatee
may or may not survive the testator and the testator may have changed the
name of legatee in his last will. That is why; the chance of a legacy has
been made non-transferable.

(iii) Any other possibility of like nature- Any other possibility is similar to
spes succession is or the chance of a relation obtaining a legacy cannot be
transferred. Any property which is merely a future uncertain possible
interest should not be made a transferable property. For example: future
wages of a servant before they are earned, possibility of winning lottery or
a prize in a competition cannot be transferred.
(2) Right of Re-entry [Sec6 (b)] – A right of re-entry for a breach of a condition
subsequent cannot be transferred to any one except the owner of the property
affected thereby.
(3) Easement [Sec6 (c)] - An easement is a right to use, or restrict the use of land
of another in some way, e.g. right of way, right of light and water etc. An
easement cannot be transferred without the property which has the benefit of it.
It means if anybody wants to transfer an easement, it can be transferred only
with along the property.

(4) Restricted interest [Sec 6 (d)] - A person having right to a property can transfer
the same either subject to a restriction or without restriction. Where property is
transferred subject to a restriction the transferee is supposed not to act contrary
to the restriction. Thus, if property is transferred to the transferee with a
restriction that it is to be enjoyed him personally, he shall have no right to
transfer such a property and if he transfers the property in violation of the
restriction, the transfer shall be void under this clause. Under this clause, a
trustee cannot alienate his office because his office is based on personal
confidence.
(5) Maintenance [Sec 6 (dd)] - “A right to future maintenance, in whatsoever

manner arising secured or determined, cannot be transferred”. A right to receive
maintenance is a personal right, although any particular property or the income
thereof may be charged with it. The right of maintenance is a personal right and
it is not transferable. But this right can be transfer in case of any arrears of
maintenance but as to future maintenance it is not valid.

(6) Mere right to sue [Sec6 (e)] - A mere right to sue cannot be transferred. To sue
means to make a legal claim or to take legal proceedings against any person.
Claims for damages for breach of contract or for tort, for suing an agent for
accounts are all mere rights to sue and cannot be transferred. But if right to sue
has merged in a decree, the right can be transferable.
(7) Public Office [Sec6 (f)] – A public office cannot be transferred, nor can the
salary of a public officer, whether before or after it has become payable. The
prohibition on transfer of public office and on transfer of the salary of a public
officer is imposed on ground of public policy. A person is chosen to hold a
public office for qualities personal to him and if he were allowed to transfer it,
there is likelihood that the public duties may not be duly discharged and as well
salary is given to him for purpose of upholding its dignity and proper
performance of its duties, it cannot be transferable.

(8) Pensions [Sec6 (g)] – Under this clause, stipend allowed to military and civil
pensioners of Government and political pensions cannot be transferred. Here
pension means a stipend granted not in respect of any right of office but on
account of past services of particulars merit.
(9) Nature of Interest [Sec6 (h)] – This clause deals with three classes of cases:
(i) Opposed to the nature of business – there are things which from their very
nature are not transferable. It includes, res communes, i.e. things of which
no one in particular is the owner or also known as res nullius i.e. thing
without an owner) such as air, water of rivers etc. These things from their
very nature are not transferable. Similarly, res extra commericum (i.e. things
which cannot be the subject of commerce) e.g. property dedicated to a idol
cannot be transferred.

(ii) Unlawful object or consideration – A property otherwise transferable
become non transferable when the object or the consideration of the
transfer is unlawful. Thus a house given on rent for the purpose of
gambling or prostitution being immoral or opposed the public policy is
invalid.
(iii)A person legally disqualified to be a transferee – A transfer cannot be made
in favor of a person who is disqualified to be transferee. U/S 36 of Transfer
of property act, a judge, a legal practitioner or an officer connected with
courts of justice are disqualified for purchasing any actionable claims.
(10)Untransferable Interest [Sec6 (i)] – The general rule is that leasehold are
transferable but this clause makes an exception to this rule and declares certain
interest untransferable. 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 cannot assign or transfer their interest in the
holding.

RULE AGAINST PERPETUITY
Rule against perpetuity (Section 14) — 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.
(1) The vesting of property absolutely cannot be postponed beyond the life-time of
any one or more persons living at the date of transfer, i.e. there must be no
internal between the termination of the precedent interest of a living person and
the vesting of the interest in the unborn person.
(2) The unborn person takes a vested interest at birth, immediately on the
termination of prior interest, however the vesting of interest in favor of him may
be postponed until he attains full age i.e. the age of majority. Sec 14 allows the
delaying of the vesting during the minority period of a person who is not born at
the date of the transfer.

(3) Perpetuity Period – It is maximum period during which the property may be
rendered inalienable. The extent of perpetuity period is the life of any person
who is alive at the movement when the deed which creates the interest begins to
operate, plus period of 18 years from the time when such designated person
dies.
(4) While examining the transfer of property under sec 14, the court looks at the
possible events according to the terms of the deed, and not the actual events on
the date of transfer.
Exceptions to the rule against perpetuity

1. Vested interests are not affected by the rule, for when an interest has once
existed, it cannot be bad for remoteness.
2. Gifts to charities do not fall within the rule, thus, in case of a transfer for the
benefit of the public in advancement of religion, knowledge, health, commerce
etc., the rule does not apply. Perpetuity is not repugnant in cases of religious or
charitable endowments.
3. Property settled upon individuals for memorable public services may be
exempted from the operation of this rule.

(4) The rule against perpetuity applies when interest in property is created and has
no application to personal contracts. A contract for sale of property does not of
itself create any interest in such property. Thus, a contract to pay money to a
person, his heirs or legal representatives upon a future contingency, which may
happen beyond the period prescribed would be perfectly valid.
(5) The rule also does not apply to contracts for perpetual renewal of leases.
(6) The rule also does not apply where only a charge is created, which does not
amount to a transfer of any interest e.g. when property is made merely security
for payment of money.
(7) A covenant of redemption in a mortgage does not offend the rule.

VESTED & CONTINGENT INTEREST
Vested interest: A vested interest is created in favour of a person – without

specifying the time when it is to take effect, or specifying that it is to take effect
forthwith, or on the happening of a certain event. It is ownership. It does not depend
upon the fulfilment of any condition.
It creates an immediate right, though the enjoyment may be postponed to a future

date. Thus, owner’s title is already perfect. It is not defeated by death of transferee
before he obtains possession. It is both transferable as well as heritable. If the
transferee of a vested interest dies before actual enjoyment, it passes on to his heirs.
Example: A makes a gift to B of Rs. 100 to be paid to him on the death of C. B

gets a vested interest, as the event, namely, C’s death is certain

Contingent Interest: A contingent interest is created in favour of a person – to take
effect only on the happening or not happening of a specified uncertain event, which
may or may not happen. It is only a chance of becoming an owner.
However, it is different from spes successions. It is solely dependent upon the

fulfilment of the condition (after which it becomes vested interest), so that if the
condition is not fulfilled, the interest may fall through. Thus, the owner’s title is as
yet imperfect, but is capable of becoming perfect. Whether it passes on the death of
the transferee or not depends on the nature of the contingency. It is transferable.
Whether it is heritable or not depends on the nature of the contingency. If the
transferee dies before obtaining possession, the contingent interest fails, and does not
pass on to his heirs.
Example: An estate is transferred to A if he shall pay Rs. 500 to B. A’s interest is

contingent until he paid Rs. 500 to B.

RULE OF ELECTION
• The Doctrine of Election is one of the most important areas of the law relating to
transfer of property. Section 35 of the Transfer of Property Act deals with this
doctrine. The primary element in the doctrine of election is the presence of
choice. The foundation of Election is that a person taking the benefit of an
instrument must also bear the burden.
• Generally, Election means choosing between two inconsistent or alternative
rights. Under any instrument if two rights are conferred on a person in such a
manner that one right is in lieu of the other, he is bound to elect only one of them.
In Beepathummav/s Kadambolithaya, SC held that- A person cannot take a
benefit under and against the same instrument. This means he cannot approbate
and reprobate at the same time. Example-Abu Bakar offer 1,00,000 to Joy in lieu
of transfer his house, So, Joy can elect only one, either he can retain the money
and transfer his house or deny the money, he cannot enjoy the both.
• Election is an obligation, to choose between two rights in a case where there is a
clear intention of the grantor that the grantee should not enjoy both.

The foundation of the doctrine of election is that the person taking a benefit under an
instrument must also bear the burden.
The doctrine of election may be stated in the classic words of Maitland as follows-
‘He who accepts a benefit under a deed or will or other instrument, must-
(a) Adopt the whole contents of that instrument,
(b) Conform to all its provisions and
(c) Renounce all rights that are inconsistent with it'.
The doctrine of election is based on the principle of equity that one cannot take what
is beneficial to him and disapprove that which is against him under the same
instrument. He cannot approbate and reprobate at the same time.
In simple words, where a person takes some benefit under a deed or instrument, he
must also bear its burden.

According to Section 35: Where a person ---
(i) Professes to transfer property which he has no right to transfer, and
(ii) As part of the same transaction, confers any benefit on the owner of the
property, such owner must elect either to confirm the transfer or to dissent from
it.
If he dissents from it----
(a) He must relinquish the benefit so conferred, and
(b) The benefit so relinquished reverts to the transferor or his representative as if it
had not been disposed of.
However, when such benefit reverts back to the transferor, it is subject to the charge
of making good to the disappointed transferee the amount or value of the property
attempted to be transferred in two cases, namely ---
(i) Where the transfer is gratuitous, and the transferor has, before election, died or
otherwise become incapable of making a fresh transfer; and
(ii) Where the transfer is for consideration.

A. Essential ingredients for the Doctrine of Election
Those are the essential ingredients for this doctrine:

(1) The transferor must not be owner of the property which he transfers.
(2) The transferor must at the same time grant some property, in the same
instrument, out of his own, to the owner of property.
(3) The two transfers i.e. transfer of the property of owner to the transferee and
conferment of benefit on the owner of property must be made in the same
transaction. Question of election does not arise if the two transfers are made by
virtue of two separate instruments.
(4) The owner must have proprietary interest in the property, a creditor is not put to
election as he has only a personal right to be paid by the debtor.
(5 ) The owner taking no benefit under a transaction directly, but diverting a benefit
under it indirectly, is not put to election.
(6 ) Question of election does not arise when benefit is given to a person in a
different capacity.

B. The conditions necessary for the Application of the doctrine of election:
1. When a person professes to transfer a property not his own

Professes means to purports or make contract, for a property which is not his
own but he can make contract for the same.
2. Part of the same transition
This Doctrine is only applicable when transfer and benefit form part of the same
transaction.
3. Benefit directly confer to the owner of the property
The Doctrine is only applicable when the real owners of the property directly
accept the benefit. But if the owner taking no benefit under a transaction
directly, diverting a benefit under it indirectly, is not put to election.
4. Doctrine of election section 35 first part always applicable for transferor:
Whether transferor believe him as a real owner or not of transfer property the
first part of this section always applicable for him.

C. Application of Doctrine of Election:
1. Indian Law: The principle underlying this section has always been applied to
Hindus. In the case of Rungamma v. Atchamma, the Privy Council referred to
the rule that a party shall not at the same time affirm and disaffirm the same
transaction- affirm it as far as it is for his benefit and disaffirm it as far as it is to
his prejudice.
2. Muslim Law: In the case of Sadik Hussain v. Hashim Ali, the Privy Council
applied this doctrine to Muslims also.
3. English Law: Under English Law, a transferee by electing against the transfer
does not lose his benefit but he becomes bound to make compensation out of it
to the disappointed person.

2. Exception to the Rule of Election under Section 35:
Section 35 provides that, where a particular benefit is expressed to be conferred

on the owner of the property which the transferor professes to transfer, and such
benefit is expressed to be in lieu of that property, if such owner claims the
property, he must relinquish the particular benefit. But he is not bound to
relinquish any other benefit conferred upon him by the same transaction.
1. Real owner is not bound to confer any other benefit of a particular

transaction:
Where a particular benefit is expressed to be conferred on the owner of the
property which the transferor professes to transfer, and such benefit is expressed
to be in lieu of that property, if such owner claims the property, he must
relinquish the particular benefit, but he is not bound to relinquish any other
benefit conferred upon him by the same transaction.

2. If real owner accepts the benefit before confirm election and waives enquiry
into the circumstances:
Acceptance of the benefit by the person on whom it is conferred constitutes an
election by him to confirm the transfer, if he is aware of his duty to elect and of
those circumstances which would influence the judgment of a reasonable man in
making an election, or if he waives enquiry into the circumstances.
3. Two years Enjoyment:
Such knowledge or waiver shall, in the absence of evidence to the contrary, be
presumed, if the person on whom the benefit has been conferred has enjoyed it
for two years without doing any act to express dissent according to Indian
succession act 1925 section 188[1] it was presumed that he approved the transfer
and need not apply the doctrine of election.
4. Impossible for real owner to back the previous position:
Such knowledge or waiver may be inferred from any act of his which renders it
impossible to place the persons interested in the property professed to
be transferred in the same condition as if such act had not been done.

5. Warning the real owner after certain period:
If he does not within one year after the date of the transfer signify to the
transferor or his representatives his intention to confirm or to dissent from the
transfer, the transferor or his representative may, upon the expiration of that
period, require him to make his election; and, if he does not comply with such
requisition within a reasonable time after he has received it, he shall be deemed
to have elected to confirm the transfer.
6. Suspension of election:
In case of disability by reason of infancy, lunacy, and so forth, the election
shall be postponed until the disability ceases, or until the election is made by
some competent authority.

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Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

CLASS & SEMESTER: B.A.LL.B VI SEMESTER

FACULTY NAME : Ms. Deepanjali Kashyap

Chanderprabhu Jain College of Higher Studies & School of Law

Movable Property Immovable Property

Chanderprabhu Jain College of Higher Studies & School of Law

 Section 3 Transfer of Property Act - It does not include standing timber,

 Section 2(6) Indian Registration Act, 1908 – Immovable property includes

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Right to worship, Royalty, a decree, Benefits to arise out of kind such as

Chanderprabhu Jain College of Higher Studies & School of Law

• “Transfer of property” defined. — (Sec 5)

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

(iv) To himself or himself with on or more other persons – A living person

Chanderprabhu Jain College of Higher Studies & School of Law

(1) Spes Successionis [sec 6(a)) – ‘Spes successionis’ means expectation of

(i) The chance of an heir-apparent succeeding to an estate- The term

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

(5) Maintenance [Sec 6 (dd)] - “A right to future maintenance, in whatsoever

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Exceptions to the rule against perpetuity

Chanderprabhu Jain College of Higher Studies & School of Law

(7) A covenant of redemption in a mortgage does not offend the rule.

Chanderprabhu Jain College of Higher Studies & School of Law

Vested interest: A vested interest is created in favour of a person – without

It creates an immediate right, though the enjoyment may be postponed to a future

Example: A makes a gift to B of Rs. 100 to be paid to him on the death of C. B

Chanderprabhu Jain College of Higher Studies & School of Law

However, it is different from spes successions. It is solely dependent upon the

Example: An estate is transferred to A if he shall pay Rs. 500 to B. A’s interest is

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Those are the essential ingredients for this doctrine:

Chanderprabhu Jain College of Higher Studies & School of Law

1. When a person professes to transfer a property not his own

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Section 35 provides that, where a particular benefit is expressed to be conferred

1. Real owner is not bound to confer any other benefit of a particular

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

Chanderprabhu Jain College of Higher Studies & School of Law

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